Watchdogs: DOJ memo undermines agency probes

Watchdogs: DOJ memo undermines agency probes

Agency watchdogs are up in arms over a Justice Department memo questioning the legality of turning over documents they say are crucial to their investigations.

The new policy protecting certain portions of sensitive documents — announced last month by the DOJ’s Office of Legal Counsel — came under fresh fire from lawmakers during a Senate Judiciary Committee hearing Wednesday.

Lawmakers in both parties, including the top Republican and Democrat on the panel, disagree with the policy shift, saying it goes against the specific intent of the Inspector General Act of 1978. The law specifies that inspectors general have access to “all records” needed during an investigation.


“It’s difficult to figure out what problems the department was trying to solve,” Chairman Chuck GrassleyChuck GrassleyNumber of migrants detained at southern border reaches 15-year high: reports Grassley, Cornyn push for Senate border hearing The Hill's Morning Report - GOP pounces on Biden's infrastructure plan MORE (R-Iowa) said.

“In the last 26 years, the [DOJ’s inspector general] has had access to some of the most sensitive information available to the department,” he continued, adding that the there were no allegations that inspectors general had handled that information improperly.

Inside the hearing room, the audience was packed with workers from an array of agency inspectors general’s offices who had showed up in solidarity.

The first panel of witnesses consisted of the Justice Department’s inspector general, the FBI’s associate deputy director, the associate deputy attorney general and the Commerce Department’s acting inspector general.

DOJ Inspector General Michael Horowitz, a vocal critic of the policy, said that the implications of the new policy could reach further than the Justice Department lawyers intended.

The Office of Legal Counsel memo specifies that sensitive information falling under laws aimed at protecting consumer financial information, grand jury testimony, “intercepted communications” and wiretap data may be withheld from agency watchdogs.

But once some information becomes exempt from disclosure, and inspectors general are no longer entitled to “all” documents needed in an investigation, “Where does that stop?” Horowitz asked.

“The FBI has identified 10 other categories that they have concerns about,” he said.

“Just yesterday, I’m told, in our review of the FBI’s use of the bulk telephony statute ... we got records with redactions. Not for grand jury ... or credit information — but for other areas the FBI has identified legal concerns about,” he continued.

Both Kevin Perkins, the associate deputy director of the FBI, and Associate Deputy Attorney General Carlos Uriarte said they were having meetings with Horowitz’s office and may support a legislative fix to the memo.

“We are bound to follow the law and the opinion as its stated,” said Perkins said. “So, there are discussions ongoing with the OIG. … But nothing that is insurmountable and nothing we can’t overcome.”

Uriarte also said the Justice Department would work together with Congress to come up with a fix.

The Commerce Department’s acting inspector general, David Smith, also testified that the memo’s chilling effect has spread to an International Trade Administration investigation the office has been working on since the beginning of this year.

Specifically looking into whether the agency has been “conducting quality and timely trade remedy determinations,” it needed access to proprietary business information. Lawyers at the Commerce Department thought that handing over the documents could expose them to lawsuits — even if company names were redacted.

Following the release of the Justice Department’s policy memo two weeks ago, the office, still unable to obtain the information, had to terminate the investigation.

The policy shift has caused outrage throughout the inspector general community, in addition to outside government watchdogs.

The hearing’s second panel — which featured a former inspector general, a professor from New York University and a watchdog group — also urged Congress to move

The DOJ interpretation of the law essentially “hands control over to the subject of the investigation to decide whether or not they want to cooperate,” said Danielle Brian, the executive director of the Project on Government Oversight (POGO).

“Secret agency programs are particularly susceptible to waste, fraud, and abuse, but IG offices cannot uncover or correct these problems without access to agency records,” Brian said her Wednesday testimony. “Agency actions that deny access to those records violate our system of checks and balances.”

Paul Light, a professor within the Robert G. Wagner Graduate School of Public Service at NYU, said he thought the DOJ should just retract the memo, but “it [would] not help their reputation in future memoranda.”

“I am not a legal scholar, but I am a legislative historian,” he said. “I will cut to the chase: The [Office of Legal Counsel] opinion is wrong. Absolutely wrong.”

“I don’t understand why we have to pass a law to say, ‘We really meant it in 1978 when we said all. Now we really, really mean it,’ ” Sen. John CornynJohn CornynOVERNIGHT ENERGY: Dakota Access pipeline to remain in operation despite calls for shutdown | Biden hopes to boost climate spending by B | White House budget proposes .4B for environmental justice 2024 GOP White House hopefuls lead opposition to Biden Cabinet Number of migrants detained at southern border reaches 15-year high: reports MORE (R-Texas) said.

However, lawmakers appeared resolute by the end of the hearing to craft a legislative solution.

“We intend to fix this,” Grassley said. “We will get it fixed.”