The Obama Administration has been accused by public interest groups of being one of the most hostile administration toward whistleblowers since the Nixon Administration. Not only whistleblowers but reporters have been subject to abusive investigations and crackdowns under President Obama. Now, that record has taken an even more dangerous turn. The Justice Department is facing bipartisan criticism after it moved to restrict access of inspectors general to documents needed to ferret out corrupt and abusive practices. The Office of Legal Counsel (OLC) has issued a controversial 68-page memo that says that the department’s inspector general would be required to get permission from the agencies it is investigating to obtain wire taps, grand jury testimonies, and credit information.
For the record, I have been a long critic of the OLC due to what I have viewed as a significant decline in both the neutrality and quality of work in that office. The office has been wrong on a number of important constitutional questions, including the unconstitutional use of recess appointments by the President. In my view, these opinions were a departure from the tradition of the OLC in offering detached and apolitical analysis.
DOJ Inspector General Michael E. Horowitz has correctly noted that federal law gives his office independent authority and that having to coordinate documents requests from the very agency under investigation is counterintuitive: “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.”
He is joined in this view by key members of Congress from both parties, including Senators Chuck Grassley, R-Iowa, and Ron Johnson, R-Wis., as well as Reps. Bob Goodlatte, R-Va., and John Conyers, D-Mich. As Senator Grassley correctly noted “If the Inspector General deems a document necessary to do his job, then the agency should turn it over immediately.”
The requirement that IGs get permission and access from the subject agency is inimical to the very function of their office and the effectiveness of these offices. When combined with the controversial measures taken against whistleblowers by the Obama Administration, the new policy would allow an Administration far greater power in controlling investigations of its authority and would guarantee notice of potential controversies or scandals within its ranks.