DOJ under fire for policy limiting watchdog probes

A prominent Democrat is joining Republicans in their rebuke of a Justice Department memo restricting agency watchdogs from accessing certain documents during an investigation.

The 68-page opinion by the DOJ’s Office of Legal Counsel allows the department to “forbid disclosures that have either an attenuated or no connection with the conduct of the department’s criminal law enforcement programs or operations.” The decision by the federal government’s top attorneys may also apply to other inspectors general at other federal agencies.

Rep. John Conyers (Mich.), the House Judiciary Committee’s top Democrat, sent a letter to the Justice Department on Thursday crying foul on the new policy.

“This opinion is a departure from the plain text of the statute and the intent of Congress when we drafted it — but this one memorandum hardly ends the conversation,” Conyers wrote. “The Inspector General must have complete and direct access to the information that his office deems necessary to conduct complete and impartial investigations. He should not have to ask permission from the very agency he oversees.”

Sens. Chuck Grassley (R-Iowa) and Ron Johnson (R-Wis.) and Rep. Bob Goodlatte (R-Va.) also expressed concern with the memo.

“I am deeply concerned that this opinion undermines the Department of Justice Office of Inspector General’s independence, and ultimately the independence of all inspectors general, as other agencies will likely use its misguided arguments to justify stonewalling their own watchdogs,” Johnson said.

Lawyers within the department — not the inspector general’s office — would ultimately make the determination about whether typically confidential documents meet the appropriate law enforcement or counterintelligence threshold needed to disclose them for an investigation.  

It seemingly goes against congressional intent laid out in statutes, which says that inspectors general may access “all” documents necessary to conduct oversight. Congress went even further in a funding bill last year with language intending to improve the reach and access of inspectors general.

The DOJ’s Office of Legal Counsel, within its memo, refuted these assertions, saying that there are legal examples of withholding information, such as in cases of consumer information disclosure policies, grand-jury secrecy rules and wiretap law.

“Applying the rule of relative specificity, we have often concluded that statutes barring the disclosure of particular types of information by particular entities, subject to particular exceptions, take precedence over statutes broadly entitling an entity to examine federal records,” the DOJ wrote in the memo.

The Inspector General Act, which lawmakers and the inspector general community say is at odds with this opinion, “does not contain the sort of language we have previously found sufficient to constitute a clear statement that Congress intends to override more specific statutory provisions that protect sensitive information,” the DOJ continued.

“Congress meant what it said when it authorized inspectors general to independently access ‘all’ documents necessary to conduct effective oversight,” Justice Department Inspector General Michael E. Horowitz countered in a statement on Thursday.

“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,” he continued. “We look forward to working with the Congress and the Justice Department to promptly remedy this serious situation.”

Government watchdogs are also piling on, with the Project On Government Oversight saying that the memo “makes a mockery of our government’s internal watchdog system.”

“It’s time for Congress to step in and reaffirm its intent that an IG’s authority to access agency records overrides restrictions contained in other laws. Congress should make it clear that IGs should have access to grand jury and electronic surveillance records,” said the group’s executive director, Danielle Brian, in a statement on Friday. “In addition, Congress should specify that agencies do not waive the attorney-client or other common law privileges when records are turned over to IGs.”