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Two bills moving through Congress call for dramatic changes in the way the Justice Department handles misconduct allegations against its attorneys. The legislation, versions of which have already cleared the full House and the Senate Committee on Homeland Security and Governmental Affairs, would give the department’s inspector general expanded powers to investigate allegations of attorney wrongdoing. Right now, such investigations are handled by the department’s Office of Professional Responsibility. The key differences between the two offices: The inspector general answers to Congress as well as to the executive branch and has been prohibited by law from investigating the department’s lawyers. Only the OPR can investigate Justice attorneys. It answers to the attorney general, and the results of investigations are not made public, unlike the inspector general’s office. The DOJ’s handling of misconduct complaints has been under scrutiny as part of the scandal over U.S. attorneys and the politicization of the department. (The investigation of the role of former Attorney General Alberto Gonzales and his top aides is being conducted jointly by the OPR and the inspector general.) Some current and former Justice officials say a change in the way the DOJ handles investigations is long overdue. Others, including some Democrats, say the OPR has successfully operated independently for 32 years, and its staff — made up of career personnel — has withstood political pressure. POWER GRAB Under the legislation, Inspector General Glenn Fine would have the right to take on any misconduct allegation involving DOJ lawyers. Ethics and other complaints against DOJ attorneys would still be handled by the OPR. The bills would give no additional resources to the inspector general, and the OPR, though it would be far less powerful, would not be abolished. The language is part of wider legislation reforming the authority of inspectors general at all federal agencies. It was inserted into the House bill by Judiciary Chairman John Conyers Jr. (D-Mich.) a day before the Oct. 3 House vote. In remarks on the House floor in October, Conyers questioned the autonomy of the OPR, noting that it reports to the attorney general and that its investigations are confidential. The House passed the Improving Government Accountability Act by a 404-11 vote. The full Senate is expected to take up its version later this month. The Bush administration has threatened a veto of the legislation — though it’s unclear if the OPR issue is a sticking point. The White House has focused on provisions relating to dismissals of inspectors general, budgets, and the independence of IGs. Michael Bromwich, who served as DOJ inspector general from 1994 to 1999, says the bill would affect a major institutional change for Main Justice. “I think it’s significant,” says Bromwich, now a partner in Fried, Frank, Harris, Shriver & Jacobson. “It doesn’t make any sense to have lawyers in a privileged category where they are the only employees in the department that has its own internal affairs arm.” Bromwich also faults the OPR for taking too long with its investigations and concluding probes without visible results. That sentiment rankles the OPR’s supporters — and there are many. A Justice Department official who spoke on condition of anonymity says the OPR has a unique specialized “expertise” honed over decades. “There is no reason to change or put the OPR office anywhere other than where it is,” the official says. “It’s an independent, fair office … that conducts very thorough investigations.” Erik Ablin, a department spokesman and senior counsel, says the OPR has developed a “special proficiency” and “has demonstrated its independence for years.” Some OPR defenders have lobbied Congress to drop the provision. Eric Holder Jr., a former deputy attorney general under President Bill Clinton and a Covington & Burling partner, wrote Sen. Joe Lieberman (I-Conn.) — one of the bill’s co-sponsors — in October to defend the OPR and chastised lawmakers for considering the revision. “The current weakness of the Department of Justice and the seriousness of the allegations against its former leadership should not cause Congress to destroy a mechanism,” Holder wrote. A FINE PLAN Since it was created in 1975 in the wake of Watergate, the OPR — a group of 22 lawyers and nine other employees with a $5.5 million budget — has enjoyed sole jurisdiction over allegations involving the department’s lawyers. If the legislation passes, that duty would be shared with the much larger Office of the Inspector General, which typically investigates charges of waste, fraud, and abuse and has the authority to recommend criminal charges. Throughout its nearly 20-year history, the inspector general’s office — with more than 400 lawyers, investigators, and support staff and a $68 million budget — concentrates on audits and alleged violations of criminal laws and administrative procedures, and misconduct charges against nonlawyer employees. The bills repeal the section of the Inspector General Act of 1978 that mandates that the inspector general “shall refer” all attorney misconduct accusations to the OPR, which is currently run by longtime chief H. Marshall Jarrett. In the probe stemming from the U.S. attorney firings scandal, Justice officials say the OPR and the OIG are getting along. But historically, their relationship has been icy. In the past, the agencies have sometimes conducted parallel investigations, often duplicating efforts and issuing separate reports. Then-Attorney General Janet Reno once proposed merging the two offices, but she relented when the Republican-controlled Senate threatened to derail the nomination of Bromwich to become IG. When Fine found out earlier this year that Gonzales had tapped the OPR to look into the firings of nine U.S. attorneys, he told Congress that his staff noted a “conflict of interest” because the attorney general himself came under scrutiny. “We objected because we believed that the OIG was the appropriate entity to conduct the investigation,” Fine wrote in testimony to the Senate Committee on Homeland Security and Governmental Affairs in July. “Eventually, we agreed to conduct a joint investigation.” Fine told the committee that his office has the “means and expertise” to take on additional work. Earlier this year, Michael Shaheen Jr., who led the OPR since its inception in 1975 through 1997, called for the abolition of the office, saying its functions should be merged with the OIG’s. Shaheen, who died last week at his Virginia home, had opposed the creation of an inspector general’s office in the 1980s. But in a June interview with National Public Radio, he praised the OIG as “a quick and efficient office that’s empowered to investigate both administrative and criminal matters.”
Pedro Ruz Gutierrez can be contacted at [email protected].

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