The inspectors general of agencies across the federal government sent a scathing letter to the Justice Department this week accusing it of undermining the role of whistleblowers and the independence of the inspectors general who handle their complaint.
The letter was a response to an opinion issued by the DOJ’s Office of Legal Counsel that justified the Trump administration’s refusal to transmit the Ukraine whistleblower’s complaint to Congress, as generally required by law.
The OLC opinion does not create a legal precedent like a court opinion, but is internally binding across the federal government.
“[W]e believe that the OLC opinion creates uncertainty for federal employees and contractors across government about the scope of whistleblower protections, thereby chilling whistleblower disclosures,” the inspectors general said.
They are asking DOJ to withdraw or modify the opinion, arguing that it stands “to seriously impair whistleblowing.”
Acting Director of National Intelligence Joseph McGuire had asked for the DOJ’s advice on handling the whistleblower complaint after receiving it from the intelligence community inspector general, who had deemed it meeting the “urgent concern” legal threshold that mandates its transmission to Congress.
The Justice Department issued an OLC opinion that disagreed with that assessment and said that the DNI was not legally obligated to share it with Congress.
The complaint was eventually made public after the IC inspector general raised the alarm to the House Intelligence Committee that the administration was blocking the complaint from being shared.
In their letter Tuesday, the Council of the Inspectors General criticized the legal rationale put forward by the Office of Legal Counsel.
“We also share the ICIG’s concern that the OLC opinion could seriously impair whistleblowing and deter individuals in the intelligence community and throughout the government from reporting government waste, fraud, abuse, and misconduct,” the letter said.
The inspectors general argued to the DOJ that the relevant law “does not authorize the agency head, or any other party for that matter, to review or second-guess an IG’s good faith determination” about a complaint.
“In our view, the OLC’s opinion undermines the independence of the ICIG and wrongly interprets the respective roles and responsibilities of IGs and agency heads under the” relevant law, the letter said.
In inspectors general warned that that the OLC opinion “will have a chilling effect that extends to employees, contractors, and grantees in other parts of the government, who might not consider it worth the effort and potential impact on themselves to report suspected wrongdoing if they think that their efforts to disclose information will be for naught or, worse, that they risk adverse consequences for coming forward when they see something they think is wrong. ”
“That would be a grave loss for IG oversight and, as a result, for the American taxpayer” they said.
Read the letter below: