[House Report 115-1045]
[From the U.S. Government Publishing Office]
115th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 115-1045
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INSPECTOR GENERAL ACCESS ACT OF 2017
_______
November 27, 2018.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Gowdy, from the Committee on Oversight and Government Reform,
submitted the following
R E P O R T
[To accompany H.R. 3154]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Government Reform, to whom
was referred the bill (H.R. 3154) to amend the Inspector
General Act of 1978 relative to the powers of the Department of
Justice Inspector General, having considered the same, report
favorably thereon without amendment and recommend that the bill
do pass.
CONTENTS
Page
Summary and Purpose of Legislation.............................. 2
Background and Need for Legislation............................. 2
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 3
Statement of General Performance Goals and Objectives........... 3
Legislative History............................................. 3
Committee Consideration......................................... 3
Roll Call Votes................................................. 3
Explanation of Amendments....................................... 4
Application of Law to the Legislative Branch.................... 4
Duplication of Federal Programs................................. 4
Disclosure of Directed Rule Makings............................. 4
Federal Advisory Committee Act.................................. 4
Unfunded Mandates Statement..................................... 4
Earmark Identification.......................................... 4
Committee Estimate.............................................. 4
New Budget Authority and Congressional Budget Office Cost
Estimate....................................................... 5
Section-by-Section Analysis..................................... 5
Changes in Existing Law Made by the Bill, as Reported........... 6
Summary and Purpose of Legislation
H.R. 3154, the Inspector General Access Act of 2017,
harmonizes the Department of Justice (DOJ) Office of Inspector
General's (OIG) authority to investigate all allegations of
misconduct at the Department of Justice. The bill repeals a
provision requiring the OIG to refer certain allegations of
misconduct involving DOJ attorneys to the DOJ Office of
Professional Responsibility (OPR).
Background and Need for Legislation
H.R. 3154 addresses a statutory relic that prevents the DOJ
OIG from investigating certain misconduct at DOJ. Currently,
the DOJ OIG must refer allegations of misconduct by DOJ
attorneys to the DOJ OPR, rather than initiate an investigation
itself. The DOJ OPR was in existence prior to the statutory
creation of the DOJ OIG in 1988, and DOJ OPR retained this
specific authority when the DOJ OIG was created. The
legislation addresses this issue by amending section 8E of the
Inspector General Act of 1978 to repeal the provision requiring
the DOJ OIG to refer allegations of misconduct.\1\
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\1\5 U.S.C. App.
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This bifurcation of investigative authority is unnecessary.
The DOJ OIG is in some cases better positioned to conduct
investigations of DOJ attorneys than OPR. For instance, the DOJ
OIG--like all federal OIGs--maintains a level of independence
from the management of the agency it oversees.\2\ This helps
limit the potential for conflicts of interest that may cause a
biased review. OPR does not have the same statutory requirement
for independence. The Director of OPR is selected and appointed
by the Attorney General, answers to the Attorney General, and
can be removed or disciplined by the Attorney General. The DOJ
Inspector General is appointed by the President, confirmed by
the Senate, and can only be removed by the President after
notification to Congress.\3\
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\2\Inspector General Act of 1978 Sec. 3(a); Pub. L. No. 95-452.
\3\Council of the Inspectors Gen. on Integrity & Efficiency, the
Inspectors General, (July 14, 2014), https://www.ignet.gov/sites/
default/files/files/IG_Authorities_Paper_-_Final_6-11-14.pdf.
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The DOJ OIG's independence is bolstered by the transparency
of the work the office conducts. For instance, DOJ OIG audits
and investigative reports are available on a publicly
accessible website.\4\ The public website contains a full
archive of DOJ OIG's completed reports and limits information
only when necessary pursuant to statutory or other
restrictions. The OIG recently began publishing summaries of
investigations that resulted in findings of administrative
misconduct, even when the subject is not prosecuted.\5\ This is
in stark contrast to the content available on the DOJ OPR's
website. The DOJ OPR only publishes summaries of a sample of
cases investigated by the office and in a single, annual
report.\6\ Thus, it is difficult to assess the office's
findings and conclusions.
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\4\Dep't of Justice Office of the Inspector Gen., Reports, https://
oig.justice.gov/reports/ (last visited Oct. 16, 2018).
\5\Dep't of Justice Office of the Inspector Gen., Investigative
Findings in Cases Involving Administrative Misconduct, https://
oig.justice.gov/reports/inv-findings.htm (last visited Oct. 16, 2018).
\6\Dep't of Justice Office of Professional Responsibility,
Resources: OPR Annual Reports, https://www.justice.gov/opr/resources
(last visited Oct. 16, 2018).
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The restrictions on the scope of DOJ OIG's investigative
authority are unique. With few exceptions, other OIGs do not
face similar limitations on their investigative authority. DOJ
Inspector General Michael Horowitz testified before the
Committee on November 15, 2017, on this very issue, explaining
the need to repeal the provision.\7\ The Government
Accountability Office offered a similar recommendation,
advising Congress that ``transferring OPR's functions into
[the] OIG would promote the basic principles underlying the
Inspector General Act.''\8\
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\7\Recommendations and Reforms from the Inspectors General: Hearing
Before the H. Comm. on Oversight & Gov't Reform, 115th Cong. (2017)
(statement of Michael Horowitz, Inspector Gen., Dep't of Justice),
https://oig.justice.gov/testimony/t170321.pdf.
\8\Letter from Office of Gen. Counsel, General Accounting Office,
to Jack Brooks, Chairman, H. Comm. on the Judiciary (GAO/OGC-94-24)
(Apr. 15, 1994), http://www.gao.gov/assets/400/390452.pdf.
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Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the previous section.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goal or objective of this bill is to amend the Inspector
General Act of 1978 relative to the powers of the Department of
Justice Inspector General.
Legislative History
On June 29, 2017, Representative Cedric Richmond (D-LA)
introduced H.R. 3154, the Inspector General Access Act of 2017,
with Representatives Jody Hice (R-GA) and John Conyers (D-MI).
H.R. 3154 was referred to the Committee on Oversight and
Government Reform. The Committee considered H.R. 3154 at a
business meeting on September 27, 2018 and ordered the bill
favorably reported by unanimous consent.
Senator Mike Lee (R-UT), Senator Chuck Grassley (R-IA), and
Senator Lisa Murkowski (R-AK) introduced S. 3003, the Senate
companion to H.R. 3154, on June 6, 2018. S. 3003 was referred
to the Senate Committee on the Judiciary.
In the 114th Congress, Representative Richmond introduced
H.R. 2240, the Inspector General Access Act of 2015, an
identical bill to H.R. 3154. H.R. 2240 was referred to the
Committee on Oversight and Government Reform. Also in the 114th
Congress, Senator Lee introduced S. 618 as a companion to H.R.
2240.
Committee Consideration
On September 27, 2018, the Committee met in open session
and, with a quorum being present, ordered the bill favorably
reported by unanimous consent, without amendment.
Roll Call Votes
There were no roll call votes requested or conducted during
Committee consideration of H.R. 3154.
Explanation of Amendments
There were no amendments to H.R. 3154 offered or adopted
during Committee consideration of the bill.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to the terms and conditions of
employment or access to public services and accommodations.
This bill amends the Inspector General Act of 1978 relative to
the powers of the Department of Justice Inspector General. As
such, this bill does not relate to employment or access to
public services and accommodations.
Duplication of Federal Programs
In accordance with clause 2(c)(5) of rule XIII no provision
of this bill establishes or reauthorizes a program of the
Federal Government known to be duplicative of another Federal
program, a program that was included in any report from the
Government Accountability Office to Congress pursuant to
section 21 of Public Law 111-139, or a program related to a
program identified in the most recent Catalog of Federal
Domestic Assistance.
Disclosure of Directed Rule Makings
This bill does not direct the completion of any specific
rule makings within the meaning of section 551 of title 5,
United States Code.
Federal Advisory Committee Act
The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of Section 5(b) of the appendix to title 5,
United States Code.
Unfunded Mandates Statement
Pursuant to section 423 of the Congressional Budget Act of
1974 the Committee has included a letter received from the
Congressional Budget Office below.
Earmark Identification
This bill does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI of the House of Representatives.
Committee Estimate
Pursuant to clause 3(d)(2)(B) of rule XIII of the Rules of
the House of Representatives, the Committee includes below a
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
New Budget Authority and Congressional Budget Office Cost Estimate
Pursuant to clause 3(c)(3) of rule XIII of the House of
Representatives, the cost estimate prepared by the
Congressional Budget Office and submitted pursuant to section
402 of the Congressional Budget Act of 1974 is as follows:
U.S. Congress,
Congressional Budget Office,
Washington, DC, October 11, 2018.
Hon. Trey Gowdy,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3154, the
Inspector General Access Act of 2017.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
Mark P. Hadley
(For Keith Hall, Director).
Enclosure.
H.R. 3154--Inspector General Access Act of 2017
H.R. 3154 would shift authority within the Department of
Justice to investigate certain cases of internal misconduct.
Some cases that are now handled by the Office of Professional
Responsibility would instead be handled by the Office of
Inspector General. Using information from the department, CBO
estimates that implementing H.R. 3154 would not significantly
affect spending in any fiscal year because the department could
implement the bill with existing personnel.
Enacting the legislation would not affect direct spending
or revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting H.R. 3154 would not increase
net direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2029.
H.R. 3154 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
The CBO staff contact for this estimate is Mark Grabowicz.
The estimate was reviewed by H. Samuel Papenfuss, Deputy
Assistant Director for Budget Analysis.
Section-by-Section Analysis
Section 1. Short title
Section 1 establishes the short title of the bill.
Section 2. Investigations of Department of Justice personnel
Section 2 amends section 8E of the Inspector General Act of
1978 (Appendix to title 5, United States Code) to repeal a
provision requiring the Department of Justice Inspector General
to refer allegations of misconduct involving Department
attorneys to the Office of Professional Responsibility if the
allegations relate to the exercise of the authority of an
attorney to investigate, litigate, or provide legal advice.
Also, this section makes several technical changes to the
surrounding paragraphs to reflect the repeal.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
INSPECTOR GENERAL ACT OF 1978
* * * * * * *
special provisions concerning the department of justice
Sec. 8E. (a)(1) Notwithstanding the last two sentences of
section 3(a), the Inspector General shall be under the
authority, direction, and control of the Attorney General with
respect to audits or investigations, or the issuance of
subpoenas, which require access to sensitive information
concerning--
(A) ongoing civil or criminal investigations or
proceedings;
(B) undercover operations;
(C) the identity of confidential sources, including
protected witnesses;
(D) intelligence or counterintelligence matters; or
(E) other matters the disclosure of which would
constitute a serious threat to national security.
(2) With respect to the information described under paragraph
(1), the Attorney General may prohibit the Inspector General
from carrying out or completing any audit or investigation,
from accessing information described in paragraph (1), or from
issuing any subpoena, after such Inspector General has decided
to initiate, carry out, or complete such audit or
investigation, access such information, or to issue such
subpoena, if the Attorney General determines that such
prohibition is necessary to prevent the disclosure of any
information described under paragraph (1) or to prevent the
significant impairment to the national interests of the United
States.
(3) If the Attorney General exercises any power under
paragraph (1) or (2), the Attorney General shall notify the
Inspector General in writing stating the reasons for such
exercise. Within 30 days after receipt of any such notice, the
Inspector General shall transmit a copy of such notice to the
Committees on Governmental Affairs and Judiciary of the Senate
and the Committees on Government Operations and Judiciary of
the House of Representatives, and to other appropriate
committees or subcommittees of the Congress.
(b) In carrying out the duties and responsibilities specified
in this Act, the Inspector General of the Department of
Justice--
(1) may initiate, conduct and supervise such audits
and investigations in the Department of Justice as the
Inspector General considers appropriate;
(2) except as specified in subsection (a) [and
paragraph (3)], may investigate allegations of criminal
wrongdoing or administrative misconduct by an employee
of the Department of Justice, or may, in the discretion
of the Inspector General, refer such allegations to the
Office of Professional Responsibility or the internal
affairs office of the appropriate component of the
Department of Justice;
[(3) shall refer to the Counsel, Office of
Professional Responsibility of the Department of
Justice, allegations of misconduct involving Department
attorneys, investigators, or law enforcement personnel,
where the allegations relate to the exercise of the
authority of an attorney to investigate, litigate, or
provide legal advice, except that no such referral
shall be made if the attorney is employed in the Office
of Professional Responsibility;]
[(4)] (3) may investigate allegations of criminal
wrongdoing or administrative misconduct by a person who
is the head of any agency or component of the
Department of Justice; and
[(5)] (4) shall forward the results of any
investigation conducted under [paragraph (4)] paragraph
(3), along with any appropriate recommendation for
disciplinary action, to the Attorney General.
(c) Any report required to be transmitted by the Attorney
General to the appropriate committees or subcommittees of the
Congress under section 5(d) shall also be transmitted, within
the seven-day period specified under such section, to the
Committees on the Judiciary and Governmental Affairs of the
Senate and the Committees on the Judiciary and Government
Operations of the House of Representatives.
(d) The Attorney General shall ensure by regulation that any
component of the Department of Justice receiving a nonfrivolous
allegation of criminal wrongdoing or administrative misconduct
by an employee of the Department of Justice[, except with
respect to allegations described in subsection (b)(3),] shall
report that information to the Inspector General.
* * * * * * *
[all]