Sunday, June 03, 2018

EXPECTATION-SETTING: Who is DOJ Inspector General Michael Horowitz?

By Jeff Carlson

500 employees. A $100 million budget. 1.2 million documents in the Inspector General’s possession. For delivery to the House Judiciary Committee by January 15, 2018.

I have been discussing the Inspector General’s Investigation for a bit now. See: here, here and here.

But exactly who is the Inspector General?

First off, there’s not just one Inspector General. There are 73 Inspector Generals – each related to a specific governmental agency.

The role of federal IGs is to prevent and detect waste, fraud, and abuse relating to their agency’s programs and operations.

Under the Inspector General Act of 1978 IGs are required to be selected based upon qualifications – not political affiliation. However, IGs appointed by the President (about half) are in reality political appointments.

Inspector Generals operate separately from one another but share information and coordinate through the Council of Inspectors General on Integrity and Efficiency (CIGIE).

CIGIE is an independent entity within the executive branch established to address integrity, economy, and effectiveness issues.

The Chairman of CIGIE is Michael Horowitz.

He’s also the Inspector General for the Justice Department (DOJ Bio).

And he’s responsible for conducting the Investigation into activities by the DOJ and FBI leading up the 2016 election.

He has kept details of his investigation surprisingly quiet, despite many information requests by Congress, as evidenced by a short letter which can be found here. To understand the full significance of that letter see, The Inspector General’s Implied Oversight.

The most common criticism of Horowitz is the obvious one: He’s an Obama Appointee.

But Horowitz was no friend to the Obama Administration.

From 1991 to 1999 he served as an Assistant U.S. Attorney for the Southern District of New York, where he was the Chief of the Public Corruption Unit and a Deputy Chief of the Criminal Division.

From 1991 to 1993, Horowitz actually worked under James Comey when Comey was a Deputy Chief of the Criminal Division.

In 2003, Horowitz was nominated by President Bush to serve as Commissioner on the U.S. Sentencing Rights.

In July 2011, Obama nominated Horowitz for Department of Justice Inspector General. Horowitz was sworn in on April 16, 2012.

Horowitz was brought in to replace the retiring Glenn Fine, a Clinton Appointee and ten-year veteran of the position. Fine had been a frequent critic of the FBI – and the Bush Administration. Interestingly, Fine has returned from the private sector and is currently the Inspector General for the Department of Defense.

From the start, IG Horowitz engaged in a long-running battle with Obama’s Administration – especially Attorney General Eric Holder and Holder’s replacement, AG Loretta Lynch.

Horowitz is most famous for his highly critical 514 page report on the “Fast and Furious” program run by the Bureau of Alcohol, Tobacco, Firearms and Explosives.

In that report, he recommended that the Justice Department review the actions of 14 officials and consider whether disciplinary action was warranted.

Among those singled out were former Acting Deputy Attorney General Gary Grindler, Assistant Attorney General Lanny Breuer, former Acting ATF Director Kenneth Melson, former ATF Special Agent in Charge William Newell and Deputy Assistant Attorney General Jason Weinstein.

Horowitz did not find AG Holder directly at fault:

We found no evidence that Department or ATF staff informed Holder about Operation Fast and Furious prior to 2011.

But Horowitz condemned a DOJ response on behalf of AG Holder. The DOJ response was prompted by a letter sent by Senator Grassley to AG Eric Holder.

From IG Horowitz (begins on page 466):

We believe that the Department should not have made this statement in its May 2 response to Sen. Grassley…Senior Department officials knew or should have knownThe May 2 letter was true only in the most literal senseWe believe the Department should not have resorted to a narrowly worded denial of such a serious allegation, particularly when officials in the Office of the Deputy Attorney General knew or should have known…We therefore question the significance or relevance of these ongoing assurances.

We believe that Weich’s testimony sent a confusing message to Congress and the public about whether the Department’s leadership was embracing in full the February 4 and May 2 responses as accurate.

We concluded that the Department officials who included this inaccurate information in the February 4 letter share responsibility with these component officials for issuing an inaccurate letter to Congress.

The report’s conclusions were harsher than expected. The Obama Administration was furious.

This was the most public disagreement between Horowitz and the Obama Administration.

Behind the scenes, a quieter battle had been raging.

Throughout Horowitz’s tenure he has continuously fought for Inspector Generals’ legal right to have unobstructed access to information.

This was something AG Holder had specifically limited – and the FBI had embraced. Holder used this tactic to delay the IG’s Fast and Furious Investigation.

You can hear IG Horowitz discuss these newly imposed limitations – that began in 2010 – during testimony before the Senate Committee on Homeland Security and Governmental Affairs on February 24, 2015.

The video is set to start at 6:34 to allow for Senator Johnson’s question. IG Horowitz begins to answer at 7:02.

From his comments:

We got access to information up to 2010 in all of these categories. No law changed in 2010. No policy changed…It was simply a decision by the General Counsel’s Office in 2010 that they viewed now the law differently. And as a result, they weren’t going to give us that information.

It’s frankly from my standpoint inexplicable. Other than a new lawyer making a new decision about a law that hadn’t changed. It shouldn’t be allowed to stand.

There’s nothing more I can do at this point – other than having testified seven times now and sending letters pursuant to the Appropriation Act to you and the other Committees that oversee us.

Horowitz testified on this matter repeatedly. And he continued to testify until he got the requested changes.

September 9, 2014,before the House Judiciary Committee:

Since 2010 and 2011, the FBI and some other Department components have not read Section 6(a) of the IG Act as giving my Office access to all records in their possession and therefore have refused our requests for various types of Department records. As a result, a number of our reviews have been significantly impeded.

We experienced similar objections from Department components that resulted in significant delays in gaining access to important information in other reviews as well, including during the review that culminated in our 2012 report on ATF’s Operation Fast and Furious.

Requiring the OIG to have to obtain the permission of Department leadership in order to review agency records compromises our independence . The IG Act expressly provides that an independent Inspector General should decide whether documents are relevant to an OIG’s work; however, the current process at the Department instead places that decision and authority in the leadership of the agency that is being subjected to our oversight.

September 10, 2014 before the House Oversight and Government Reform Committee:

Access issues need to be resolved promptly, hopefully through a legal opinion from OLC finding that Section 6(a) of the IG Act means what it says, namely that the OIG is entitled “to have access to all records . . . or other material available to the” Department, which must be construed as timely, complete, and independent access to information in the Department’s possession.

February 24, 2015, before the Senate Homeland Security Committee:

We continue to face challenges in getting timely access to information from Department components. In particular, the FBI continues to take the position it first raised in 2010 that Section 6(a) of the Inspector General Act does not entitle the DOJ OIG to all records in the FBI’s possession and therefore has refused DOJ OIG requests for various types of records.

August 5, 2105, before the Senate Judiciary Committee:

On July 20, the Office of Legal Counsel at the Department of Justice issued an opinion that restricts the DOJ Office of the Inspector General’s independent access to records in the Department’s possession that are necessary to carry out our oversight responsibilities. The legal underpinning of the OLC opinion, that the Inspector General Act does not give the DOJ-OIG independent access to all records in the DOJ’s possession despite the IG Act’s express authorization that an Inspector General have access to “all records” within its agency’s possession, represents a serious threat to the independence of not only the DOJ-OIG, but to all Inspectors General.

These are just some examples. Horowitz has testified numerous times on this matter.

On October 18, 2015, he wrote an op-ed for the Washington Post, asking that Inspector Generals be given greater access to all agency records:

For decades, there was no controversy over what the words “all records” meant. But that changed in 2010 when FBI attorneys suggested, soon after several critical reports by my office as inspector general at the Justice Department, that “all records” might not include some records the FBI was seeking to withhold. This was the first time anyone in the department had asserted that the broad powers of the IG Act did not apply fully to our oversight.

Horowitz’s Editorial is worth a read.

The Obama Administration fought against Horowitz’s efforts throughout the duration of its administration.

As a result of Horowitz’s efforts, legislation – known as the Inspectors General Empowerment Act – was introduced to affirm the independent authority of Inspector Generals. Several versions of the Inspectors General Empowerment Act were introduced – in 2014, 2015 and in 2016.

The Obama Administration fought these Acts tooth and nail – even going so far as to produce an internal legal opinion arguing against the Inspector General’s position.

In response, on August 3, 2015, IG Horowitz sent a blistering letter to Congress. The letter was signed not only by Horowitz, but by all other Acting Inspector Generals as well:

The OLC opinion’s restrictive reading of the IG Act represents a potentially serious challenge to the authority of every Inspector General and our collective ability to conduct our work thoroughly, independently, and in a timely manner. Our concern is that, as a result of the OLC opinion, agencies other than DOJ may likewise withhold crucial records from their Inspectors General, adversely impacting their work.

The only means to address this serious threat to Inspector General independence is for Congress to promptly pass legislation that affirms the independent authority of Inspectors General to access without delay all information and data in an agency’s possession that an Inspector General deems necessary to execute its oversight functions under the law.

It would take over a year, but the 2016 IG Empowerment Act proved the charm. With Republicans in control of Congress and the Obama Administration in its final days, the IG Empowerment Act passed the House and Senate.

Finally, on December 16, 2016, Obama signed the Inspectors General Empowerment Act into law.

Inspector General Michael Horowitz had won his long battle with the Obama Administration.

In an ironic twist, the signing of the Inspectors General Empowerment Act may have led to Horowitz opening his current investigation into the DOJ and FBI. It also gave Horowitz significantly enhanced latitude to pursue all information he deems necessary in his investigation.

This informative twitter thread by @DaveNYviii provides a timeline of Horowitz’s many battles – along with video testimony by IG Horowitz (double-click):

The Inspector General began his formal Investigation into activities by the DOJ and FBI on January 12, 2017.

On March 21, 2017, IG Horowitz testified again before the House Judiciary Committee.

In this testimony something off-topic came up – which he saved for the very end:

While we have jurisdiction to review alleged misconduct by Department law enforcement agents, we do not have the same jurisdiction over alleged misconduct committed by Department attorneys when they act in their capacity as lawyers.

These types of misconduct allegations against Department lawyers, including those that may be made against the most senior Department lawyers (including those in leadership positions) are handled differently than misconduct allegations made against law enforcement agents or other Department employees.

The OIG has long questioned this distinction between the treatment of misconduct by attorneys acting in their legal capacity and misconduct by other Department employees, and such a system cannot help but have a detrimental effect on the public’s confidence in the Department’s ability to review misconduct by its own attorneys.

Then, on July 26, 2017, IG Horowitz testified again before the Senate Judiciary Committee. This time on FARA – the Foreign Agents Registration Act:

Our audit identified concerns with the Department’s [DOJ] efforts to enforce FARA and the administration and monitoring of FARA registrations.

We found that there were different interpretations by NSD lawyers and FBI agents regarding the intent of FARA and what constitutes a “FARA case”, and that this was indicative of the lack of a comprehensive DOJ enforcement strategy on FARA.

FBI agents also expressed frustration about a perceived reluctance by NSD to approve FARA cases for prosecution, a criticism that NSD officials denied, although NSD simultaneously acknowledged the need to improve communication with investigators about the reasons for approval decisions.

We also identified that NSD needs to improve its controls and oversight of FARA registrations, particularly its efforts to ensure the timely submission of required documents and its inspections of registered foreign agents. We found that 62 percent of initial registrations were untimely.

Horowitz’s report was titled, Audit of the National Security Division’s Enforcement and Administration of the Foreign Agents Registration Act. It was published in September 2016.

The initial Mueller Indictments of Manafort and Gates centered around FARA violations…

Horowitz appears to be addressing structural issues he’s encountering in his underlying DOJ/FBI investigation with the Judiciary Committees of both the House and Senate.

Two months after his Senate Judiciary FARA testimony, IG Horowitz launched Oversight.gov on October 1, 2017. It represents an impressive effort to increase transparency – and direct public disclosure.

The new site brings together the work of all 73 federal IG Offices. There is also an associated twitter account @Oversight.gov.

Horowitz included all information from fiscal 2017 within the site. It’s updated on an ongoing basis.

Oversight.gov was created by the Council of the Inspectors General on Integrity and Efficiency (CIGIE) to consolidate in one place all public reports from Federal Inspectors General (IGs) in order to improve the public’s access to independent and authoritative information about the Federal Government.

The site includes a publicly accessible, text searchable repository of reports published by IGs.

There’s an entire section devoted exclusively to Inspector General Investigations. You can find out a bit more background on the site’s history here.

It should be a site worth watching.

Thus far, all I’ve discovered regarding IG Horowitz appears to indicate he’s a man of integrity, possessed with a useful and persistent determination.

Exactly the type of person one would want for an investigation of this magnitude.

I look forward to reading his coming report.


4 comments:

Bookdoc said...

I thank you for posting this. I was getting worried that he was just another comey, rosenputz, brennan, etc. It sounds like he may be the real deal. VERY much looking forward to his report now.

JayneI said...

Like Bookdoc, I also worried that there was no reason to believe that the IG, a Fed appointee like the DOJ officials, would have true objectivity. Or, if he were a man of integrity, that the Deep State would have 'something on him' to influence his investigation.

I do, however, have to worry that he and his office have become aware of the media build up and the concomitant expectations on his report. And just maybe he doesn't want to create an earthquake under the Deep State. Who knows?

Yup, still concerned that all will come to naught.

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