[Pages H563-H566]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

INSPECTOR GENERAL ACCESS ACT OF 2019

Mr. CUMMINGS. Madam Speaker, I move to suspend the rules and pass the
bill (H.R. 202) to amend the Inspector General Act of 1978 relative to
the powers of the Department of Justice Inspector General.
The Clerk read the title of the bill.
The text of the bill is as follows:

H.R. 202

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Inspector General Access Act
of 2019''.

SEC. 2. INVESTIGATIONS OF DEPARTMENT OF JUSTICE PERSONNEL.

Section 8E of the Inspector General Act of 1978 (5 U.S.C.
App.) is amended--
(1) in subsection (b)--
(A) in paragraph (2), by striking ``and paragraph (3)'';
(B) by striking paragraph (3);
(C) by redesignating paragraphs (4) and (5) as paragraphs
(3) and (4), respectively; and
(D) in paragraph (4), as redesignated, by striking
``paragraph (4)'' and inserting ``paragraph (3)''; and
(2) in subsection (d), by striking ``, except with respect
to allegations described in subsection (b)(3),''.

The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Maryland (Mr. Cummings) and the gentlewoman from North Carolina (Ms.
Foxx) each will control 20 minutes.
The Chair recognizes the gentleman from Maryland.

{time} 1315

General Leave

Mr. CUMMINGS. Madam Speaker, I ask unanimous consent that all Members
have 5 legislative days to revise and extend their remarks and include
extraneous material on the measure before us today.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Maryland?
There was no objection.
Mr. CUMMINGS. Madam Speaker, I yield myself such time as I may
consume.
Madam Speaker, I rise today in strong support of H.R. 202, the
Inspector General Access Act. I thank Representatives Richmond, Hice,
and Lynch for the bipartisan manner in which they worked on this very
important bill in the last Congress.
The Inspector General Access Act would allow the inspector general of
the Department of Justice to investigate allegations of misconduct by
Department attorneys. The IG is statutorily independent and currently
has the authority to investigate other DOJ personnel.
The IG is barred from pursuing appropriate investigations into
attorneys at the Department. Under current law, the authority to
investigate attorneys is restricted to the Office of Professional
Responsibility within DOJ. OPR is not statutorily independent, and its
head is not confirmed by the Senate like the IG is. Treating attorneys
differently from other personnel is simply unfair.
Michael Horowitz, the inspector general at the Department of Justice,
recently testified before our Committee on Oversight and Reform, and
this is what he said: ``This bifurcated jurisdiction creates a system
where misconduct by FBI agents and other DOJ law enforcement officers
is conducted by a statutorily-independent IG appointed by the President
and confirmed by the Senate, while misconduct by DOJ prosecutors is
investigated by a component head who is appointed by the Department's
leadership and who lacks statutory independence. There is no principled
reason for treating misconduct by Federal prosecutors differently than
misconduct by DOJ law enforcement agents.''
H.R. 202 would not prohibit OPR from investigating attorneys. It
would simply add the ability to investigate attorneys, when appropriate
to the IG's authority, an additional layer of accountability.
Empowering IGs has been and should continue to be a nonpartisan
issue. The Committee on Oversight and Reform relies on the work of IGs.
We strongly support efforts to help them do their jobs effectively and
efficiently.
A bill identical to the one before us passed the House on a voice
vote in the last Congress. I urge my colleagues to continue their
support for IGs by supporting the Inspector General Access Act.

[[Page H564]]

Madam Speaker, I reserve the balance of my time.
Ms. FOXX of North Carolina. Madam Speaker, I yield myself such time
as I may consume.
Madam Speaker, I rise today in support of H.R. 202, the Inspector
General Access Act of 2019. Inspectors general perform a critical
oversight function with regard to misconduct at their respective
agencies. This committee, the Oversight and Reform Committee, has a
long history of advocating for IGs to have timely and complete access
to all the information they need to fulfill their oversight and
investigative functions.
In continuance of that mission, H.R. 202 removes an unnecessary and
outdated statutory hurdle that prevents the inspector general from
investigating certain misconduct at the Department of Justice, DOJ.
Current law requires the DOJ IG to refer allegations of misconduct by
Department attorneys to the Office of Professional Responsibility, or
OPR, rather than initiate an investigation himself. The OPR existed
prior to the statutory creation of the DOJ IG in 1988. At the time DOJ
IG was created, OPR retained the specific authority.
H.R. 202 seeks to harmonize the Department of Justice IG's
investigative authority with the rest of the Federal inspectors general
who are not similarly restricted. Congress and this committee have
consistently supported the need for independent and transparent
oversight of Federal agencies and programs. The current bifurcation of
investigative authority at DOJ is inconsistent with this committee's
history of supporting the notion of an unencumbered IG.
The DOJ IG is not without its own oversight. The IG is confirmed by
the Senate, accountable to the public, and is only removable by the
President after notification to Congress. Further, the IG has statutory
reporting obligations to both agency leadership and Congress.
The OPR, in contrast, lacks such independence from the agency it is
obligated to investigate. The director of OPR is selected and appointed
by the attorney general, answers to the attorney general, and can be
removed or disciplined only by the attorney general. The IG's
independence is critical to the value of their work.
Also critical to the value of the IG's work is transparency. The IG
maintains transparency by publishing its reports on a public website.
The website also contains information about the IG's operations and
functions and a full archive of completed and ongoing work. This
standard of transparency does not apply to OPR. Adverse findings by OPR
against a DOJ lawyer are subject to review by the Department's
leadership and can be overruled by the Department's leadership without
any transparency.
It is important to note that this division of authority is a unique
situation amongst the Federal IG community. The need for this
legislation has also been discussed in multiple hearings before the
Oversight and Reform Committee and in reports by watchdog groups.
The DOJ IG, Michael Horowitz, testified before the Oversight and
Reform Committee on the importance of eliminating this discrepancy.
Congress's own watchdog, the Government Accountability Office, has
issued reports with recommendations to empower the DOJ IG.
This is a good bill, Madam Speaker, and I urge my colleagues to
support it. With that, I reserve the balance of my time.
Mr. CUMMINGS. Madam Speaker, I yield 3 minutes to the distinguished
gentlewoman from the State of Florida (Ms. Wasserman Schultz).
Ms. WASSERMAN SCHULTZ. Madam Speaker, I thank the gentleman for
yielding.
Madam Speaker, I rise today to urge Congress to pass the Inspector
General Access Act of 2019. This act, I am pleased to underscore,
enjoys broad bipartisan support from this body now and has in the past,
but its approval is more urgent now.
The actions, for example, of former U.S. Attorney Alex Acosta have
drawn intense scrutiny since new revelations surrounding a plea deal he
offered to a serial pedophile came to light.
Based on newly reported documents and a group of brave women who came
forward to share their stories, it appears that Acosta gave a
sweetheart deal to a wealthy and well-connected sex offender and hid it
from his victims, some of whom were still in the midst of coming
forward.
Acosta is now the U.S. Secretary of Labor, a position that handles
workplace harassment and sex trafficking policies, yet he has refused
to discuss the new allegations. This IG Access Act would explicitly
allow the Department of Justice Office of Inspector General to
investigate allegations of such alleged misconduct.
It is a power that the IG office--as has been pointed out by both the
chair and ranking member here, it is a power that the IG office already
has when it comes to investigating allegations made against any of the
DOJ's many law enforcement agents, from the Federal Bureau of
Investigation to the U.S. Marshals Service.
This act has received broad bipartisan support, both in successive
Congresses and from the Government Accountability Office, but because
of an unusual carve-out, the DOJ's inspector general is believed to be,
as the ranking member said, the only Federal agency that has no
explicit power to review the conduct of its own attorneys.
If professional misconduct was involved in Acosta's handling of
Jeffrey Epstein's plea deal, potentially dozens of victims of this
connected multimillionaire have a right to know. Acosta's seemingly
unethical decision to drastically reduce the criminal penalties against
this vile sexual predator and to shield his other coconspirators is
simply unacceptable.
The American people and the victims of these horrific crimes deserve
to know why justice was not served in this disturbing case, and the
lack of transparency still cloaking it is deeply disturbing.
Giving the DOJ's inspector general more explicit and independent
power to pull back the cloak of secrecy on Acosta's sweetheart deal
goes to the heart of transparency and accountability that this office
stands for and that this bill would insist upon.
Ms. FOXX of North Carolina. Madam Speaker, again, I urge the adoption
of this bill, and I yield back the balance of my time.
Mr. CUMMINGS. Madam Speaker, I yield myself such time as I may
consume.
On November 29, 2018, DOJ Inspector General Michael Horowitz sent a
letter to the Oversight and Reform Committee in support of the
Inspector General Access Act, and this is what he wrote: ``Providing
the OIG with authority to exercise jurisdiction in attorney
professional misconduct cases would enhance the public's confidence in
the outcomes of these investigations and provide the OIG with the same
authority as every other inspector general.''
I include Mr. Horowitz's letter in the Record.

U.S. Department of Justice,

Office of the Inspector General,

November 29, 2018.
Hon. Trey Gowdy,
Chairman, Committee on Oversight and Government Reform, House
of Representatives, Washington, DC.
Hon. Elijah E. Cummings,
Ranking Member, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
Dear Mr. Chairman and Ranking Member Cummings: I write to
express my strong support for H.R. 3154, the ``Inspector
General Access Act of 2017'' (Access Act), which your
Committee approved unanimously on September 27, 2018. The
Access Act would amend the Inspector General Act (IG Act) to
provide the Department of Justice (DOJ) Office of the
Inspector General (OIG) with authority to investigate
allegations of misconduct against DOJ attorneys for their
actions as lawyers, just as the OIG has authority under the
IG Act to investigate allegations of misconduct made against
any non-lawyer in the Department, including law enforcement
agents at the Federal Bureau of Investigation (FBI), the Drug
Enforcement Administration (DEA), the Bureau of Alcohol,
Tobacco, Firearms and Explosives (ATF), and the U.S. Marshals
Service (USMS). Currently, under Section 8E of the Inspector
General Act, the OIG does not have the authority to
investigate allegations of misconduct made against DOJ
attorneys acting in their capacity as lawyers; this role is
reserved exclusively for the Department's Office of
Professional Responsibility (OPR).
The Access Act has received broad, bipartisan support over
successive Congresses because it promotes independent
oversight, transparency, and accountability within DOJ and
for all of its employees. For these

[[Page H565]]

same reasons, in 1994, the then-General Accounting Office,
now the Government Accountability Office (GAO), issued a
report that found that preventing the OIG from investigating
attorney misconduct was inconsistent with the independence
and accountability that Congress envisioned under the IG Act.
The OIG has long questioned this carve-out because OPR
lacks statutory independence and does not regularly release
its reports and conclusions to the public. Moreover, to our
knowledge, the DOJ Inspector General is the only Inspector
General in the entire federal government that does not have
the authority to investigate alleged professional misconduct
by attorneys who work in the agency it oversees. Providing
the OIG with authority to exercise jurisdiction in attorney
professional misconduct cases would enhance the public's
confidence in the outcomes of these investigations and
provide the OIG with the same authority as every other
Inspector General.
Alleged professional misconduct by DOJ prosecutors, like
any alleged misconduct by DOJ agents, should be subject to
statutorily independent oversight:
Over fifteen years ago, the Department and Congress
recognized the importance of statutorily independent OIG
oversight over all DOJ law enforcement components (FBI, DEA,
USMS, and ATF) when Attorney General Ashcroft authorized the
OIG to conduct additional law enforcement oversight in 2001
and Congress legislated it in 2002. Yet, allegations against
Department prosecutors for professional misconduct continue
to be handled exclusively by OPR. As a result, presently, if
an allegation of misconduct is made against the FBI Director,
it is reviewed by the OIG; by contrast, if an allegation of
professional misconduct is made against the Attorney General,
it is handled by OPR, a Departmental component that the
Attorney General supervises.
The rationale supporting independent oversight for alleged
misconduct by law enforcement applies with equal force to
alleged wrongdoing by federal prosecutors, regardless of the
nature of the alleged misconduct. There is no principled
reason to have two standards of oversight at DOJ--one for
federal agents, who are subject to statutorily independent
and transparent oversight by the OIG, and one for federal
prosecutors, who are not for allegations of professional
misconduct. This is particularly true given the extraordinary
power that Department lawyers have to charge individuals with
crimes, to seek incarceration, and to pursue the seizure of
assets and property.
The OIG's independence, established by statutory
authorities and protections, facilitates objective and
credible investigations of misconduct allegations, as well as
unbiased reports that identify and make useful
recommendations for improving the Department. The OIG is
headed by a Senate-confirmed Inspector General who can only
be removed by the President, with prior notice to Congress.
The OIG's statutory independence is bolstered by the OIG's
dual obligation to report findings and concerns both to the
Attorney General and to Congress. The independent OIG is able
to make critical investigative and audit findings without
fear of reprisal.
Conversely, OPR has no statutory independence or
protections. The OPR Counsel is appointed by and answers to
the Attorney General, and can be removed or disciplined by
the Attorney General. Although a November 27, 2018 letter
from DOJ's Office of Legislative Affairs (OLA) on H.R. 3154
states that ``OPR has always acted independently,'' it does
not point to any protections, statutory or otherwise, that
exist to ensure OPR's independence from the Attorney General,
nor has DOJ proposed strengthening OPR's independence by
adding such protections. Indeed, the letter fails to explain
or even address why DOJ believes it is better to have a non-
statutorily independent entity handle attorney professional
misconduct cases rather than a statutorily independent
organization, as is the case for law enforcement professional
misconduct allegations.
The OIG's independent and transparent oversight enhances
the public's confidence in the DOD's programs and improves
its operations:
In addition to independence, the OIG considers transparency
a crucial component of its oversight mission. With limited
exceptions, the OIG ensures that the public is aware of the
results of our work. The majority of our reports are posted
on our public website at the time of release to ensure that
Congress and the public are informed of our findings, in a
comprehensive and timely manner. The OIG, consistent with the
IG Act, publishes on our website summaries of investigations
resulting in findings of administrative misconduct by senior
government employees and in matters of public interest even
when the subject is not prosecuted. We post such summaries
without identifying the investigative subject consistent with
the legal requirements under the Privacy Act. Because of this
commitment to transparency, there are currently hundreds of
OIG reports, audits, and reviews posted on our web site.
There are also summaries of dozens of OIG investigative
reports posted, including recent reports involving
significant misconduct by senior DOJ officials.
In contrast, there are currently only a total of five
reports (other than annual reports) posted on OPR's website.
Four of those five reports are from 2008 and were the result
of OPR's joint work with the OIG, and which the OIG posted on
our website consistent with the IG Act and our practice. The
fifth report was completed by OPR in 2013 and only released
in 2015 in response to a Freedom of Information Act (FOIA)
request. Moreover, although the OLA letter states that ``OPR
discloses a substantial amount of information about its work
and findings in its annual report,'' this information is not
reported in a timely or comprehensive manner. Congress and
the public only find out about some, but not necessarily all,
of OPR's work when it issues an annual report.
An example of this dichotomy can be found in a case
involving an Oregon lawyer who was arrested by the FBI and
wrongly imprisoned after mismatched fingerprints linked him
to the 2004 bombing at a Madrid train station. The OIG
investigated the allegations of FBI agent misconduct, while
the Department's OPR investigated the allegations of attorney
misconduct. This bifurcation led to inconsistent
treatment. The OIG report on the actions of the FBI agents
was published on the OIG's website, but OPR did not
publish the report on the conduct of the DOJ attorneys who
were involved in the same case.
Transparency ensures greater accountability, and sends an
important deterrent message to other Department employees.
The credibility of the Department's disciplinary process is
inevitably reduced when the responsible component operates
under the direction of the Department's senior leadership and
is not subject to public scrutiny because of limited
transparency.
The OIG has demonstrated its excellence in reviewing
complex legal and factual issues, including employee ethics
and misconduct matters:
Over the past 30 years, the OIG has shown that it is
capable of fair and independent oversight of the DOJ. The
jurisdictional limitation of Section 8E(b)(3) is an
unnecessary historical vestige of the fact that OPR was in
existence prior to the statutory creation of the OIG in 1988.
Those who unsuccessfully tried in 2002 to forestall Congress
from providing the OIG with oversight of alleged misconduct
by FBI and DEA agents contended that those cases required
specialized expertise--just like the Department argues
currently that prosecutorial oversight requires specialized
expertise--and that argument was roundly rejected and has
proven to be entirely without merit. The decision by Congress
to extend OIG jurisdiction in 2002 to encompass misconduct by
FBI and DEA agents has allowed for significant and important
oversight of DOJ's law enforcement operations, and has had
significant positive impact on the integrity of those
agencies' operations.
The OIG has consistently demonstrated our ability to handle
complex legal and factual issues related to our misconduct
reviews, including those involving FBI and DEA agents as well
as, on occasion, ethics issues involving DOJ lawyers. In
addition to our recent investigation of the FBI's actions
prior to the 2016 presidential election, which involved
evaluating the professional conduct by FBI agents, FBI
lawyers, and FBI senior officials, we have investigated the
FBI's actions involving its former agent Robert Hanssen, the
FBI's activities related to James ``Whitey'' Bulger, the
DEA's oversight of its confidential informant program, the
DEA and other components' handling of sexual misconduct and
harassment cases, the operation of the FBI laboratory, ATF's
actions involving Operation Fast and Furious, and the FBI's
use of its national security authorities (National Security
Letters, Patriot Act Section 215, FISA Amendment Act Section
702).
Each of those and many other reviews resulted in
independent and transparent findings by the OIG, and resulted
in changes to Department operations that enhanced their
effectiveness and thereby increased the public's confidence
in those programs. Moreover, OIGs throughout the government,
including at the Department of Homeland Security and the
Securities and Exchange Commission, have authority to
investigate misconduct allegations made against attorneys at
those agencies and they have demonstrated that they are fully
capable of dealing with such matters covering a wide range of
complex legal issues. The DOJ OIG is the only OIG, to our
knowledge, that is barred by the IG Act from reviewing
misconduct by lawyers within the agency it oversees.
The Access Act would provide the OIG with oversight over
Department lawyers in a manner that is entirely consistent
with its oversight authority over Department non-attorneys:
The present oversight system that applies to allegations
made against any DOJ non-lawyer, as provided for in the IG
Act and Department regulations, is precisely the oversight
mechanism that the Access Act seeks to apply to Department
lawyers. Specifically, under the current system for DOJ non-
lawyers, all non-frivolous misconduct allegations must be
provided to the OIG for the OIG's review and determination as
to whether it is of the type and nature that warrants and
necessitates independent OIG investigation. Given the OIG's
limited resources, the OIG handles only those allegations
that warrant an independent OIG investigation, and therefore
the OIG returns routine and less serious misconduct
allegations to Department components, such as the FBI's
Inspections Division and the DEA's OPR, for their handling
and investigation. For those matters that the OIG retains,
when the OIG completes its investigation, it sends its report
to

[[Page H566]]

the component so that it can adjudicate the OIG's findings
and take disciplinary action, as appropriate. The Access Act
creates a similar practice, by maintaining the Department's
OPR to handle misconduct allegations that do not require
independent outside review as determined by the OIG, much as
the internal affairs offices at the FBI, DEA, ATF, and USMS
remain in place today.
We are unaware of any claims by Department leaders that
this approach has resulted in ``different investigative
standards,'' ``decrease[d] efficiency,'' or ``inconsistent
application'' of legal standards. There is no evidence that
it has impacted the components ``ability to successfully
defend any significant discipline decision before the Merit
Systems Protection Board.'' Yet this parade of horribles is
precisely what the OLA letter claims will occur if attorneys
are treated in the same manner as Special Agents and non-
attorneys at the Department, rather than continuing to
receive the special oversight treatment granted to them under
the current carve-out provision under the IG Act. This
argument is meritless. Indeed, the disciplinary processes at
the FBI and the DEA have substantially improved since the OIG
obtained statutory oversight authority over those components
in 2002, in significant part due to the greater transparency
and accountability that has resulted from the OIG's
oversight.
I very much appreciate your strong support for my Office
and for Inspectors General throughout the federal government.
If you have further questions, please feel free to contact
me.
Sincerely,
Michael E. Horowitz,
Inspector General.

Mr. CUMMINGS. On December 25, 2018, the New York Times editorial
board wrote: ``It makes sense to give Mr. Horowitz's office oversight
authority over the activities of Justice Department lawyers--as other
inspectors general have over lawyers in their departments. Doing so
would aid the cause of justice and strengthen the public's trust in an
institution charged with upholding it.''
On December 30, 2018, the Miami Herald also published an editorial in
support of the Inspector General Access Act. I hope the Senate will
follow the quick and bipartisan action this body will take today when
we pass this bill so that we can get it to the President's desk for his
signature as soon as possible.
With that, Madam Speaker, I urge all of our colleagues to vote in
favor of this very important legislation, and I yield back the balance
of my time.
Mr. RICHMOND. Madam Speaker, I want to thank Chairman Cummings for
bringing this important legislation to the Floor.
In 2005, shortly after Hurricane Katrina, a group of New Orleans
police officers opened fire on a handful of unarmed African American
civilians walking across Danziger Bridge, killing two and injuring
four.
This occurred during the heart of the Hurricane Katrina aftermath and
left deep scars on our community.
Years later five officers were convicted on a variety of charges for
these actions.
However, their convictions were vacated in 2013 due to misconduct by
Department of Justice prosecutors.
In my efforts to find out what happened and why, and to also get
transparency for my constituents, I received a DOJ report that was
heavily redacted and missing crucial facts.
I also learned that the DOJ Inspector General lacked the authority to
investigate those actions.
The DOJ was being left to investigate itself in situations like this
and the American people were being left without the full story.
That ultimately led to the victims and their families never receiving
the full measure of justice they were owed.
This bill grants the Office of the Inspector General for the
Department of Justice the authority to investigate alleged misconduct
committed by Department of Justice attorneys when they act in their
capacity as lawyers.
Currently, the OIG has jurisdiction to review alleged misconduct by
non-lawyers in the DOJ, but the DOJ's own Office of Professional
Responsibility exercises jurisdiction over alleged misconduct committed
by DOJ attorneys when they are litigating, investigating, or providing
legal advice.
From fiscal year 2002 through fiscal year 2013, Office of
Professional Responsibility documented more than 650 infractions,
including allegations that federal attorneys intentionally misled
courts and alleged abuses of the grand jury or indictment process.
In most of these matters--more than 400--OPR categorized the
violations at the more severe end of the scale: recklessness or
intentional misconduct as opposed to error or poor judgment.
However, the DOJ does not make public the names of attorneys who
acted improperly or the defendants whose cases were affected. As a
result, the DOJ, its lawyers, and the internal watchdog office itself
are protected from meaningful public scrutiny and accountability.
This simple change in jurisdiction will ensure that people facing
federal charges get a fair day in court and that the U.S. government is
properly represented in disputes with corporations where taxpayer
dollars are on the line.
We must ensure that innocent people are not wrongly convicted and
sent to prison, and that tainted cases do not cause convictions of
guilty parties to be thrown out.
With stakes as high as these, it is essential that DOJ attorneys be
held to highest possible standards of accountability.
While the Office of Professional Responsibility's investigations and
actions are notorious for their secrecy, the OIG's independence and
transparency will enhance the public's confidence in DOJ's operations.
For these reasons, and for the victims of the Danziger Bridge
shootings and their families, I encourage my colleagues to support this
commonsense legislation.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Maryland (Mr. Cummings) that the House suspend the rules
and pass the bill, H.R. 202.
The question was taken; and (two-thirds being in the affirmative) the
rules were suspended and the bill was passed.
A motion to reconsider was laid on the table.

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