Obama administration restricts investigative powers of inspectors general. Uncle Joe Stalin would be proud.

Obama administration restricts investigative powers of inspectors general

By Kelly Riddell - The Washington Times - Thursday, July 23, 2015

The Obama administration formally announced inspectors general will have to be granted permission by their agency heads to gain access to grand jury, wiretap and fair credit information – an action that severely limits the watchdogs oversight capabilities, independence, and power to uncover fraud.

An opinion, issued by the Department of Justice's Office of Legal Counsel, says the Inspector General (IG) Act of 1978 – which was written by Congress to create the government watchdogs in order to help maintain integrity within their agencies – does not have the authority to override nondisclosure provisions in other laws, most notably in regards to grand jury, wiretap or fair credit information.

“In reaching these conclusions, our Office ‘s role has not been to decide what access [inspector generals] should receive as a matter of policy. Rather, we have endeavored to determine as a matter of law, using established tools of statutory construction, how best to reconcile the strong privacy protections…with the interest in access reflected in.. the IG Act,” OLC’s opinion, dated July 20 and released Thursday reads.

“I strongly disagree with the OLC opinion,” Michael Horowitz, the DOJ’s inspector general said in a statement. “Congress meant what it said when it authorized Inspectors General to independently access ‘all’ documents necessary to conduct effective oversight. Without such access, our Office’s ability to conduct its work will be significantly impaired, and it will be more difficult for us to detect and deter waste, fraud, and abuse, and to protect taxpayer dollars.”

Mr. Horowitz has had to seek former Attorney General Eric Holder’s permission, and now Loretta Lynch’s, to gain access to grand jury, wiretap and fair credit reporting material. The approval process in obtaining the materials delayed review of Operation Fast and Furious — the failed sting that lost track of more than 1,000 government-issued guns, one of which later was used to kill a U.S. Border Patrol agent — and has delayed other reports the inspector general is set to publish.

At no point has the Justice Department denied any of Mr. Horowitz’s requests, but some in Congress have argued that requiring the inspector general to ask the attorney general for materials represents a direct conflict of interest and impairs the inspector general’s independence.

“The Department has long held the position that the Inspector General should have access to all the information it needs to perform its essential oversight function,” said Emily Pierce, a DOJ spokeswoman. “Consistent with this view, Department leadership has implemented procedures to ensure that the Inspector General receives sensitive law enforcement information in a timely manner.

Additionally, the Department is committed to working with Congress and the Inspector General on legislation to address any gaps in the law that may hamper the Inspector General’s ability to access such information in a timely manner.”

Still, those assurances don’t sit well with some lawmakers – or the IG community.

“The Office of Legal Counsel’s efforts to reduce transparency will leave the Department of Justice vulnerable to mismanagement and misconduct. This is not the type of government the American people deserve,” said House Judiciary Committee Chairman Bob Goodlatte in a statement. “The House Judiciary Committee will work with other committees of jurisdiction to explore a legislative fix to reiterate Congress‘ intent that the Office of the Inspector General is entitled access to all documents and records within DOJ’s possession.”

Mr. Goodlatte, a lawyer himself, argued the reasoning within OLC’s opinion was the same that produced the Department of Justice’s infamous recess appointments memorandum, which was unanimously rejected by the Supreme Court in 2014.

“The law is clear that the Office of the Inspector General should have unfettered access to materials for its investigations, but political lawyers at the Department of Justice have engaged in legal gymnastics to shield key information from government watchdogs,” Mr. Goodlatte, a Virginia Republican said.

As the chairman of the inspectors general council, Mr. Horowitz has been pressing for resolution from either Congress or the OLC in clarifying his and other IG’s authority in gaining access to agency records – repeatedly saying agencies have proactively tried to stonewall certain investigations by questioning the IG’s power.

In Congressional testimony in February, Mr. Horowitz complained the FBI had failed to turn over key records in several whistleblower cases by the deadlines, citing other laws involving national security and privacy, that took precedence over his investigation.

Last August, Forty-seven federal inspector generals wrote a letter to Congress complaining about specific cases where some federal agencies such as the Peace Corps and the Environmental Protection Agency refused to hand over documents critical to their independent oversight.

Last year, Kathy Buller, the Peace Corps IG, testified to Congress her agency was refusing to hand over information related to sexual assault investigations, which she’s legislatively tasked with overseeing, because of privacy concerns.

And at the EPA, inspector general Arthur Elkins Jr. confirmed an EPA employee who had been accused of sexual harassment of some 16 women since 2004 as well as the inappropriate handling of classified information, retired on the same day he was asked by EPA officials to talk to the IG staff.

“Over the years, the trust piece has been rocked,” Mr. Elkins told website Government Executive this February. In other examples at the EPA, attorney-client privilege has been invoked to get around the IG’s information request.

“There’s no question an inspector general has a difficult but important job to do and without access to whatever records are involved in the mater the IG is auditing it’s extremely difficult for an IG to do a thorough job,” said John Malcolm, director of the Heritage Foundation’s Center for Legal and Judicial Studies. “The devil will be in the details of this opinion as to how debilitating it’s going to be.”