Proposal to Expand DOJ Watchdog’s Powers to Probe Government Lawyers Hits Roadblocks

Sen. Dick Durbin (D-Ill.) speaks in Washington on Aug. 5, 2020. (Carolyn Kaster/Pool/Getty Images

Department of Justice (DOJ) Inspector General Michael Horowitz has been asking Congress for years to expand his authority to include investigating professional misconduct allegations against government lawyers, but his request is getting a cold reception in the Senate.

Horowitz’s most recent plea for the added authority—he’s the only one of the 72 statutory inspectors general (IGs) in the federal government who can’t investigate such allegations within his department—came during a March 23 House budget hearing.

“While the IG has jurisdiction to review alleged misconduct by non-lawyers in the department, it does not have jurisdiction over alleged misconduct committed by department attorneys, including federal prosecutors, when they act in their capacity as lawyers—namely, when they are litigating, investigating, or providing legal advice,” Horowitz told members of the House Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies.

Department of Justice Inspector General Michael Horowitz testifies in front of the Senate Judiciary Committee in Washington on Dec. 11, 2019. Charlotte Cuthbertson/The Epoch Times

“As a result, these types of misconduct allegations against department lawyers, including any that may be made against the most senior department lawyers (including those in departmental leadership positions), are handled differently than those made against agents or other department employees.”

The Office of Professional Responsibility (OPR), whose leader is appointed by the attorney general, handles misconduct allegations against DOJ lawyers.

“There is no principled reason to send those cases to an [OPR] that is overseen by the deputy attorney general and the attorney general, whose leader is appointed by them and can be removed by them,” Horowitz said. “I would venture to say that I doubt any member of Congress has ever been seen before you [the appointed head of OPR] to testify publicly.

“I think there is a lack of transparency, and I know from speaking with prosecutors across the country, defense lawyers across the country, and various nongovernmental organizations, that their confidence in that oversight ability has been challenged over the years.”

Giving Horowitz the new authority could put him at the center of an emerging controversy over the failure of the DOJ prosecutors to provide defendants charged with crimes in connection with the Jan. 6, 2021, breach of the U.S. Capitol with video footage that could potentially change their pleadings.

U.S. Attorney General Merrick Garland arrives for testimony before the Senate Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies in Washington on March 28, 2023. Win McNamee/Getty Images

In addition, multiple House committees are investigating actions by Attorney General Merrick Garland, including the DOJ and FBI’s potential role in targeting parents who protest over curriculum content at public school board meetings.

Also, Horowitz’s investigation of multiple cases of abuse by FBI officials of the court established by the Foreign Intelligence Surveillance Act could have exposed misconduct overlooked by the OPR. The abuse was in connection with allegations that employees among then-candidate Donald Trump’s 2016 campaign staff cooperated with members of Russian intelligence.

A spokesman for House Judiciary Chairman Jim Jordan told The Epoch Times that the Ohio Republican would support the request from Horowitz for expanded authority. A bill doing that was approved unanimously by the House of Representatives in 2019, but its main sponsor, Rep. Cedric Richmond (D-La.), resigned from Congress to join the Biden administration in 2021. Rep. Deborah Ross (D-N.C.) plans to introduce the proposal in the House this year, according to a spokesman.

Horowitz told the March 23 hearing that the Senate has been the main roadblock. The proposal was approved in 2020 by the judiciary panel on a 21–1 vote but was never brought up by Senate Majority Leader Chuck Schumer (D-N.Y.) for a vote by the full Senate.

A spokesman for Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) told The Epoch Times on March 27 that Durbin and Sen. Mike Lee (R-Utah) plan to reintroduce the proposal, which they co-sponsored in the 117th Congress, in the current legislature. The spokesman was unable to say when that would happen. Lee’s spokesman didn’t respond to a request by The Epoch Times for comment.

When they introduced the proposal in the previous Congress, Durbin and Lee said in a joint statement that their bill “solves the problems that have long prevented independent oversight of DOJ prosecutors by simply striking the jurisdictional carve out ... of the Inspector General Act.”

“As a result, DOJ’s Inspector General would be fully empowered to investigate allegations of professional misconduct against department lawyers,” they wrote.

“In addition to enhancing oversight and public accountability at DOJ, this simple, common-sense reform will bring DOJ in line with the practices in other federal agencies where allegations of attorney professional misconduct are already subject to investigation by Inspectors General.”

In addition to Durbin, eight members of the Senate judiciary panel co-sponsored the Inspector General Access Act in the 117th Congress, including Republicans Chuck Grassley of Iowa, Ted Cruz of Texas, and Marsha Blackburn of Tennessee. Democrats on the panel co-sponsoring the bill included Dianne Feinstein of California, Amy Klobuchar of Minnesota, Chris Coons of Delaware, Richard Blumenthal of Connecticut, and Mazie Hirono of Hawaii.

Sen. Tom Cotton (R-Ark.) leaves the Senate Chamber during a series of votes at the U.S. Capitol in Washington on Oct. 6, 2021. Anna Moneymaker/Getty Images

Leading the opposition in the Senate was Sen. Tom Cotton (R-Ark.), who acknowledged to colleagues during a Dec. 21, 2021, floor speech that the proposal had bipartisan support in Congress. The problem with the proposal, he said, is that “bipartisanship can cut both ways.”

Cotton noted that “every Attorney General, both Democrat and Republican, has opposed this bill since the very beginning of the Inspector General for the Department of Justice.” He further noted that Durbin and Lee incorrectly described the absence of authority to investigate lawyerly misconduct for the DOJ IG as a “loophole” that has existed since the IG system was created with the Inspectors General Act of 1978.

“When Congress created the Department of Justice IG in 1989, Congress had detailed discussions with [then-Attorney General Richard Thornburgh], and they reached a compromise to keep investigations of allegations of attorney professional misconduct within the [OPR],” Cotton said, quoting Attorney General Eric Holder as calling the proposal “deleterious and unnecessary” in 2007.

“In other words, Eric Holder thought it would compound the problems it purported to address.

“I want to note that the [OPR] has historically conducted its investigations with integrity and competence. ... That’s important because it is composed of both attorneys, former prosecutors, and former defense attorneys who have decades of experience and expertise in special ethics rules and the many complicated decisions any department attorney makes in the course of charging grand jury proceedings or jury trials.”