Justice Department lawyers investigating, litigating and providing legal advice are exempt from IG oversight, and have been since the Inspector General Act was passed in 1978. Glenn Fine, the department's IG, said the loophole prevents the Office of the Inspector General "from investigating an entire class of misconduct allegations."
At the time the Inspector General Act was passed, the Justice Department received permission not to establish an IG office, because its Office of Professional Responsibility already handled allegations of misconduct. The department also argued that "because of its law enforcement and litigation functions, the Justice Department was different from other agencies and did not need an inspector general," Fine said in his testimony.
In 1989, the Justice Department established an IG office but limited its jurisdiction. The office has expanded its oversight to include law enforcement officers, including FBI and Drug Enforcement Administration agents. But allegations of attorney misconduct -- even for high-ranking attorneys such as the attorney general and the deputy attorney general -- still go to the Office of Professional Responsibility.
Fine's suggestions come at a critical time for the Justice Department, as allegations of attorney general and deputy attorney general misconduct arose in relation to the 2006 firings of eight U.S. attorneys. Investigations into those firings were assigned to the Office of Professional Responsibility, but the IG office appealed the assignment and assumed joint responsibility for the ongoing investigation.
Fine said the divided jurisdiction hampers impartial treatment of misconduct claims. "It permits an attorney general to assign an investigation that raises questions about his conduct to an entity that reports to and is supervised by the attorney general and lacks the independence guaranteed by the IG Act," Fine said. He also raised concerns that the Office of Professional Responsibility does not operate transparently or publicly release any of its reports.
"I agree with you," said Sen. Joseph Lieberman, I-Conn., chairman of the committee.
The committee called the hearing to examine potential barriers to the independence of IGs across government.
Danielle Brian, executive director of the Project on Government Oversight, said some inspector general offices do not have independent general counsels to provide legal advice.
Brian cited the Defense Department, where the IG relies on legal advice provided by the Pentagon's general counsel lawyers. The arrangement undermines the independence of the Defense Department's IG, since the Pentagon "general counsel's role is to protect the agency, whereas an IG's role is to investigate it," she said.
A former IG for the Defense Department, Eleanor Hill, said that while she hadn't had any problems working with Pentagon lawyers during her tenure, her situation "was unique," and that "as a rule, IGs should have their own general counsel."
The hearing also covered aspects of legislation (S.1723) that has been proposed to enhance the efficiency and independence of all inspector general offices. If passed, the measure would set a fixed term for IGs, raise salaries and permit IGs to submit budget requests directly to Congress and the Office of Management and Budget.
The provision to raise IG salaries -- which witnesses said often lag behind those of other senior executives -- won the support of Sen. Susan Collins, R-Maine, ranking member of the committee, who introduced a bill (S. 680) in February that would provide the pay raise. The other measures met with mixed reactions from both senators and witnesses.