Mar 08 2019
“The prosecutor,” Justice Robert Jackson once said, “has more control over life, liberty, and reputation than any other person in America.” That statement is just as true today as it was when Justice Jackson first uttered it in 1940, but federal prosecutors are actually some of the most unaccountable federal officials in the country today.
The problem traces to a loophole in the Inspector General Act of 1978 which refers all allegations of Department of Justice lawyer misconduct to the DOJ’s Office of Professional Responsibility (OPR) and the DOJ inspector general.
For virtually every other federal employee, allegations of official misconduct are reported to the respective inspector general of the federal agency. So if a Environmental Protection Agency official is accused of harassing a farmer, that allegation would go to the EPA inspector general. If a Labor Department official is accused of harassing a manufacturer, that allegation would go to the Labor Department inspector general. But if a federal prosecutor is accused of abusing his authority over a suspect, that allegation is sent to the DOJ’s OPR, not the DOJ inspector general.
This matters for two reasons. First of all, the OPR reports to the attorney general while the inspector general is independent of DOJ authority. This means that whatever allegations the attorney general doesn’t want to be investigated, won’t be investigated, or at least not investigated well. The entire point of passing the Inspector General Act was to create an independent watchdog to hold federal officials accountable free of pressure from executive branch political appointees.
The second reason not sending lawyer misconduct allegations to the inspector general matters is because the OPR is under no obligation to make its findings public. The DOJ inspector general is required by law to release a report on the allegations it receives including findings of fact, analysis, and conclusions. The OPR isn’t obligated to report anything. It is free to sweep any allegation under the rug as if it never happened.
This isn’t good enough. Federal prosecutors have far too much power in our system to be this unaccountable. They need to be properly policed by the DOJ inspector general.
That is why Sens. Chuck Grassley (R-IA), Lisa Murkowski (R-AK), Marsha Blackburn (R-TN), and Marco Rubio (R-FL) and I have introduced the Inspector General Access Act of 2019, a bill that eliminates the loophole giving the DOJ OPR exclusive jurisdiction over DOJ lawyer misconduct and fully empowers the DOJ inspector general to investigate all allegations of professional misconduct against department lawyers.
This legislation will not end prosecutorial misconduct by federal prosecutors, but it will greatly increase the chance that victims of prosecutorial abuse will get justice.