October 2008: Congress Declines to Give DOJ Watchdog More Teeth

Washington Watch | October 2008
By Bruce Moyer

Congress, in the closing days before adjournment in late September, stepped back from giving the inspector general at the Department of Justice (DOJ) expanded authority to investigate allegations of misconduct brought against attorneys in the department. This proposal, first reported here in the May 2008 issue, would have disrupted the exclusive authority held by an internal affairs unit within the department—the Office of Professional Responsibility (OPR)—to investigate wrongdoing by DOJ attorneys. Because OPR has done an admirable job of carrying out that responsibility and for other reasons, the Federal Bar Association urged Congress to refrain from conferring duplicative review authority on the DOJ inspector general (IG).

Late last year, the House of Representatives approved legislation (H.R. 928) expanding the investigatory power of the DOJ inspector general as part of a comprehensive bill instituting reforms in how IGs throughout the federal government perform their work. Senators opposed to the expansion of the authority of the DOJ's inspector general blocked the provisions from being included in the Senate version (S. 2324) of the IG reform bill, which was passed earlier this spring. Under the House bill, the DOJ inspector general would have the right to take on any misconduct allegation involving DOJ lawyers, including its 5,500 federal prosecutors.

In final action on Sept. 27, the House agreed to drop the DOJ inspector general provision from a final compromise version of the inspector general reform legislation, passed several days earlier by the Senate.

Since the OPR was created in 1975 in the wake of Watergate, the office—consisting of 22 lawyers and nine other employees with a $5.5 million budget—has enjoyed exclusive jurisdiction over misconduct allegations involving the department's lawyers. The office of inspector general (OIG) within DOJ, with a much larger staff and significantly larger budget, has the authority to investigate charges of waste, fraud, and abuse and to recommend criminal charges. The DOJ inspector general typically concentrates on audits and alleged violations of criminal laws and administrative procedures as well as misconduct charges against DOJ employees who are not lawyers.

Even though inspectors general in other federal departments and agencies possess the authority to investigate the misconduct of their respective employees and attorneys, the litigation responsibilities of DOJ attorneys and the bar malpractice implications of misconduct have justified the existence of OPR and the limitation of the investigatory authority of DOJ's OIG.

The Office of Professional Responsibility 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 the size of DOJ's, which has 10,000 attorneys. At times in the past, the OPR has fought for the preservation of its existence. In 1994, then Attorney General Janet Reno proposed merging OPR and DOJ's OIG, but she relented when the Republican-controlled Senate threatened to reject the Clinton administration's nominee to the DOJ's OIG post.

The House-approved bill had contained an amendment proposed by John Conyers (D-Mich.), chairman of the House Judiciary Committee, that would have struck limitations in the current law that require the DOJ's OIG to refer the investigation of allegations of misconduct by DOJ attorneys to the OPR. Striking the referral requirement would have opened the door for the DOJ's office of inspector general to conduct investigations relating to allegations of misconduct by DOJ attorneys—matters that heretofore were the exclusive province of the OPR.

In a Sept. 3 letter to congressional lawmakers, FBA President James S. Richardson Sr. wrote, "A considerable number of our 16,000 members are career-level federal attorneys, including many employed by the Department of Justice. They believe that current federal law and the underlying processes for the investigation of alleged wrongdoing by Department of Justice attorneys, through the involvement of the department's Office of Professional Responsibility, works well and should not be altered. Current investigatory procedures by the Office of Professional Responsibility assure the vigorous pursuit of wrongdoing and guarantee adequate due process for DOJ attorneys under investigation."

The House bill would not have abolished the OPR but certainly would have reduced its authority and influence. The DOJ inspector general had indicated that his office would have been inclined to refer such ethics and misconduct complaints to the OPR, although there was no guarantee that this practice would have continued under his or a successor's leadership, absent a statutory requirement. The Conyers amendment came at the height of the controversy over DOJ's handling of misconduct complaints as part of the scandal over U.S. attorneys and the charges of politicization of the department.

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

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