It is not clear whether those allegations are the sole impetus for inspector general’s investigation. Nevertheless, the announcement raises some interesting questions:
First, the IG’s office is bound by the terms of Section 8E of the Inspector General Act, which provides that the inspector general may “investigate allegations of criminal wrongdoing or administrative misconduct by an employee of the Department of Justice” but that it must refer to the Office of Professional Responsibility any “allegations of misconduct involving Department attorneys, investigators, or law enforcement personnel, where the allegations relate to the exercise of the authority of an attorney to investigate, litigate, or provide legal advice.” What that means is that the inspector general’s office cannot investigate, say, a Justice Department lawyer for lying to a grand jury, but it can investigate, for example, conduct relating to the election that violated department policy or violated federal laws. (Readers may recall that the inspector general investigated the department’s role in the Trump administration’s family separation policy.)
Second, the office can compel testimony from current Justice Department employees and use its administrative subpoena power to obtain documents. However, it lacks testimonial subpoena authority — that is, the ability to compel third parties to provide testimony. The current inspector general, Michael Horowitz, has sought such power precisely because a Justice Department attorney, for example, can resign and thereby avoid telling his investigators what he or she knows about serious or even criminal misconduct.
Third, the contours of attorney-client privilege are a subject of constant debate. Theoretically, the holder of the privilege (now the Biden administration) could waive that privilege, making it difficult for current Justice Department attorneys to dodge questions. (One can also argument that there is no privilege for one member of the executive branch from refusing to answer questions from another.)
Finally, if the IG’s office comes across evidence of criminality — say an attempt to extort the secretary of state of Georgia to fabricate election results — it will refer such findings to the attorney general or a U.S. attorney.
“An IG investigation into efforts by DOJ personnel to interfere in the election is a necessary and important step,” says Justin Florence, co-founder of the nonpartisan group Protect Democracy. “But it’s only a beginning. Other components of DOJ and Congress also have important roles to play here. We also need investigations into what role President Trump and others in the White House played, and accountability for any laws that were broken.” Florence adds that Congress also should enact new reforms to “prevent improper White House interference with DOJ and to insulate our elections from partisan manipulation.”
The announcement underscores the importance of an independent inspector general who can hold attorneys in the department accountable for their conduct. It has embarked on an investigation that potentially could uncover gross misconduct within the department. While the office lacks power to investigate other departments, it certainly may come across evidence of misconduct witnessed by the department’s attorneys.
This is certainly not the only means of holding the former administration accountable. Attorney Marc Elias, who combated the Trump campaign in more than 60 attempts to invalidate the election, says, “An inspector general investigation is a good start, but we need to ensure that those who sought to undermine our democracy are punished in every way possible, whether that is a criminal conviction, expulsion from Congress or disbarment.”
The inspector general’s investigation should remind Congress, state bar associations, state prosecutors and the incoming attorney general that we need to follow the facts and hold those who undermined our democracy responsible for their behavior.