OLC Undermines DOJ Inspector General Independence

For over a year, DOJ’s Inspector General has been trying to ensure it got ready access to things like grand jury materials (this has been pertinent in the Fast and Furious investigation and how DEA and FBI use the latter’s dragnet, among other things). As part of this effort, the IG asked OLC to weigh in on whether it should be able to access this information, or whether it needed to ask nicely, as it has been forced to do.

Here’s the opinion. Here’s the key passage:

In particular, Title III permits Department officials to disclose to OIG the contents of intercepted communications when doing so could aid the disclosing official or OIG in the performance of their duties related to law enforcement, including duties related to Department leadership’s supervision of law enforcement activities on a programmatic or policy basis. Rule 6(e) permits disclosure of grand jury materials to OIG if a qualifying attorney determines that such disclosure could assist her in the performance of her criminal law enforcement duties, including any supervisory law enforcement duties she may have. And FCRA permits the FBI to disclose to OIG consumer information obtained pursuant to section 626 if such disclosure could assist in the approval or conduct of foreign counterintelligence investigations, including in the supervision of such investigations on a programmatic or policy basis. In our view, however, Title III and Rule 6(e) forbid disclosures that have either an attenuated or no connection with the conduct of the Department’s criminal law enforcement programs or operations, and section 626 of FCRA forbids disclosures that have either an attenuated or no connection with the approval or conduct of foreign counterintelligence investigations.

And here’s OIG’s response.

Today’s opinion by the OLC undermines the OIG’s independence, which is a hallmark of the Inspector General system and is essential to carrying out the OIG’s oversight responsibilities under the Inspector General Act. The OLC’s opinion restricts the OIG’s ability to independently access all records in the Justice Department’s possession that are necessary for our audits, reviews, and investigations, and is contrary to the principles and express language set forth in the Inspector General Act.

The opinion also finds that, in adopting Section 218 of the Department of Justice’s FY 2015 Appropriations Act, Congress’ intent was not sufficiently clear to support independent OIG access to all records in the Department’s possession. The OLC’s opinion reaches this conclusion even though Congress passed Section 218 “to improve OIG access to Department documents and information” following the Department’s failure to independently and timely provide all responsive records to the OIG, and Section 218 explicitly provides that the Department may not use appropriated funds to withhold records from the OIG for reasons other than as expressly provided in the Inspector General Act.

As a result of the OLC’s opinion, the OIG will now need to obtain Justice Department permission in order to get access to important information in the Department’s files – putting the agency over which the OIG conducts oversight in the position of deciding whether to give the OIG access to the information necessary to conduct that oversight. The conflict with the principles enshrined in the Inspector General Act could not be clearer and, as a result, the OIG’s work will be adversely impacted.

The OIG will immediately ask Congress to pass legislation ensuring that the OIG has independent access to the information it needs for its work. The Attorney General and the Deputy Attorney General have each expressed their commitment to join the OIG in this effort.

Inspector General Michael E. Horowitz stated:

“I strongly disagree with the OLC opinion. Congress meant what it said when it authorized Inspectors General to independently access ‘all’ documents necessary to conduct effective oversight. Without such access, our Office’s ability to conduct its work will be significantly impaired, and it will be more difficult for us to detect and deter waste, fraud, and abuse, and to protect taxpayer dollars. We look forward to working with the Congress and the Justice Department to promptly remedy this serious situation.”

[This post has been updated to add the opinion.]

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

9 replies
  1. TomVet says:

    There is a well known maxim among lawyers, both prosecuting and defense, that you never ask a question to which you don’t already know the answer. So it goes with the Executive. Whenever one of its agencies needs an opinion on some constitutionally or politically iffy matter, they ask their Harvard/Yale frat brother, politically connected, beltway insider lawyers for a foregone conclusion.

    Could we improve on the outcome by requiring that they instead solicit an opinion from a panel of randomly selected well known constitutional law and jurisprudence history scholars from an array of law schools across the entire nation?

    This would eliminate, or at least reduce, any apparent conflicts of interest in these matters. It would certainly remove the ability of the Executive to have its own select lawyers rule in its favor.

    • TomVet says:

      Okay, nobody has mentioned this in a while. So I will.
      .
      Please McCaffrey, can we get a preview and/or edit button?
      .
      I compose in my text editor and when I paste to the comment box it appears with all the appropriate paragraph spacing. When I post it all disappears in the published comment.
      .
      Why can this not be fixed??????

    • earlofhuntingdon says:

      Exactly. Which begs the question why OIG asked OLC, instead of acting as if it had the power it claims it has, and make the non-compliant executive defend its non-cooperation in court? Avoiding court decisions has been the executive’s defining characteristic since 9/11. Is OIG only interested in ineffectually throwing up its hands and saying, “Aw, shucks, where is Mr. Smith when you need him?”

  2. wallace says:

    Hahahahahahahaha! These DOJ schmucks never cease to fucking amaze me at their hubris. The Congress mandated the IG’s with the power to access ALL records, yet the DOJ uses their own lawyers to tell the IG’s to fuck off while raising their middle finger to Congress. Even when Congress slaps the AG with a Contempt of Congress charge..they still finger them. Look what happened over Fast and Furious. Nothing. Zilch. Zero. Meanwhile, Holder is laughing his ass off while going back to work at the sluttiest law firm on the planet. In reality, someone should carve a new name for Congress over the entrance…The Hall of Fools.

    • Rich says:

      Criminal or corrupt would be far more descriptive and accurate than sluttiest. And it avoids another instance of criminalizing normal consensual human behavior. Hell, it even avoids criminalizing normal economic behavior, that is the exchange of money for services agreed upon and rendered.
      O/w I’m in complete agreement.

  3. earlofhuntingdon says:

    OLC, sans Dawn Johnsen: OIG can have what I say it can have.
    OIG: What part of “effective oversight: do you not understand?

    No surprise here from the most transparently non-transparent administration evah (TM). There’s nothing here about the law; it is all politics, all the time.

  4. earlofhuntingdon says:

    One would think that if the DOJ does it, whether it pertains to the department’s civil or criminal jurisdiction, it should be subject to oversight by the department’s OIG. Will Congress step up here and do the right thing by clarifying the OIG’s authority? Has it ever?

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