Congress is close to enacting the most significant boost in three decades in the independence of the cadre of government watchdogs -- federal inspectors general -- but the lawmakers have retreated from a key change involving the U.S. Department of Justice.
The Senate on April 23 approved, by unanimous consent, S. 2324, the Inspector General Reform Act of 2008. But the bill passed only after the lawmakers agreed to an amendment by Senator Jon Kyl, R-Ariz., which, among other items, deleted a provision giving the Justice Department's Office of Inspector General (OIG) jurisdiction to investigate misconduct allegations against department attorneys, including its most senior officials.
Unlike all other OIGs who can investigate misconduct within their entire agency, Justice's OIG must refer allegations against department attorneys to the department's Office of Professional Responsibility (OPR). The latter office, unlike the OIG, is not statutorily independent and reports directly to the attorney general and the deputy attorney general.
The House last October passed a substantially similar bill -- H.R. 928 -- by a vote of 404-11. The House bill, sponsored by Representative James Cooper, D-Tenn., eliminates the requirement that Justice's OIG refer attorney misconduct allegations to OPR.
Both bills normally would be referred now to a joint House-Senate conference committee to resolve the differences. But congressional sources say there will be no formal conference. Given the political climate on Capitol Hill, they explain, the House is likely to vote on the Senate bill as the most politically expedient way to get the proposed reforms to the president's desk.
President Bush had threatened to veto the House bill for a variety of reasons. The Kyl amendment to the Senate bill was seen by many as a vehicle for the White House's objections.
"The Kyl amendment took out a lot of the substance of the bill, but it didn't kill the bill," said Cooper, a Harvard Law graduate who has pressed legislation for years to strengthen the independence and accountability of inspectors general.
"I think we should lock in these improvements and leave to a future Congress further improvements."
Danielle Brian, executive director of the Project on Government Oversight, a nonprofit, good-government group that has worked to improve the inspector general system, agreed with Cooper.
The DOJ issue, she said, is a "lingering problem that has got to be addressed." There is a "clear conflict, a real problem," with OPR investigating allegations against the very officials to whom it reports, she said.
That conflict emerged dramatically when former Attorney General Alberto Gonzales directed OPR to investigate the firings of certain U.S. attorneys -- a matter involving the conduct of the attorney general and the deputy attorney general. Inspector General Glenn Fine objected and eventually his office and OPR agreed to a joint investigation.
"The whole bill was held up because of this issue," said Brian. "We hope the Justice Department problem is not forgotten now that the legislation is passing."
The Inspector General Act of 1978 created independent offices headed by inspectors general to conduct audits and investigations into government fraud and abuse. There are two types of IGs: 30 IGs are appointed by the president with Senate confirmation, and 34 IGs serve at smaller agencies and are appointed by the head of the agency.
The House bill provides for fixed, renewable, seven-year terms for IGs, who are subject to removal for one of nine specific causes only. And the bill requires 30 days' advance notice to Congress of transfer or dismissal of an IG.
The Senate bill contains no fixed terms and no removal for cause, but requires the advance notice of transfer or dismissal.
Both bills try to decrease a large disparity in pay existing between IGs and other senior executive officials by raising the IG pay level, but they also prohibit cash awards or bonuses. Both also establish a statutory IG Council to coordinate IG activities and create professional standards and training. And they form a statutory integrity committee to review allegations against IGs and their staffs.
The bills also would make clear that IGs may subpoena any electronically stored information and may get legal advice from their own counsel or another IG's counsel.
During House and Senate hearings, there was remarkably little opposition to the various provisions by current and former IGs. That plus the strong bipartisan votes in Congress should make enactment and signature by the president "a slam dunk," said Cooper.
JUSTICE DEPARTMENT EXCEPTION
But the Justice Department provision will be left in the dust. Before the Senate vote, Kyl called the provision "strongly objectionable." IGs, he said, "are suited neither by temperament nor experience to second-guess whether a Justice Department lawyer should have investigated a matter, prosecuted a case, or offered a legal opinion."
Former Department of Justice IG Michael Bromwich, a partner in the Washington office of New York-based Fried Frank Harris Shriver & Jacobson, said opposition "either has to be based on a misunderstanding of what the IG is seeking or on an attempt by people in the department to keep certain kinds of investigations away from the IG for reasons they should articulate."
The department, he added, is an outlier among all other agencies. The current situation seems to give its lawyers a "privileged status" to be reviewed by OPR, which lacks the OIG's independence.
The Senate provision, he and Fine's office said, was designed not to have OIG take over all legal ethics investigations, but to have the right of first refusal over cases. Garden-variety ethics cases would still go to OPR. The OIG would take on "the more high-level, more serious, more systemic" allegations.
Brian of the Project on Government Oversight said her group has been talking with senior Justice Department officials about two possible changes that could be done administratively: giving OIG jurisdiction over allegations involving the attorney general and deputy attorney general, and requiring OPR to give notice to OIG when investigations are opened.
"We've been told this could be done with the stroke of a pen," she said, adding that it would be a "Band-Aid approach" until Congress acts.