Office of Inspector General (“OIG”) personnel are charged with investigating various types of misconduct including criminal violations. The authority to investigate criminal misconduct is generally rooted in statute, and OIG components refer criminal prosecution to the United States Department of Justice (“DOJ”). However, these referrals may be dismissed by the DOJ for a variety of reasons, arguably limiting the effectiveness of government oversight. And these dismissals, while reported, often circumvent scrutiny. This article discusses the history of the current OIG law enforcement and referral framework, outlines questions challenging the effectiveness of the referral system, and proposes a legislative solution.
In the wake of public outcry following revelations of misconduct by government personnel, Congress passed the Inspector General Act of 1978 (“IG Act”) which established the Office of Inspectors General (“OIG”). The IG Act charged IGs “to be independent, nonpartisan officials who aim to prevent and detect waste, fraud, and abuse in the federal government.” This responsibility was divided between civil and criminal enforcement, and the IG Act granted statutory authority to conduct criminal investigations. However, the legislation ultimately left prosecution of criminal violations at DOJ’s discretion. For many years after the passage of the IG Act, OIG investigations into criminal conduct operated under a Memorandum of Understanding (“MOU”) with the DOJ granting certain OIG personnel law enforcement powers. Yet, DOJ required IG personnel to refer prosecutions to federal prosecutors who continued to retain immense discretion. In 2002, Congress passed the Homeland Security Act which, among other things, amended the IG Act to require the DOJ to issue guidelines for OIGs with statutory law enforcement authority. Again, these guidelines required OIGs to submit referrals to DOJ prosecutors. Since 2002, Congress has amended the IG Act numerous times; however, none of the changes made to the IG Act since its creation have vested OIG personnel unilateral prosecution authority.
However, while the DOJ does prosecute some OIG referrals, a deeper look raises serious questions on the efficacy of this system. For instance, in the wake of alleged wrongdoing by two Federal Bureau of Investigation (“FBI”) Agents during the investigation of former physician Larry Nassar, U.S. Senator Chuck Grassley, from his position as the Ranking Member of the Senate Committee on the Judiciary, issued a letter to Merrick Garland requesting information on the failure of the DOJ to prosecute IG-corroborated allegations of misconduct. The letter identified twelve known instances where various OIG investigators referred violations of 18 U.S.C. § 1001 by DOJ employees for prosecution, but the DOJ declined to prosecute.
The confidential nature of OIG investigations and numerous stakeholders make it difficult to conduct a critical review of the IG-DOJ referral system. Although OIG components are required to provide semi-annual reports to Congress, these reports can be onerous. For instance, a review of the DOJ OIG Semiannual Report to Congress for October 1, 2019 – March 31, 2020 shows that the office, which conducts investigations related to DOJ and its related entities, referred 137 cases for prosecution. However, the document does not show the final disposition of these referrals. Moreover, although the report provides examples of investigations where referrals were denied, these entries offer no insight as to what factors led to DOJ’s decision. DOJ has, and likely will continue to retain, the ultimate discretion to prosecute criminal cases, but these examples show the impetus behind the belief that some referral denials may be arbitrary. This confusion is compounded because OIGs and federal prosecutors have different reporting requirements and leadership.
Although investigations and prosecutions concerning government oversight are significantly different than civil rights litigation, perhaps some tenants of the civil rights model may be replicated. For instance, both types of litigation can be very complex and fact intensive. Civil rights cases cover violations such as federal voting or disabilities law. Additionally, the scope of the Civil Rights Division is vast, covering issues such as disability, employment, voting, and housing law. Similarly, OIG investigations may concern government contracts or commercial driver’s licenses. The scope of OIG responsibilities is also large, with over 70 different OIG offices conducting oversight in areas such as defense, procurement and acquisition, and social security. Because of these similarities, applying the civil rights model to the government oversight process may prove tenable.
- Establishing the Assistant Attorney General for Civil Rights
Following a push to combat the historic disenfranchisement of African American voters throughout the United States, President Dwight Eisenhower promised to bolster federal civil rights protections. In crafting what eventually became the Civil Rights act of 1957, DOJ played an important role, arguing for the establishment of a Civil Rights Division and an Assistant Attorney General (“AAG”) to oversee it. Importantly, during his testimony before the Senate Judiciary Committee’s Subcommittee on Constitutional Rights, then Attorney General William P. Rogers explained the need for the creation of a civil rights-dedicated division stating:
“Every day as I deal with these problems . . . I become more conscious of the need to have responsibility centered in a well qualified lawyer with the status of presidential appointee who will be able to devote his full time and attention to the legal aspects of civil rights problems with the area of Federal Jurisdiction.”
When Congress passed the Civil Rights Act of 1957, creating the position of AAG responsible for civil rights related litigation, it failed to create a separate division for such prosecution. Instead, Attorney General Rogers issued Order Number I55-57, establishing the Civil Rights Division and charged the newly created AAG with supervising the coordination and enforcement of criminal and civil cases arising out of civil rights violations. The creation of the AAG and establishment of the attendant Civil Rights Division undoubtedly changed the nature of civil rights litigation and continues to play a major role in the enforcement of civil rights law.
- Applying the Civil Rights Model to Government Oversight
Borrowing from the model used to bolster civil rights protections, establishing an AAG to oversee criminal prosecutions related to OIG investigations may be a viable option to ameliorate some transparency concerns in the current system. First, like the political and social environment of the 1970s, Congress has pushed for additional oversight reforms. Amending the IG Act to include a provision establishing an AAG for Government Oversight may be viewed as a vehicle for such reform because it would centralize the decision-making process on whether to prosecute an OIG referral in one entity. This centralization would likely encourage continuity of referral decisions and allow Congress to better hold DOJ accountable for these determinations. Second, the creation of an AAG may encourage the development of a Government Oversight Division within the DOJ. Establishing such a division could ensure that prosecutions are not directly limited by the constraints of United States Attorney’s Offices and allow DOJ attorneys to share institutional and legal knowledge in handling similarly complex cases. These benefits, while not as significant as those produced by the civil rights model, would likely positively enhance the prosecution referral process and add an additional layer of accountability.
- Challenges to the Establishment of an AAG for Government Oversight
Because legislation is often difficult to pass and any significant change to a complex system presents challenges, the establishment of an AAG for government oversight would likely cause some issues. First, while there is a political appetite for increased government accountability, establishing an AAG may be viewed only as a half-step in the right direction. If federal prosecutors continue to retain the ultimate authority to decide whether to prosecute, some may argue that an additional oversight mechanism would be minimally effective. Second, because OIGs have referred criminal investigations to federal prosecutors for nearly 40-years, some may argue that establishing an AAG is unneeded and only act to complicate the current system, causing a delay in the resolution of cases. Lastly, the costs associated with the creation of an AAG, and potentially a separate Government Oversight Division, may create pushback. If stakeholders do not see uprooting a 40-year-old system for limited change as cost-effective, Congress could look to other avenues of reform.
Holding government employees accountable for misconduct is vitally important. So much so that federal law has changed dramatically over 100-years to address emerging concerns of criminal and ethical violations. Because this process is continually refined, it is important to recognize areas for improvement and develop practical solutions. Accordingly, because the current system of IG referral calls into question decisions made by federal prosecutors to peruse or decline to pursue criminal charges in cases brought by OIG personnel, it seems a salient issue to review. Although it can often be difficult to decern the smoke from the fire, it is essential to promote transparency in the government oversight process. And borrowing effective methods from the past may offer equally effective solutions in the present.