Although polling shows that public trust in the federal government has increased modestly in the last year, strengthening public trust in the U.S. Department of Justice (the Department or DOJ) remains a significant challenge. While political polarization has contributed to allegations across Presidential administrations that Department officials take actions that are politically motivated, the Department can help ensure the public’s confidence that its actions are based on the facts and the law, not political considerations, by fortifying and adhering to Department policies and holding its personnel to the highest standards.
It is vital that the Department and its employees strictly adhere to policies and procedures designed to protect the Department from accusations of political influence or politically-motivated application of the law. The Office of the Inspector General (OIG) published a report regarding public statements by a U.S. Attorney about an ongoing criminal investigation into alleged ballot tampering during the 2020 Presidential election. The content of such public statements, which included investigative details contrary to Department policy and practice, gave rise to allegations that the announcements were motivated by political considerations. The OIG’s investigation found that the U.S. Attorney violated Department policies when he released a letter to county officials about the ongoing criminal investigation. As a result, the OIG identified several steps the Department should take to avoid such issues in the future.
The OIG recommended that the Department:
- strengthen its policy to further clarify that the information Department personnel can include in a public statement about an ongoing investigation is limited to only what is necessary to reassure the public that the appropriate law enforcement agency is investigating a matter or to protect public safety;
- clarify whether the Department’s policy regarding media statements about ongoing investigations applies to the Attorney General;
- determine which of two apparently conflicting Department policies on the Attorney General’s authorities on such media statements is in effect;
- require the Department to document when requests are made to the Attorney General or Deputy Attorney General, and approvals are issued, for the release of information about investigations that would otherwise be prohibited from disclosure; and
- consider revising its White House communications policy to clarify what information can be disclosed to the White House in situations where the policy permits communication about a contemplated or pending civil or criminal investigation.
Image of DOJ’s podium.
Source: DOJ
Although all five recommendations remain open, the Department is making progress in addressing the concerns highlighted in this report.
One recent OIG investigation illustrated how the unusual substantive involvement by senior Department political appointees in an ongoing prosecution’s sentencing proceeding—even when that involvement is permissible and not prohibited by any law or policy—can create the appearance that the Department may not be independent from political influence. The OIG investigated whether political interference caused the Department to file a revised sentencing memorandum and recommendation in the case of a former associate of then President Donald Trump. We did not find evidence that filing the revised sentencing memorandum was the result of improper political considerations. However, the OIG noted how the involvement of the then Attorney General and other high-level Department officials in the preparation and filing of a second sentencing memorandum in a case against the then President’s political ally affected the public’s perception of the Department’s integrity, independence, and objectivity, and that Department political appointees need to exercise discretion and judgment when considering whether to personally involve themselves in DOJ criminal prosecutions.
Similarly, the OIG’s Review of the Department of Justice’s Response to Protest Activity and Civil Unrest in Washington, D.C. in Late May and Early June 2020 in the aftermath of the killing of George Floyd similarly identified certain actions by Department officials that gave rise to a perception of political influence. For example, while we found that then Attorney General Barr did not order the clearing of Lafayette Park and H Street, and that he did not impact the timing of the clearing operation conducted by other agencies, his public appearance at the park and a statement provided to the media by a Department spokesperson about the Attorney General’s role contributed to confusion and inaccurate perceptions. In the same review, the OIG found that Department leadership deployed the Department’s law enforcement components without sufficient attention to whether those personnel were properly trained or equipped for their assignments. In doing so, Department leaders placed the safety of the Department’s personnel and members of the public at risk, thereby jeopardizing the public’s perception and confidence in the Department.
White House as seen from Lafayette Park, Washington.
Source: Lee/stock.adobe.com
Last year, an OIG report found that a then U.S. Attorney repeatedly failed to adhere to Department policies and ethics advice. The OIG concluded that the then U.S. Attorney engaged in misconduct when, among other things, she used her position as a U.S. Attorney to attempt to influence the outcome of a local partisan election and attended a partisan political fundraiser. These examples illustrate the importance of the Department ensuring that personnel at all levels, and particularly its senior leaders, abide by governing policies, rules, and regulations that are designed to safeguard against any actual or perceived political influence.
When DOJ employees fail to uphold their oaths of public service it erodes the public’s trust. Therefore, it is critically important that the Department ensure accountability when its employees engage in criminal or administrative misconduct. In its most recent Semiannual Report to Congress, the OIG reported that investigations in the first half of fiscal year (FY) 2024 resulted in 72 administrative actions, 35 convictions and pleas, 32 arrests, and 28 indictments of DOJ employees, contractors, and grant recipients. Pursuing prosecutions and appropriate sentences in these cases serves to demonstrate the Department’s commitment to the integrity of its workforce. Moreover, the Department’s components must be vigilant to ensure that employees do not entirely escape accountability by resigning or retiring from government service. In 2021, the OIG conducted a Review of the Federal Bureau of Investigation’s (FBI) Adjudication Process for Misconduct Investigations.
In that review, the OIG found that when an FBI employee under an internal administrative misconduct investigation separated, the FBI terminated its internal investigation without making findings, even when the investigation was concluded but the employee resigned or retired before discipline could be imposed. We recommended that the FBI ensure that every misconduct investigation is completed, regardless of whether the subject separates, and that it should maintain a written memorandum for each misconduct case documenting a substantiation decision and the supporting evidence when an employee separates from the Bureau while the investigation is ongoing. As of November 2024, these recommendations remain open.
Misconduct among employees of the Federal Bureau of Prisons (BOP) continues to be a significant challenge. In the first half of FY 2024, the OIG opened 85 investigations of BOP employees, and made 139 referrals of alleged BOP employee misconduct to the BOP’s Office of Internal Affairs. In last year’s, Top Management and Performance Challenges report, we highlighted our ongoing work at Federal Correctional Institution (FCI) Dublin and across the BOP to address sexual misconduct by employees. The Department has appropriately increased its focus on addressing sexual abuse of inmates, and the OIG’s Interdisciplinary Team has supported those efforts by providing information, data, and briefings to Department officials and assisting the Department with developing training for investigators and prosecutors.
As we describe in a May 2023 report, the BOP plans to hire additional staff to investigate employee misconduct, in an effort to remedy a backlog of investigations and adjudications. These efforts must continue to improve public confidence in the BOP.
Protecting whistleblowers from retaliation is critical to the OIG’s efforts to detect and prevent misconduct. Every effort must be made to prevent whistleblower reprisal so that DOJ employees are poised to illuminate wrongdoing within their agencies. In May 2024, Inspector General Michael Horowitz expressed concerns in a Management Advisory Memorandum that DOJ lacked conformity with applicable intelligence community policies for protecting whistleblowers who alleged their security clearance has been suspended as retaliation for their protected disclosures. The OIG made five recommendations to the Office of the Deputy Attorney General to address the OIG’s concerns. In July 2024, the Department issued a new policy in response to our recommendations that ensures the Department is compliant with whistleblower protections for employees with a national security clearance.
In conducting our oversight work, one common obstacle that the OIG faces are subjects and witnesses leaving the Department during the course of our work. The OIG can subpoena information from third parties and compel interviews of individuals who are currently employed by the Department. However, the OIG does not have the authority to compel interviews of former DOJ employees, DOJ grant recipients, or DOJ contractors, even when the testimony would solely pertain to their actions at DOJ.
As a result, the OIG at times has been unable to obtain valuable testimony from former employees, contractors, or grantees. The lack of testimonial subpoena power impacts our ability to conduct oversight of the Department, including investigations of serious misconduct by Department employees. For example, the OIG investigated whether a then senior official in the FBI retaliated or threatened to retaliate against FBI employees for their participation in an earlier OIG investigation in which the senior official was the subject. The OIG investigation found that the senior official engaged in retaliation, in violation of FBI policy, by making statements about suing employees who the senior official believed provided negative information about the senior official in the earlier OIG investigation. The official made other statements about getting back at one employee for their prior OIG testimony. The OIG investigation also found that the senior official engaged in unprofessional conduct, in violation of FBI policy, by making those statements, by discussing with FBI employees the fact that they were asked to provide testimony to the OIG in the earlier investigation, and by seeking information about that testimony. The senior official resigned from the FBI after providing an initial interview to the OIG at the beginning of the OIG’s investigation and later declined a request for a voluntary follow-up interview.
In addition, in our Review of DOJ’s Response to Protest Activity and Civil Unrest in Washington, D.C. in Late May and Early June 2020, several key leaders of the Department’s response, including the former Attorney General, declined our request for voluntary interviews. Their lack of cooperation led to “significant information gaps…that limit[ed] our ability to determine conclusively what happened [during the events in question].” We have identified the problems associated with this lack of testimonial subpoena power before, including in past Top Management and Performance Challenges and in Inspector General Michael Horowitz’s congressional testimony. Both the Department of Defense OIG and the Veteran’s Administration OIG have been granted testimonial subpoena authority. The Department’s support for the OIG obtaining testimonial subpoena authority would help demonstrate its commitment to hold accountable those who engage in misconduct while DOJ employees.
Another area where public trust in the Department can be strengthened is by giving the OIG authority to investigate allegations of professional misconduct by Department attorneys. This authority is currently vested in the DOJ’s Office of Professional Responsibility (OPR); however, unlike the OIG, OPR lacks statutory independence from Department leadership and its leadership is selected by, and can be removed by, the Attorney General and the Deputy Attorney General. The public’s trust in the oversight of Department prosecutors would be significantly enhanced by ensuring that this oversight is being conducted by investigators who are outside the supervisory chain of the Attorney General and Deputy Attorney General, and who are free of influence by them. That is among the reasons why Congress has made the OIG statutorily independent of the Department, so the public can trust that the OIG’s oversight is being conducted free of influence by Department officials. As Inspector General Michael Horowitz has explained in congressional testimony, there is no principled basis for authorizing OIG oversight of DOJ law enforcement personnel, including the FBI, while excluding DOJ lawyers from the same statutorily independent oversight. In an attempt to remedy this problem, the bipartisan “Inspector General Access Act,” which would confer this authority upon the OIG, has been introduced in every Congress since 2015. Department support for enactment of the current version of this Inspector General Access Act, S.3813-Inspector General Access Act of 2024, would enhance public confidence in the Department by treating DOJ attorney employees the same as all other DOJ employees, and the same as all attorneys employed at other federal agencies.
DOJ must balance its investigative authority and capacity with ensuring the protection of Americans’ civil liberties. The means by which investigations are conducted and illegal conduct is prosecuted must not infringe on an individual’s constitutional rights.
Adhering to and Applying Consistent Standards When Exercising Investigative Authorities
A free and open press is protected by the First Amendment and central to the functioning of our democracy. Similarly, as Congress is a separate branch of government, the Constitution’s Speech or Debate Clause was, according to the U.S. Supreme Court, “designed to assure a co-equal branch of the government-wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch. It thus protects members of Congress against prosecutions that directly impinge upon or threaten the legislative process.” The Department, on occasion, faces the challenge of conducting criminal investigations while protecting a free and independent press, as well as the activities of Congress. In 2021, Attorney General Merrick Garland issued a memorandum that prohibits DOJ attorneys from using “compulsory legal process for the purpose of obtaining information from, or records of, members of the news media acting within the scope of newsgathering activities,” with limited exceptions. Pursuant to this memorandum, the Department substantially revised its news media policy in federal regulations in 2022 and in the Justice Manual in 2024. To increase accountability and transparency, the OIG is conducting a review to address concerns about the circumstances in which these authorities were used before the Department’s new policy was in place. This review is examining DOJ’s use of subpoenas and other legal authorities to obtain communication records of the news media and members of Congress and affiliated persons in connection with investigations of alleged unauthorized disclosures of information to the news media, potentially by government officials.
Similarly, and as we discuss in more detail in connection with the National Security challenge, in April 2024 Congress enacted the Reforming Intelligence and Securing America Act, which renewed Section 702 of the Foreign Intelligence Surveillance Act. Following numerous violations reported to the Foreign Intelligence Surveillance Act Court, Congress added new restrictions on the ability of FBI personnel to query Section 702 databases for information associated with U.S. persons and required that the OIG complete a review on FBI querying practices within 545 days of the Reforming Intelligence and Securing America Act’s enactment. The OIG has begun its work to meet this 545-day reporting requirement.