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115th Congress    }                                   {         Report
                        HOUSE OF REPRESENTATIVES
 2d Session       }                                   {       115-1045

======================================================================



 
                  INSPECTOR GENERAL ACCESS ACT OF 2017

                                _______
                                

 November 27, 2018.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

   Mr. Gowdy, from the Committee on Oversight and Government Reform, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 3154]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Oversight and Government Reform, to whom 
was referred the bill (H.R. 3154) to amend the Inspector 
General Act of 1978 relative to the powers of the Department of 
Justice Inspector General, having considered the same, report 
favorably thereon without amendment and recommend that the bill 
do pass.

                                CONTENTS

                                                                   Page
 Summary and Purpose of Legislation..............................     2
 Background and Need for Legislation.............................     2
 Statement of Oversight Findings and Recommendations of the 
  Committee......................................................     3
 Statement of General Performance Goals and Objectives...........     3
 Legislative History.............................................     3
 Committee Consideration.........................................     3
 Roll Call Votes.................................................     3
 Explanation of Amendments.......................................     4
 Application of Law to the Legislative Branch....................     4
 Duplication of Federal Programs.................................     4
 Disclosure of Directed Rule Makings.............................     4
 Federal Advisory Committee Act..................................     4
 Unfunded Mandates Statement.....................................     4
 Earmark Identification..........................................     4
 Committee Estimate..............................................     4
 New Budget Authority and Congressional Budget Office Cost 
  Estimate.......................................................     5
 Section-by-Section Analysis.....................................     5
 Changes in Existing Law Made by the Bill, as Reported...........     6

                   Summary and Purpose of Legislation

    H.R. 3154, the Inspector General Access Act of 2017, 
harmonizes the Department of Justice (DOJ) Office of Inspector 
General's (OIG) authority to investigate all allegations of 
misconduct at the Department of Justice. The bill repeals a 
provision requiring the OIG to refer certain allegations of 
misconduct involving DOJ attorneys to the DOJ Office of 
Professional Responsibility (OPR).

                  Background and Need for Legislation

    H.R. 3154 addresses a statutory relic that prevents the DOJ 
OIG from investigating certain misconduct at DOJ. Currently, 
the DOJ OIG must refer allegations of misconduct by DOJ 
attorneys to the DOJ OPR, rather than initiate an investigation 
itself. The DOJ OPR was in existence prior to the statutory 
creation of the DOJ OIG in 1988, and DOJ OPR retained this 
specific authority when the DOJ OIG was created. The 
legislation addresses this issue by amending section 8E of the 
Inspector General Act of 1978 to repeal the provision requiring 
the DOJ OIG to refer allegations of misconduct.\1\
---------------------------------------------------------------------------
    \1\5 U.S.C. App.
---------------------------------------------------------------------------
    This bifurcation of investigative authority is unnecessary. 
The DOJ OIG is in some cases better positioned to conduct 
investigations of DOJ attorneys than OPR. For instance, the DOJ 
OIG--like all federal OIGs--maintains a level of independence 
from the management of the agency it oversees.\2\ This helps 
limit the potential for conflicts of interest that may cause a 
biased review. OPR does not have the same statutory requirement 
for independence. The Director of OPR is selected and appointed 
by the Attorney General, answers to the Attorney General, and 
can be removed or disciplined by the Attorney General. The DOJ 
Inspector General is appointed by the President, confirmed by 
the Senate, and can only be removed by the President after 
notification to Congress.\3\
---------------------------------------------------------------------------
    \2\Inspector General Act of 1978 Sec. 3(a); Pub. L. No. 95-452.
    \3\Council of the Inspectors Gen. on Integrity & Efficiency, the 
Inspectors General, (July 14, 2014), https://www.ignet.gov/sites/
default/files/files/IG_Authorities_Paper_-_Final_6-11-14.pdf.
---------------------------------------------------------------------------
    The DOJ OIG's independence is bolstered by the transparency 
of the work the office conducts. For instance, DOJ OIG audits 
and investigative reports are available on a publicly 
accessible website.\4\ The public website contains a full 
archive of DOJ OIG's completed reports and limits information 
only when necessary pursuant to statutory or other 
restrictions. The OIG recently began publishing summaries of 
investigations that resulted in findings of administrative 
misconduct, even when the subject is not prosecuted.\5\ This is 
in stark contrast to the content available on the DOJ OPR's 
website. The DOJ OPR only publishes summaries of a sample of 
cases investigated by the office and in a single, annual 
report.\6\ Thus, it is difficult to assess the office's 
findings and conclusions.
---------------------------------------------------------------------------
    \4\Dep't of Justice Office of the Inspector Gen., Reports, https://
oig.justice.gov/reports/ (last visited Oct. 16, 2018).
    \5\Dep't of Justice Office of the Inspector Gen., Investigative 
Findings in Cases Involving Administrative Misconduct, https://
oig.justice.gov/reports/inv-findings.htm (last visited Oct. 16, 2018).
    \6\Dep't of Justice Office of Professional Responsibility, 
Resources: OPR Annual Reports, https://www.justice.gov/opr/resources 
(last visited Oct. 16, 2018).
---------------------------------------------------------------------------
    The restrictions on the scope of DOJ OIG's investigative 
authority are unique. With few exceptions, other OIGs do not 
face similar limitations on their investigative authority. DOJ 
Inspector General Michael Horowitz testified before the 
Committee on November 15, 2017, on this very issue, explaining 
the need to repeal the provision.\7\ The Government 
Accountability Office offered a similar recommendation, 
advising Congress that ``transferring OPR's functions into 
[the] OIG would promote the basic principles underlying the 
Inspector General Act.''\8\
---------------------------------------------------------------------------
    \7\Recommendations and Reforms from the Inspectors General: Hearing 
Before the H. Comm. on Oversight & Gov't Reform, 115th Cong. (2017) 
(statement of Michael Horowitz, Inspector Gen., Dep't of Justice), 
https://oig.justice.gov/testimony/t170321.pdf.
    \8\Letter from Office of Gen. Counsel, General Accounting Office, 
to Jack Brooks, Chairman, H. Comm. on the Judiciary (GAO/OGC-94-24) 
(Apr. 15, 1994), http://www.gao.gov/assets/400/390452.pdf.
---------------------------------------------------------------------------

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
(2)(b)(1) of rule X of the Rules of the House of 
Representatives, the Committee's oversight findings and 
recommendations are reflected in the previous section.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goal or objective of this bill is to amend the Inspector 
General Act of 1978 relative to the powers of the Department of 
Justice Inspector General.

                          Legislative History

    On June 29, 2017, Representative Cedric Richmond (D-LA) 
introduced H.R. 3154, the Inspector General Access Act of 2017, 
with Representatives Jody Hice (R-GA) and John Conyers (D-MI). 
H.R. 3154 was referred to the Committee on Oversight and 
Government Reform. The Committee considered H.R. 3154 at a 
business meeting on September 27, 2018 and ordered the bill 
favorably reported by unanimous consent.
    Senator Mike Lee (R-UT), Senator Chuck Grassley (R-IA), and 
Senator Lisa Murkowski (R-AK) introduced S. 3003, the Senate 
companion to H.R. 3154, on June 6, 2018. S. 3003 was referred 
to the Senate Committee on the Judiciary.
    In the 114th Congress, Representative Richmond introduced 
H.R. 2240, the Inspector General Access Act of 2015, an 
identical bill to H.R. 3154. H.R. 2240 was referred to the 
Committee on Oversight and Government Reform. Also in the 114th 
Congress, Senator Lee introduced S. 618 as a companion to H.R. 
2240.

                        Committee Consideration

    On September 27, 2018, the Committee met in open session 
and, with a quorum being present, ordered the bill favorably 
reported by unanimous consent, without amendment.

                            Roll Call Votes

    There were no roll call votes requested or conducted during 
Committee consideration of H.R. 3154.

                       Explanation of Amendments

    There were no amendments to H.R. 3154 offered or adopted 
during Committee consideration of the bill.

              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch where the bill relates to the terms and conditions of 
employment or access to public services and accommodations. 
This bill amends the Inspector General Act of 1978 relative to 
the powers of the Department of Justice Inspector General. As 
such, this bill does not relate to employment or access to 
public services and accommodations.

                    Duplication of Federal Programs

    In accordance with clause 2(c)(5) of rule XIII no provision 
of this bill establishes or reauthorizes a program of the 
Federal Government known to be duplicative of another Federal 
program, a program that was included in any report from the 
Government Accountability Office to Congress pursuant to 
section 21 of Public Law 111-139, or a program related to a 
program identified in the most recent Catalog of Federal 
Domestic Assistance.

                  Disclosure of Directed Rule Makings

    This bill does not direct the completion of any specific 
rule makings within the meaning of section 551 of title 5, 
United States Code.

                     Federal Advisory Committee Act

    The Committee finds that the legislation does not establish 
or authorize the establishment of an advisory committee within 
the definition of Section 5(b) of the appendix to title 5, 
United States Code.

                      Unfunded Mandates Statement

    Pursuant to section 423 of the Congressional Budget Act of 
1974 the Committee has included a letter received from the 
Congressional Budget Office below.

                         Earmark Identification

    This bill does not include any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of rule XXI of the House of Representatives.

                           Committee Estimate

    Pursuant to clause 3(d)(2)(B) of rule XIII of the Rules of 
the House of Representatives, the Committee includes below a 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974.

   New Budget Authority and Congressional Budget Office Cost Estimate

    Pursuant to clause 3(c)(3) of rule XIII of the House of 
Representatives, the cost estimate prepared by the 
Congressional Budget Office and submitted pursuant to section 
402 of the Congressional Budget Act of 1974 is as follows:

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, October 11, 2018.
Hon. Trey Gowdy,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3154, the 
Inspector General Access Act of 2017.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                             Mark P. Hadley
                                        (For Keith Hall, Director).
    Enclosure.

H.R. 3154--Inspector General Access Act of 2017

    H.R. 3154 would shift authority within the Department of 
Justice to investigate certain cases of internal misconduct. 
Some cases that are now handled by the Office of Professional 
Responsibility would instead be handled by the Office of 
Inspector General. Using information from the department, CBO 
estimates that implementing H.R. 3154 would not significantly 
affect spending in any fiscal year because the department could 
implement the bill with existing personnel.
    Enacting the legislation would not affect direct spending 
or revenues; therefore, pay-as-you-go procedures do not apply.
    CBO estimates that enacting H.R. 3154 would not increase 
net direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2029.
    H.R. 3154 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    The CBO staff contact for this estimate is Mark Grabowicz. 
The estimate was reviewed by H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.

                      Section-by-Section Analysis


Section 1. Short title

    Section 1 establishes the short title of the bill.

Section 2. Investigations of Department of Justice personnel

    Section 2 amends section 8E of the Inspector General Act of 
1978 (Appendix to title 5, United States Code) to repeal a 
provision requiring the Department of Justice Inspector General 
to refer allegations of misconduct involving Department 
attorneys to the Office of Professional Responsibility if the 
allegations relate to the exercise of the authority of an 
attorney to investigate, litigate, or provide legal advice. 
Also, this section makes several technical changes to the 
surrounding paragraphs to reflect the repeal.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, and existing law in which no 
change is proposed is shown in roman):

                     INSPECTOR GENERAL ACT OF 1978




           *       *       *       *       *       *       *
        special provisions concerning the department of justice

  Sec. 8E. (a)(1) Notwithstanding the last two sentences of 
section 3(a), the Inspector General shall be under the 
authority, direction, and control of the Attorney General with 
respect to audits or investigations, or the issuance of 
subpoenas, which require access to sensitive information 
concerning--
          (A) ongoing civil or criminal investigations or 
        proceedings;
          (B) undercover operations;
          (C) the identity of confidential sources, including 
        protected witnesses;
          (D) intelligence or counterintelligence matters; or
          (E) other matters the disclosure of which would 
        constitute a serious threat to national security.
  (2) With respect to the information described under paragraph 
(1), the Attorney General may prohibit the Inspector General 
from carrying out or completing any audit or investigation, 
from accessing information described in paragraph (1), or from 
issuing any subpoena, after such Inspector General has decided 
to initiate, carry out, or complete such audit or 
investigation, access such information, or to issue such 
subpoena, if the Attorney General determines that such 
prohibition is necessary to prevent the disclosure of any 
information described under paragraph (1) or to prevent the 
significant impairment to the national interests of the United 
States.
  (3) If the Attorney General exercises any power under 
paragraph (1) or (2), the Attorney General shall notify the 
Inspector General in writing stating the reasons for such 
exercise. Within 30 days after receipt of any such notice, the 
Inspector General shall transmit a copy of such notice to the 
Committees on Governmental Affairs and Judiciary of the Senate 
and the Committees on Government Operations and Judiciary of 
the House of Representatives, and to other appropriate 
committees or subcommittees of the Congress.
  (b) In carrying out the duties and responsibilities specified 
in this Act, the Inspector General of the Department of 
Justice--
          (1) may initiate, conduct and supervise such audits 
        and investigations in the Department of Justice as the 
        Inspector General considers appropriate;
          (2) except as specified in subsection (a) [and 
        paragraph (3)], may investigate allegations of criminal 
        wrongdoing or administrative misconduct by an employee 
        of the Department of Justice, or may, in the discretion 
        of the Inspector General, refer such allegations to the 
        Office of Professional Responsibility or the internal 
        affairs office of the appropriate component of the 
        Department of Justice;
          [(3) shall refer to the Counsel, Office of 
        Professional Responsibility of the Department of 
        Justice, allegations of misconduct involving Department 
        attorneys, investigators, or law enforcement personnel, 
        where the allegations relate to the exercise of the 
        authority of an attorney to investigate, litigate, or 
        provide legal advice, except that no such referral 
        shall be made if the attorney is employed in the Office 
        of Professional Responsibility;]
          [(4)] (3) may investigate allegations of criminal 
        wrongdoing or administrative misconduct by a person who 
        is the head of any agency or component of the 
        Department of Justice; and
          [(5)] (4) shall forward the results of any 
        investigation conducted under [paragraph (4)] paragraph 
        (3), along with any appropriate recommendation for 
        disciplinary action, to the Attorney General.
  (c) Any report required to be transmitted by the Attorney 
General to the appropriate committees or subcommittees of the 
Congress under section 5(d) shall also be transmitted, within 
the seven-day period specified under such section, to the 
Committees on the Judiciary and Governmental Affairs of the 
Senate and the Committees on the Judiciary and Government 
Operations of the House of Representatives.
  (d) The Attorney General shall ensure by regulation that any 
component of the Department of Justice receiving a nonfrivolous 
allegation of criminal wrongdoing or administrative misconduct 
by an employee of the Department of Justice[, except with 
respect to allegations described in subsection (b)(3),] shall 
report that information to the Inspector General.

           *       *       *       *       *       *       *


                                  [all]