The Lack of Oversight in Trump’s Justice Department

This column contains corrections.

In the upcoming days, the U.S. Department of Justice’s (DOJ) Office of the Inspector General (OIG), led by Michael Horowitz, will be releasing a report related to President Donald Trump’s frequent claims that the FBI spied on his 2016 campaign. And while early reports indicate the investigation will refute claims that the FBI did so, the report’s focus reflects a troubling trend of the OIG prioritizing investigations into conservative conspiracy theories rather than responding to substantive allegations of serious misconduct in the DOJ. To ensure the integrity of the DOJ, it is essential that this pattern is put to an end through robust, comprehensive oversight efforts.

Investigations by the DOJ’s OIG under Trump

Each federal agency has an oversight division, led by an inspector general, that is charged with investigating possible corruption within its respective agencies. Horowitz, the DOJ’s current inspector general, was confirmed to his position by President Barack Obama in 2012. In addition to his current position with the DOJ, Horowitz has served as the chair of the Council of the Inspectors General on Integrity and Efficiency since 2015. Prior to the Trump administration, he enjoyed a strong, bipartisan reputation in Washington.

At least during the Obama administration, Horowitz did not shy away from investigating allegations of misconduct attracting major public attention. In fact, he issued two reports—the first in 2012 and a follow-up in 2016—on Operation Fast and Furious, overseen by the DOJ. This topic was the ongoing focus of House Republicans, who also launched an investigation into it, with at least one prominent member of Congress claiming the DOJ’s actions could be compared to Watergate.

During Horowitz’s tenure as inspector general under Donald Trump, however, there have been no completed investigations into possible corruption related to the Trump administration within the DOJ. While a few pending investigations have the potential to examine allegations related to high-level officials, after three years of almost unceasing scandals related to the department, a number of the major reports issued by Horowitz’s office since 2017 have instead focused on political conspiracy theories advanced by President Trump and his allies. In 2018, for example, the OIG issued a report examining whether political support for Hillary Clinton within the DOJ affected the DOJ’s investigation into her emails during the 2016 election. Trump often claims that this investigation was rigged to harm his election chances—a theory ultimately debunked by the OIG report itself. And in 2019, the office issued another report on former FBI Director James Comey’s handling of certain memos related to his conversations with President Trump. Trump cited these memos during his many attempts to disparage Comey’s role in the Mueller investigation. Altogether, according to the authors’ analysis, 47 percent of the volume of Horowitz’s publicly released reviews and investigations during the Trump administration in terms of pages is related to the FBI’s actions during the 2016 election, an issue the president has been fixated on since taking office.

Horowitz’s lack of action in this regard is a significant anomaly among his peers. Public records suggest that he and the inspector general for the Department of Transportation (DOT) are the only inspectors general at a major federal agency who have not completed an investigation or issued a finding regarding at least one potential instance of corruption or abuse of power by a Trump appointee. But even in the case of the DOT, the inspector general highlighted restoring “public confidence” in the department in light of the question raised in the fallout of the Boeing 737 Max crisis as a key management issue. And in fact, a nonexhaustive review of inspector general reports from a number of departments and the Environmental Protection Agency quickly demonstrates that the vast majority of major agencies have produced findings related to corruption or potential abuse of power by Trump officials. While some did not lead to findings of wrongdoing, others prompted the resignations of high-level Trump officials. (see text box)

The OIG’s jurisdiction and notable Trump scandals that have gone unaddressed

There have been a variety of concerning events involving the Trump administration and the DOJ that have attracted both public and congressional concern—but not the attention of the OIG. One reason the DOJ offered to explain the OIG’s record in regard to the Trump administration is that oversight into the “professional misconduct” of prosecutors—including the U.S. attorney general—is outside the jurisdiction of the OIG and instead resides within the purview of the DOJ’s Office of Professional Responsibility (OPR). The DOJ defines such misconduct as intentionally or recklessly violating a “clear and unambiguous legal obligation or professional standard.”

Horowitz himself has criticized this statutory limit—and addressing it may be worth considering—but it does not explain his office’s failure to investigate actions by the FBI or important process questions related to the DOJ generally. For example:

• Despite congressional and public outcry, the OIG has failed to investigate the FBI’s widely questioned process used to investigate credible complaints of sexual assault by now-Supreme Court Justice Brett Kavanaugh.
• The OIG failed to fully explain the process surrounding the release of former FBI agent Lisa Page’s personal text messages during a separate ongoing OIG investigation and shortly before a high-profile congressional hearing, including allegations that the messages were given to the press before lawmakers.
• The OIG was silent on the extremely unusual process to place Matthew Whitaker into the acting attorney general role without having been confirmed by the Senate to serve in any capacity at the DOJ.

Furthermore, the OPR’s somewhat narrow charge to investigate any professional misconduct by prosecutors, including the attorney general, has not kept Horowitz’s office from releasing general “policy reviews” that examine patterns of behavior by former DOJ attorneys.

Several more recent examples of what appears to be similar behavior that may also warrant investigation have yet to receive any attention from Horowitz’s OIG. These involve notable evidence suggesting that the political concerns of the White House have improperly influenced the handling of sensitive DOJ matters:

• The widely reported political pressure put on then-Attorney General Jeff Sessions not to recuse himself from the Mueller investigation
• Evidence of political interference into DOJ antitrust decisions, such as the president’s reported involvement in the proposed AT&T and Time Warner merger that appeared to be directed at CNN, a frequent target of the president’s attacks on the media
• Current Attorney General William Barr’s lack of transparency and delays related to the handling of the Mueller report release to Congress and the public
• The motivations and process in regard to Barr’s decision to order a new investigation into the 2016 probe into Russia’s possible interference in U.S. elections

Relatedly, Horowitz’s team has not looked into the pattern of recusal decisions made by Trump’s acting and appointed attorneys general. Such decisions raise concerns about the broader DOJ process for determining recusals for high-ranking political appointees, particularly in light of the president’s treatment of Sessions. Some examples of such decisions include:

• The possible ethics violations by then-acting Attorney General Whitaker in regard to his refusal to recuse himself from the Mueller investigation
• Similarly, possible ethics violations by Attorney General Barr in regard to his own refusal to recuse himself from the Mueller investigation, despite a 19-page memo he wrote before his confirmation as attorney general that deeply criticized that investigation
• Barr’s further refusal to recuse himself from the Ukrainian impeachment probe

Conclusion

Horowitz’s approach to the Trump administration is all the more troubling given the key role the DOJ plays in enforcing anti-corruption laws across the government. The DOJ’s independence from the White House, intended to keep the agency free from corruption, is vital to safeguarding the country’s democracy. Inspector General Horowitz has a critical role in ensuring that the DOJ continues to operate with integrity and that potential abuses of power are investigated. If such investigations do not occur, serious questions must be asked as to what is preventing the DOJ’s OIG from carrying out its duty.

Maggie Jo Buchanan is the director of Legal Progress at the Center for American Progress. Will Ragland is the managing director in the Center for American Progress Action Fund War Room.

*Correction, December 9, 2019: This column has been updated to note that its focus is on completed findings by inspectors general. The authors updated the piece’s overview of findings by other IG offices to include findings by the following federal agencies and departments: Housing and Urban Development, Energy, Education, Veteran’s Affairs, Homeland Security, and the Environmental Protection Agency. The authors also updated the sections on departments of State, Treasury, Defense, Justice, Interior, Agriculture, Commerce, Labor, and Health and Human Services to provide reference to only completed investigations and/or other public conclusions. Finally, the authors provided additional context in regard to the inspector general at the Department of Transportation and the page count related to the DOJ’s IG focus on the 2016 election.