Helping the Justice Department recover from the politicization of the Trump years is at the top of Attorney General Merrick Garland’s agenda. That is why it is so puzzling that Garland’s Justice Department has come out against a measure - one that enjoys nearly unanimous, bipartisan support - that would help restore accountability to the battered institution.
The issue involves the authority of the department’s inspector general to investigate professional misconduct by the department’s lawyers - an authority that the inspector general now lacks. Yes, you read that right. Unique in the government, the Justice Department lacks the power to probe a significant - arguably the most significant - part of the department’s workforce. (The inspector general still has the FBI, Bureau of Prisons, Drug Enforcement Administration and other department components to kick around.)
Under a long-standing arrangement, first enshrined in the 1988 law that created the Justice inspector general, the job of reviewing the conduct of the department’s lawyers is largely left to the Office of Professional Responsibility. It isn’t up to the job and has long fallen short in performing it.
The department’s political appointees get to hire and, if they want, fire the head of the Office of Professional Responsibility; the inspector general is confirmed by the Senate and can be removed only by the president.
And the OPR serves, for the most part, as a black hole of accountability. Investigations may be launched, but the results are rarely made public, and then often grudgingly. The inspector general, by contrast, has a track record of producing compelling investigations, for public review. These include, to take just a few recent examples, the searing takedowns of the FBI’s handling of sexual abuse allegations against former USA Gymnastics physician Larry Nassar and the bureau’s error-ridden Crossfire Hurricane investigation into Russia and the Trump campaign.
But the inspector general operates under unnecessary constraints that may serve the interests of the department’s lawyers but do not serve the public. During the Trump administration, Inspector General Michael Horowitz had his hands tied for months when Attorney General William P. Barr intervened to reduce career prosecutors’ sentencing recommendation for Trump ally Roger Stone. Department officials rebuffed Horowitz’s bid to investigate the cushy plea deal obtained by Jeffrey Epstein; OPR conducted a probe that came in for wide criticism.
Amazingly enough, nearly everyone outside the department agrees this should change. The Senate Judiciary Committee last year approved a measure sponsored by Sens. Richard J. Durbin (D-Ill.) and Mike Lee (R-Utah) by a lopsided vote of 21 to 1. (The one was South Carolina Republican Sen. Lindsey O. Graham.) The House unanimously approved a companion bill.
With a Democratic administration in power, Durbin, to his credit, has kept at it. There is some prospect that the fix could be included as part of the must-pass defense authorization bill now before the Senate.
An attorney general who came to office promising to restore “the norms that have become part of the DNA of every Justice Department employee since Edward Levi’s stint as the first post-Watergate attorney general” should welcome the kind of beefed-up oversight that a more empowered inspector general would provide.
I get it - no one likes having an inspector general sniffing around and second-guessing. But every other inspector general has authority to investigate misconduct by lawyers. - - -
Ruth Marcus’ email address is firstname.lastname@example.org.