WASHINGTON – Senators Chuck Grassley and Ron Johnson, and Congressmen Bob Goodlatte and John Conyers today expressed great concern with an opinion from the Office of Legal Counsel that allows the Justice Department to deny access to records sought by the Inspector General.

The Inspector General Act of 1978 authorizes the Inspector General to access “all records” in the Department’s possession.  However, today, the Office of Legal Counsel’s 58-page opinion argues that other provisions generally restricting the “disclosure” of certain kinds of information override the specific instruction that the Inspector General have access to all records of the Department.  The Office of Legal Counsel reaches this conclusion despite clear and recent legislation enacted in response to the controversy over these very access issues.  Following several instances of the Inspector General testifying to Congress about the Justice Department hindering his oversight by withholding records, Congress enacted, and the President signed, Section 218 of the Department of Justice’s fiscal 2015 Appropriations Act.  That provision prohibited the use of any funds to deny the Inspector General timely access to records.  The only exception was for any “express” limitation in the Inspector General Act.    

The Justice Department has denied or substantially delayed the Inspector General’s access to records in connection with a number of inquiries, including those related to: (1) whether the Department had violated the civil liberties and civil rights of individuals detained in national security investigations following September 11, (2) the review of Operation Fast and Furious, (3) the review of the FBI’s use of National Security and Exigent letters, (4) the Drug Enforcement Administration (DEA) sex parties scandal, (5) the DEA’s use of confidential sources, and (6) the DEA’s use of administrative subpoenas to obtain bulk data collections.

The Department’s refusal to provide records on a timely basis as required by law wastes months in bureaucratic roadblocks and frustrates the independent oversight Congress created Inspectors General to provide. Prior to 2010, the FBI and other agencies in the Justice Department routinely provided similar information to the Inspector General’s office.

Here are comments from Grassley, Johnson, Goodlatte and Conyers.

Senator Chuck Grassley, Chairman, Senate Judiciary Committee:
“The Inspector General Act of 1978 directs that Inspectors General have a right to access all records, documents and other materials.  If the Inspector General deems a document necessary to do his job, then the agency should turn it over immediately.  The clear command of that law is being ignored far too often by agencies across the executive branch.  By this opinion’s tortured logic, ‘all records’ does not mean ‘all records,’ and Congress’s recent attempt to underscore our original intent with an appropriations restriction is nothing but a nullity. The prospect of the Obama administration using this opinion to stonewall oversight, avoid accountability, and undermine the independence of inspectors general is alarming.” Grassley said.  

Senator Ron Johnson, Chairman, Senate Homeland Security and Government Affairs Committee:
“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.  The Homeland Security and Governmental Affairs Committee recently reported out S. 579, the Inspector General Empowerment Act of 2015, which makes clear Congress’s view that inspectors general must be given prompt, unfettered access to agency documents for purposes of carrying out their responsibilities under the act.  Unfortunately, the Department of Justice today has dug further into its position — against the clear will of Congress — that the agency is not always obligated to provide documents to its inspector general, and that the agency itself gets to choose when to grant permission to access certain documents. I am committed to working with my colleagues to ensure all inspectors general have the statutorily mandated independence from their agency that is so crucial to performing their responsibilities.”

Congressman Bob Goodlatte, Chairman, House Judiciary Committee:
“Today’s Office of Legal Counsel opinion contains the same kind of outcome-oriented lawyering that produced the Department of Justice’s infamous recess appointments memorandum, which was unanimously rejected by the Supreme Court in 2014. The law is clear that the Office of the Inspector General should have unfettered access to materials for its investigations, but political lawyers at the Department of Justice have engaged in legal gymnastics to shield key information from government watchdogs.

“The Office of Legal Counsel’s efforts to reduce transparency will leave the Department of Justice vulnerable to mismanagement and misconduct. This is not the type of government the American people deserve. The House Judiciary Committee will work with other committees of jurisdiction to explore a legislative fix to reiterate Congress’ intent that the Office of the Inspector General is entitled access to all documents and records within DOJ’s possession.”

Congressman John Conyers, Ranking Member, House Judiciary Committee:
“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.  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.  I suspect that we will work quickly, and likely with overwhelming and bipartisan majorities, to make certain that the Inspector General Act is explicit on this point.”

An Inspector General investigation can be prevented under the law in certain limited circumstances, but the Attorney General is required to explain in writing to both the Inspector General and Congress why the Inspector General’s work should be impeded despite the Inspector General Act’s guarantee of access to all agency records – something that the Attorney General has failed to do in each of the many instances records were withheld from the Inspector General since 2010.
The members said they would be working to determine a path forward to fix the issue that remains unresolved by the Office of Legal Counsel’s opinion.