OPR Report Kickstarts Push to Strengthen Inspector General
By Ryan J. Reilly | March 19, 2010 5:37 pm

New York Democratic Rep. Jerrold Nadler plans to renew a push for legislation that would change the way the Justice Department handles allegations of misconduct.

New York Rep. Jerrold Nadler (D) will advocate for changes to internal DOJ investigations (photo by Ryan J. Reilly).

The measure championed by Nadler would allow the Office of the Inspector General the right of first refusal to investigate misconduct claims. Under the current structure, the Justice Department’s internal review board, the Office of Professional Responsibility, investigates all attorney misconduct allegations.

Supporters of the change say the Inspector General has much more autonomy given his unlimited term, greater resources and the fact that he reports to both Congress and the Attorney General, whereas OPR is much more susceptible to interference from political leaders.

Defenders of OPR, including Attorney General Eric Holder, counter that the specialized office is necessary because it has developed an expertise in applying complicated ethical and legal standards to DOJ employees and that allegations of misconduct, many of which are frivolous, should be handled out of the public realm.

Some members of Congress have tried and failed to give more power to the Inspector General before. The renewed interest is the result of a recent OPR investigation into the Bush administration’s interrogation policies. In a long-awaited report, OPR found that Bush-era Office of Legal Counsel lawyers Jay Bybee and John Yoo committed professional misconduct by authoring memos that approved the use of enhanced interrogation techniques. But that finding was overruled by David Margolis, a career employee serving as Associate Deputy Attorney General, the highest ranking non-political position in the Justice Department. In a memo overturning the finding, Margolis said he agreed that the authors’ work was slipshod and that they demonstrated “poor judgment” but not misconduct.

Nadler said the recent OPR report highlighted the need for change because of how easily a report can be overruled by just one man.

“I met with my staff … and said why don’t we introduce that bill?” Nadler told Main Justice.

Such a bill, Nadler’s staff told him, was actually quietly introduced by House Judiciary Committee Chairman John Conyers (D-Mich.) in October. HR 3847 was referred to the House Committee on Oversight and Reform on Oct. 20, and has sat there since. Now Nadler plans to make a new push. Nadler does not serve on the Oversight panel.

“We’re going to pursue that,” said Nadler.

Long Running Disagreement

The tussle between OPR and the Inspector General is not new.

The Inspector General’s office is an independent entity within the department that publishes public audits and reports on DOJ programs. Congress and the executive branch have limited oversight over the DOJ’s Inspector General; the head of the office is selected by the president and confirmed by the Senate, and can be removed only by the president himself. The office has the authority to issue subpoenas to compel testimony or documents for investigations, but it is specifically prohibited from investigating the department’s lawyers for misconduct related to their official duties.

Only OPR — which answers to the Justice Department’s political leaders — can investigate Justice attorneys or other DOJ employees for misconduct. OPR does not have the ability to issue subpoenas and the results of investigations are not usually made public.

Much of the office’s workload remains a mystery.

While OPR is required by law to provide an annual report, the last one available is from fiscal 2007. The report is scrubbed of any identities.

In 2007, OPR received 906 complaints. The office determined that 207 of the matters, about 23 percent, warranted further review. OPR opened full investigations in 71 of those; the remaining 136, which are called “inquiries,” were resolved with no findings of professional misconduct.

Of the 75 investigations that were closed in fiscal 2007 — some of which took the investigators more than a year to finish — OPR found professional misconduct in only 23.

The report gives little to no detail on the subject of investigations.

“The matters opened as inquiries during fiscal year 2007 were remarkably diverse,” the report states. “Many of those matters did not involve a complaint against a department attorney. For example, some inquiries were based on allegations of whistleblower retaliation made by FBI employees. Others involved abuse of prosecutive or investigative authority by agents or unauthorized leaks to the media.”

OPR’s Toughest Critics

Some of OPR’s biggest detractors are federal judges.

Judge Mark L. Wolf, the chief judge of the District of Massachusetts, was forced to let two mob figures out of prison in 2003 after discovering that a federal prosecutor never told defense attorneys that the star witness in the murder trial had recanted his testimony.

An OPR investigation found the prosecutor’s conduct reckless but not intentional, and the attorney was privately reprimanded by the Massachusetts U.S. Attorney. But Wolf did not learn of the OPR finding until two years later and was highly displeased with the result.

Wolf wrote to the state bar disciplinary counsel and publicly released a letter to then-Attorney General Alberto Gonzales.

“In my view, a mere secret written reprimand by the United States attorney would not ordinarily be a sufficient sanction for the serious, repeated and consequential misconduct,” Wolf wrote in the 2007 letter.

Judge Emmet Sullivan pushed for reforms after prosecution errors in the Sen. Ted Stevens case. (Dominic Bracco II)

In a more recent case, U.S. District Judge Emmet G. Sullivan decided to open his own investigation into the botched prosecution of former Sen. Ted Stevens (R-Alaska) rather than rely on an OPR investigation.

Stevens was accused of failing to disclose gifts he received on his Senate Ethics form. He was convicted in October 2008, but after the trial a FBI whistleblower and many others accused the prosecution of mishandling evidence. Holder moved to dismiss the case, concluding that prosecutors improperly withheld evidence favorable to Stevens.

At an April 2009 hearing voiding Stevens’ conviction, Sullivan called the prosecution’s mistakes the worst mishandling and misconduct he had seen in his 25 years on the bench. Although the Justice Department had opened an internal OPR investigation, Sullivan said it was not enough. He appointed attorney Henry F. Shuelke III as an independent prosecutor to look into the matter.

“The court looks forward to receiving the results of the OPR investigation whenever that investigation concludes,” Sullivan said at the hearing. “But the events and allegations in this case are too serious and too numerous to be left to an internal investigation that has no outside accountability.”

Holder Opposed Similar Bill

Efforts by Nadler or other lawmakers to press for enactment of Conyers’ bill will undoubtedly face opposition from the leadership of the Justice Department. A department spokeswoman declined to comment for this story.

Conyers’ legislation is similar to a 2007 measure introduced in the wake of the U.S. Attorney firing scandal.

That legislation, which dealt with inspectors general at all federal agencies, would have given Justice Department’s inspector general the authority to conduct legal ethics reviews.

But the legislation changed during Senate floor consideration, when the provision related to OPR was removed by Sen. Jon Kyl (R-Ariz.).

“I find it dubious that an OPR lawyer would be in any position to assess whether an Office of Legal Counsel opinion is legally correct or not,” said Kyl at the time. “I fear that OPR’s actions are influenced more by the toxic style of opposition attacks on the Justice Department in recent years, in which legitimate policy and legal disputes are recast as ethical lapses, rather than by a sound concern for the integrity of the Department.”

Kyl’s intervention came after the Justice Department and supporters from previous administrations raised objections to a stronger role for the Inspector General.

During the debate in 2007 on the inspector general legislation, Attorney General Eric Holder, then in private practice at Covington & Burling, wrote Sen. Joe Lieberman, one of the bill’s co-sponsors, in support of OPR. (A copy of the letter is embedded below.)

Holder closeup

Attorney General Eric Holder (photo by Ryan J. Reilly).

“I believe strongly that, far from curing the problems now under investigation, authorizing an IG to investigate the sensitive issues historically investigated by OPR would create additional opportunities for improper political concerns to influence law enforcement decisions,” Holder wrote.

“OPR has been recognized consistently as a strong, independent entity within the Department since its creation in 1975,” he continued. “Over the years, Attorneys General of both parties have considered proposal that OPR’s jurisdiction be given to the OIG, and have concluded that allegations OPR investigates, such as exercise of prosecutive discretion and legal judgment, should remain the mission of a dedicated staff of specialists responsible directly to the Attorney General.”

Margolis, who has overseen OPR as part of his role in the Deputy Attorney General’s office, is one of OPR’s biggest supporters.

In 2000, he testified along with other department officials that a bill to change the way misconduct cases were handled would be “profoundly unwise” and potentially unconstitutional. In his testimony he noted that OPR was subject to the “general supervision” of the Attorney General, and noted that the Attorney General has the final say regarding the release of information about the results of investigations.

After years of promoting the independence of OPR attorneys, his memo on the Bybee-Yoo report highlights what critics say is its major flaw — that it takes just one person to overrule OPR’s findings.

Inspectors General Want Change

Glenn A. Fine

Justice Department Inspector General Glenn A. Fine (photo by Ryan J. Reilly).

There are several people within the DOJ who support a stronger role for the Office of the Inspector General, including the inspector general himself.

Inspector General Glenn Fine declined to comment directly on the recent OPR report, but said that his views about the need for an independent inspector general are very public.

“I think this should be a bipartisan issue, and it’s something we have talked about for awhile. My views on this are well known. We’ll see what happens,” Fine told Main Justice last month. “I expect that when I’m asked about this, I’ll continue to state my position on this.”

The previous Inspector General agrees.

“The existence of OPR gives the Attorney General more control over internal investigations because it reports solely to the AG; by contrast, the Inspector General reports jointly to both the Attorney General and to Congress. In theory and in fact, the AG controls the OIG far less than he controls OPR,” said Michael Bromwich, who served as Inspector General during most of the Clinton administration and is now a partner at Fried Frank.

When he took on the role, Bromwich was promised that the Office of the Inspector General would absorb the Office of Professional Responsibility. That transition never happened because of internal opposition.

For 22 years Michael E. Shaheen served as chief counsel in the Office of Professional Responsibility, investigating big cases across the department including cases that took on the FBI and even the attorney general.

Shaheen, wrote Jim McGee and Brian Duffy in their book “Main Justice,” gained the reputation of a dragon slayer, and kept his independence because of his allies on Capitol Hill, including now-Vice President Joe Biden during his stint as chairman of the Senate Judiciary Committee and his Republican successor, Orrin Hatch of Utah.

So it was surprising when in 2007 Shaheen called for his former office to be abolished, telling NPR its functions should be merged with the Office of the Inspector General.

It pained him to say so, he said, but the Office of Professional Responsibility has been “plagued by a history of delays and bureaucratic layers imposed on it,” he said.

Shaheen died that same year. But Bromwich said Shaheen’s comments on OPR after so many years leading the office “sent a pretty powerful statement” about the need for change.

Joe Palazzolo and Leah Nylen contributed to this story.

Holder Letter

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