February 18, 2011
During the French Revolution an official was said to have boasted, "Give me a line any one man has written and I will bring him to the scaffold!"
The overwhelming power of government to command its citizens to answer to it and the accompanying risk of abuse were well understood by our Founding Fathers. That is why they included in the Bill of Rights the Fifth Amendment guarantee against self-incrimination -- probably the best known set of phrases in our Constitution.
Today, however, some key members of Congress are quietly but actively considering a proposal to dramatically increase the police power of thousands of federal inspectors general, permitting these criminal law enforcement personnel to require testimony under oath, without any judicial or Justice Department involvement or oversight.
Surprisingly, it is Rep. Darrell Issa, R-Calif., the powerful chairman of the House Committee on Oversight and Government Reform, who appears to be the chief proponent of this proposal. Issa has publicly supported granting the IG offices in 66 federal agencies with the right to command citizens who come in contact with government to compel sworn testimony under oath unless they invoke their Fifth Amendment rights.
In July 2010, Issa and then-committee Chairman Edolphus Towns, D-N.Y., introduced the Inspector General Authority Improvement Act. It proposed giving inspector general offices the power to compel testimony without providing the deponent any opportunity to contest or delay the request, nor did the bill propose any substantial restrictions on the scope or number of depositions demanded. It did not pass.
But under its language, no one would supervise to prevent abuses in such depositions, as no court proceeding would be open and no judge appointed, except to enforce the subpoena. The length and number of such depositions would be unlimited. Anyone in the corporate world who has a federal government contract, who is regulated by a government agency, or who receives federal benefits would be subject to this new power.
I believe such a dramatic expansion is inconsistent with long-established law enforcement authority. It would also be unnecessary, unwise and unwarranted.
IGs' Existing Powers
IG offices are dedicated to ferreting out fraud, waste and abuse in federal agencies. The IG office at a large federal agency is led by an inspector general who is presidentially appointed and Senate confirmed. (In smaller agencies the head of the agency appoints the IG.) The power to fire an IG is limited, and requires presidential authority for those confirmed by the Senate and advance notice to Congress.
In each IG office, groups of criminal investigators and auditors perform valuable and important work to protect the taxpayers. The IG criminal investigators have the same authorities as their better known colleagues at the FBI (in the criminal law trade they are known as "1811s," after the federal position description for law enforcement agents entitled to law enforcement powers).
The IGs already have very broad law enforcement authority -- for example, without going to a federal judge or the Justice Department, an IG can:
And that's not the end of it. All government personnel must give interviews to IG agents when requested, or risk losing their job for refusing. (Private sector contractor personnel often give "voluntary" interviews.) And if anyone lies to an IG agent during such an interview, even with no court reporter or tape of the interview, then that person can be prosecuted and sent to prison for up to five years.
These powers have been enjoyed by IGs since passage of the 1978 Inspectors General Act, which was modernized in 2008.
The Justice Department's Key Role
To date, the powers and authority of the IGs and the Justice Department have dovetailed nicely. IG agents ultimately need Justice's help to charge someone with a criminal violation. Justice attorneys in criminal cases use voluntary interviews or the grand jury to obtain testimony of witnesses. Experienced federal prosecutors who spent three years in law school learning the law and how to conduct themselves while taking testimony under oath ultimately are going to be asked to accept or decline prosecution of the cases that IG agents have been working on using their own authority. Justice attorneys are better trained, more highly educated and have a greater perspective on what is a "good" case than do OIG agents, who are talented "gumshoes," but generally are not lawyers.
After working on a case for years, IG agents often lose perspective on the relative merit to the taxpayers of their work, and become improperly "vested" in prosecuting the cases they investigate. And after years working on a matter, they can be reluctant to admit they have been drilling a dry hole. For those who defend government employees or government contractors in such investigations, the Justice review is often the "adult supervision" needed to restrain an IG case that has run amuck.
The Justice Department, in sum, is a giant screening mechanism and restraint on IGs whose case efforts might have been spent where ultimately no crime was committed and no one should be charged.
If inspectors general are granted the power to take testimony in depositions it will, intentionally or not, break down the bond they currently have with the Justice Department -- the need for IGs to bring their case to the department earlier in the investigation might go largely removed, and IGs might be off taking literally dozens of depositions in a case with no supervision or restraint. IG cooperation with the department is key to good prosecutions and avoiding witch hunts: This proposal undermines it.
Perhaps the most fundamental and profound reason to fear giving IGs deposition power is that it invariably will lead IG agents to refocus their investigation from the alleged underlying substantive offense to the simpler and easier to prove claim that a witness "lied" during his or her deposition. It is one of the dirty little secrets of government prosecutors that a complex and difficult case can be made simpler by using the prosecutor's friend, the "false statement" charge, where all you have to prove is a statement was false and the witness knew it at the time, based on the facts and circumstances. It is a fact that IG training materials for their agents already suggest this is one way for IG agents to "make their case" and obtain a conviction.
Contractor employees have to understand that if inspectors general are given unrestricted powers to demand depositions, after two or three days of IG depositions (unless they have unusual strength of will), they inevitably will make a mistake and deny some fact that is true, and then they will really be in the soup, and get to ask the key question -- how do you look in an orange jumpsuit?
Stephen M. Ryan heads the Government Strategies Practice Group at McDermott Will & Emery LLP. A former assistant U.S. attorney in the District of Columbia, he was general counsel of the Senate Governmental Affairs Committee at the time the IG Act was revised in 1988.
February 18, 2011