Coalition Letter on IG Access Act

The ACLU joined this coalition letter expressing support for the Inspector General Access Act of 2019 (S. 685 / H.R. 202), which would authorize the Department of Justice’s Inspector General to investigate allegations of professional misconduct by federal attorneys. The DOJ Inspector General is prohibited by a statutory carve-out from investigating DOJ attorneys, including federal prosecutors, even though other DOJ employees are already subject to the Inspector General’s jurisdiction. The legislation is intended to promote accountability, transparency, and integrity in the Department of Justice.

October 16, 2019

The Honorable Mike Lee
United States Senate

The Honorable Marsha Blackburn
United States Senate

The Honorable Charles Grassley
United States Senate

The Honorable Lisa Murkowski
United States Senate

The Honorable Marco Rubio
United States Senate

Dear Senators Lee, Blackburn, Grassley, Murkowski, and Rubio:

As a group of organizations that span the ideological spectrum and support a more accountable federal government, we write to thank you for your leadership in introducing the Inspector General Access Act of 2019 (S. 685).1 As you know, S. 685 is an identical companion bill to H.R. 202, which passed out of the House of Representatives in January of 2019 with bipartisan support.2

The Inspector General Access Act is commonsense legislation that would make a simple yet vital revision to the Inspector General Act of 1978 that we believe will enhance the accountability of the Department of Justice (DOJ) by allowing the DOJ inspector general to investigate allegations of misconduct by federal attorneys.

Unlike most federal agencies with inspectors general, the DOJ inspector general does not have the authority to investigate matters of alleged professional misconduct by DOJ attorneys under current law. However, by striking this jurisdictional carve-out from Section 8E of the Inspector General Act of 1978, the Inspector General Access Act would bring DOJ in line with standard federal agency practice and mitigate real and perceived issues of accountability around the conduct of federal attorneys, including federal prosecutors.

This reform is not a solution in search of a problem. Under current policy and practice, alleged professional wrongdoing or other issues relating to professional misconduct by DOJ attorneys are handled by an internal and non-independent entity, the Office of Professional Responsibility.

A review of the Office of Professional Responsibility’s reports and data demonstrates that the office has found a significant amount of prosecutorial misconduct and other professional lapses by DOJ attorneys in recent decades.3 Unfortunately, these instances have been paired with a persistent and pernicious lack of efficacy and consistency in the office’s investigations, including relatively little accountability in the face of clear misconduct.4 The result is that DOJ attorneys are getting away with reckless or intentional misconduct, with little or no meaningful opportunity for public scrutiny.

Just as problematic, DOJ does not generally allow the names of attorneys who have engaged in professional misconduct or the details of the relevant cases to be made public. In other words, the Office of Professional Responsibility has clearly shown itself to be ill-equipped and insufficiently independent to adequately hold DOJ attorneys accountable when necessary. This lack of transparency at DOJ continues to undergird an environment of opacity and impunity.

By definition and longstanding practice, inspectors general are best-suited to facilitate investigations into waste, fraud, and abuse within their relevant agency jurisdictions. As a result, inspectors general are a valuable resource for the American taxpayer, as well as for the health of the federal government.

Given that DOJ attorneys are among the most powerful federal employees—with the ability to make life-and-death decisions—it is imperative that their professionalism and official actions be beyond reproach. It is therefore critical for an independent watchdog, such as an inspector general, to have the statutory authority to investigate any allegations that may call into question the actions and conduct of DOJ attorneys.

By advancing this legislation, you have taken an important step toward alleviating public concern around these issues while also providing the potential for a more robust environment of accountability at DOJ.

We applaud your leadership on this matter, and support your efforts to advance this legislation in the 116th Congress.

Sincerely,

ACLU
Americans for Prosperity
Brennan Center for Justice
Campaign for Liberty
Cause of Action Institute
Coalition for Humane Immigrant Rights
Demand Progress
Due Process Institute
FAMM
Government Accountability Project
Innocence Project
NAACP
National Association of Criminal Defense Lawyers
National Freedom of Information Coalition
National Security Counselors
Network Lobby for Catholic Social Justice
Niskanen Center
Open the Government
Project On Government Oversight
Protect Democracy
Public Citizen
Republicans for the Rule of Law
R Street Institute
Stand Up Republic

[1] Inspector General Access Act of 2019, S. 685, 116th Cong., (2019). https://www.congress.gov/bill/116th-congress/senate-bill/685

[2] Inspector General Access Act of 2019, H.R. 202, 116th Cong., (2019).https://www.congress.gov/116/bills/hr202/BILLS-116hr202rfs.pdf

[3] Nick Schwellenbach, Hundreds of Justice Department Attorneys Violated Professional Rules, Laws, or Ethical Standards, Project On Government Oversight (March 13, 2014).https://www.pogo.org/report/2014/03/hundreds-of-justice-department-attorneys-violated-professional-rules-laws-or-ethical-standards/

[4] Nick Schwellenbach, “Acosta-Epstein Deal Sparks Calls for Independent DOJ,” Project On Government Oversight, January 10, 2019. https://www.pogo.org/analysis/2019/01/acosta-epstein-deal-sparks-calls-for-independent-doj-misconduct-investigations/