Editorial: Fix Justice Department oversight to protect democracy

In the post-Watergate era, Congress shored up the integrity and transparency of the executive branch by creating inspector general offices and charging them to ferret out misconduct and abuse and report it to the public. The offices were correctly deemed an essential supplement to the traditional checks and balances engrafted by the founders into American democracy, in that they could bring to light abuses that the president or his appointees might otherwise cover up.

The U.S. Department of Justice was arguably the agency most in need of independent scrutiny, but it took 10 years before the law was updated to include it. Even then, the department’s new inspector general’s purview did not extend to key agencies under the department’s umbrella, such as the Drug Enforcement Administration or the Federal Bureau of Investigation.

The Aldrich Ames spy scandal of the 1990s eventually motivated Congress to include the DEA and the FBI. But still, to this day, Inspector General Michael E. Horowitz lacks jurisdiction over Justice Department lawyers, which includes the 93 U.S. attorneys in the states and territories, the more than 300 lawyers who work under them, and all the other lawyers who work directly under the attorney general or the various other offices of his department.

That’s a huge loophole. It unwisely allows the attorney general to shield his legal staff — and himself — from independent investigations into their suspected misconduct. The result is a Justice Department, ostensibly independent, that is too subject to the political machinations of either the attorney general or the president who appoints him.

That potential for politicization, which can fuel a corrosive lack of public confidence in the department, exists in any administration, Republican or Democratic. Perhaps that’s why bills to close that gaping loophole have been embraced by most members of both parties during multiple administrations, including those of Presidents Obama, Trump and Biden.

But the legislation always seems to hit a roadblock — erected by the attorney general, again, regardless of party or administration. And besides, attorneys general (including current Atty. Gen. Merrick Garland) argue, we’re talking about lawyers, who because of complex rules of professional responsibility require special handling by an Office of Professional Responsibility that understands their particularly difficult jobs.

Nonsense. That’s like arguing that only politicians can investigate politicians, only police can investigate police or only spies can investigate spies. What the current and previous attorneys general really object to is outside scrutiny. And who wouldn’t do without someone looking over their shoulder if they could get away with it?

But accountability demands an independent investigator. The Office of Professional Responsibility is no such thing. It reports directly to the attorney general, who can direct an investigation or squelch it at will. Its conclusions are rarely made public. It is more akin to an advisor than a watchdog.

Inspectors general are appointed by the president and confirmed by the Senate, leaving them perhaps not wholly independent, but far more so than an office like OPR. Presidents are not often fond of inspectors general. President Reagan fired 16 upon entering office, but because of political pressure was forced to relent on some of them. President George H.W. Bush tried to fire his inspectors general, but he too backed off. Obama fired the AmeriCorps inspector general, and Trump fired five IGs. Still, it is a rare enough event that it makes headlines, giving inspectors general a layer of independence and administrations a degree of accountability.

Attorneys general dislike inspectors general even more — “like the Devil hates holy water,� U.S. Sen. Richard J. Durbin (D-Ill.) said last year at a hearing on the bill.

They hate them because they are effective and bring scrutiny and accountability. We need more of that in government, not less.

Earlier this year, Rep. Adam B. Schiff (D-Burbank) reintroduced a bill to correct some of the government structures that allowed Trump to abuse his power, and it includes a requirement for the attorney general to maintain a log of communications between the Justice Department and the White House and to produce information to independent oversight authorities. It’s important legislation, but it is polarizing because of abiding loyalty to Trump among many Republican members of Congress.

The Inspector General Access Act by contrast has bipartisan support, and has passed in the House and could clear the Senate — if only Garland lifts his ill-considered objections.

Two companion pieces of legislation are likewise worthy, and one is even less controversial. The Securing Inspector General Independence Act of 2021 would limit a president’s ability to replace inspectors general with temporary appointees not subject to Senate confirmation. The IG Testimonial Subpoena Authority Act would eliminate ex-employees’ exemptions from subpoena, so that they could not avoid testifying merely by quitting their jobs. All three bills deserve approval.