May 2008: DOJ Watchdog Could Bite Its Lawyers

Washington Watch | May 2008
By Bruce Moyer

Under pending congressional legislation, attorneys at the Department of Justice (DOJ) could be subject to greater scrutiny by the department's internal watchdog looking for potential practice wrongs. The legislation would extend the reach of the DOJ's Office of the Inspector General (OIG) to investigating allegations of misconduct on the part of the department's attorneys—a move that could upend the department's long-standing practices in the handling of misconduct charges against DOJ attorneys. The legislative proposal could also duplicate and ultimately diminish the authority of another internal affairs unit within the department—the Office of Professional Responsibility (OPR)—that possesses exclusive authority to look into alleged impropriety by DOJ lawyers.

Congressional interest in expanding the inspector general's power was prompted by last year's scandal over the firing of eight U.S. attorneys as well as by congressional concern over the potential politicization of prosecutions and other actions taken within the scope of DOJ's legal responsibilities. Last fall, the House of Representatives approved legislation expanding the investigatory authority of the DOJ's OIG; a similar Senate bill has been reported out of committee and awaits floor action.

Under the legislative proposals, the DOJ inspector general would have the right to pursue and investigate any misconduct allegation involving a Justice Department attorney. The Federal Bar Association largely opposes the legislative realignment, favoring the due process and fairness protections that consistently have been provided by OPR in its investigations of DOJ attorneys in the past. Investigations by the department's inspector general are usually conducted in manner that is more secretive than the OPR's.

Since it was created in 1975 in the wake of the Watergate scandal, the Office of Professional Responsibility—which consists of 22 lawyers and nine other employees and has a $5.5 million budget—has enjoyed exclusive jurisdiction over misconduct allegations involving the department's lawyers. On the other hand, the Office of the Inspector General—with approximately 450 staff members and a significantly larger budget—possesses the authority to investigate charges of waste, fraud, and abuse and has the authority to recommend criminal charges. The OIG typically concentrates on audits, alleged violations of criminal laws and administrative procedures, and misconduct charges against employees who are not lawyers.

The OPR is a unique institution in that no other federal department or agency has an office assigned exclusively to handle the investigation of allegations of misconduct by its attorneys. At the same time, no other department or agency has an attorney workforce that is the size of DOJ's: 10,000 attorneys, including 5,400 federal prosecutors. Under current law, the OPR has exclusive jurisdiction within the Department of Justice to investigate allegations of department attorneys' misconduct that relates to the exercise of their authority to investigate, litigate, or provide legal advice, as well as allegations of misconduct by law enforcement personnel when the allegations are related to allegations of attorney misconduct within the jurisdiction of the OPR.

The House bill (H.R. 928) and the Senate bill (S. 2324) would strike limitations in current law that require the inspector general to refer the investigation of allegations of misconduct by DOJ attorneys to OPR. Eliminating the referral requirement would open the door to the inspector general to conduct investigations of alleged misconduct by DOJ attorneys—matters that have been the exclusive province of OPR. The House and Senate bills would not abolish the OPR, but it is likely that they would reduce the authority and influence of that office.

Opinions differ on whether the current system used to investigate attorneys' misfeasance should change, with differing perspectives on the role and performance of the OPR. Many believe that, over the decades, the OPR has acquired a unique specialized expertise; others contend that OPR investigations take too long and the results are not made public. As the Legal Times reported,
"Some current and former Justice officials say a change in the way the DOJ handles investigations is long overdue. Others, including some Democrats, say the OPR has successfully operated independently for 32 years, and its staff—made up of career personnel—has withstood political pressure."

Whether Congress pushes ahead with the change could be influenced by how the OPR handles a high-profile investigation into the conduct of Justice Department attorneys who paved the way for the CIA's use of harsh interrogation techniques on terrorism suspects. The OPR's investigation focuses on the drafting of a highly publicized controversial memo issued by the DOJ's Office of Legal Counsel in August 2002 and related advisory memorandums subsequently issued by that office. The 2002 memo authorized aggressive interrogations, but lawyers in the Office of Legal Counsel withdrew it in 2004.

Bruce Moyer is government relations counsel for the FBA.
© 2008 Bruce Moyer. All rights reserved.

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