Michael Horowitz ’87 has been particularly busy lately. As inspector general of the U.S. Department of Justice, a position he has served in since 2012, he recently completed an investigation of the previous administration’s “Zero Tolerance Policy” for those illegally crossing the Southwest border and launched another inquiry “into whether any former or current DOJ official engaged in an improper attempt … to alter the outcome of the 2020 presidential election.” This is in addition to a new duty: briefing members of the incoming Biden administration. Horowitz, who participated in a webinar on presidential accountability reform with journalist and author Bob Woodward and moderated by Harvard Law Professor Jack Goldsmith, spoke via Zoom to Harvard Law Today about his work to ensure the integrity of the Justice Department and beyond.
Harvard Law Today: How does your role help facilitate presidential accountability?
Michael Horowitz: We don’t have direct oversight over events of the White House or personnel at the White House. But so much of what the Justice Department does tends to be at the center of such a tremendous interplay of events and issues that cut across the Justice Department’s interests as well as many executive branch entities. And as we’ve seen in the last several months and years, these issues often touch on the White House and activities of the department and allegations that department activities are inappropriately influenced by White House personnel. So, I don’t think you can entirely divorce what happens at the Justice Department from other parts of the executive branch, including interactions with the White House.
HLT: What presidential accountability reform would you like to see happen?
Horowitz: One of them, which I think is very important, is a reform and amendments to the Vacancies Act. We’ve been advocating for this for quite some time now, and it’s particularly apparent after the events of this past year why it needs to occur. After President Trump removed the inspector general at the State Department, he appointed as the acting inspector general a political appointee from the agency itself, which is permitted under the Vacancies Act, but is something that we believe very strongly is inconsistent with the Inspector General Act. The same thing occurred at the Transportation Department. As IGs, you are appointed precisely because of your qualifications and abilities in various professional areas, but the IG statute says specifically it can’t be because of your political views or political affiliations. So, we’re hoping Congress will amend the Vacancies Act so that the person being picked to come in is someone not only who has IG experience, but has a demonstrated track record of being non-political and non-partisan.
HLT: How do you conduct an investigation that involves people who are no longer at the Justice Department, as was the case with your investigation into the border enforcement policy that led to family separation?
Horowitz: Reviews that we undertake that touch on activities of people who are no longer at the department can present unique challenges, because as the Justice Department inspector general, I don’t have the ability to compel or subpoena the testimony of former employees of the department. It’s something we’re looking to obtain. As we discussed in the report on the department’s implementation of the Zero Tolerance Policy, former Attorney General Sessions refused our request for voluntary testimony. And so obviously that had an impact on our work. But it didn’t preclude us from making the findings that we made and undertaking a very consequential and in-depth review, because we do have access to all of the emails and other records of the Justice Department. And many people still talk to us. Those who are still at the department, as well as those who have left, often are willing to speak with us because they want to provide their perspective on what occurred and have an interest from their standpoint in doing so.
HLT: What do you hope to achieve when you issue a report?
Horowitz: One of the things we seek to do whenever we do a report as inspectors general is make recommendations on how to improve operations, because you not only want to bring forward transparency and shine the light on practices of the agency but importantly, if there are problems, make recommendations on how to fix them and mitigate the problems going forward. I can see how our prior reports, reports before I got here, continue to live on and how our findings are appreciated, followed as a general rule, and recommendations are implemented. And so they do have an impact. There’s accountability in the sense of public accountability and accountability through the recommendations that we make.
HLT: You issued a report on the FBI’s Crossfire Hurricane investigation of alleged ties between the Trump campaign and Russian officials. On such a politically sensitive issue, how can you produce an unbiased, factual investigation?
Horowitz: I’m very fortunate to have a tremendous staff, lawyers and agents who literally look through hundreds of thousands of records. There’s no substitute for actually putting your eyes on the records and thinking about the evidence. If you look at that report, the overwhelming majority of it is our factual recitation of what occurred in the various events. But we add our analysis of what occurred, and whether people acted consistent with or inconsistent with department rules, federal law, regulations. I get our teams together and we talk through all the issues. And I wouldn’t expect everybody to come in with one point of view on things. There are certain things, it’s pretty clear where the facts lead. But there are always going to be issues where people view it from different perspectives. That’s the nice thing about having a diverse workforce bringing diverse perspectives to the case when we talk it through, and we have great, robust, healthy discussions, and then we settle on the path forward.
HLT: Finally, what do you think are the qualities that make for a good inspector general?
Horowitz: You have to appreciate that you are in many respects in a quasi-judicial function or role. You’re trying to write reports that the public can accept as laying out a clear, independent, objective view of the facts, and not being an advocate but trying to judge the facts. We’re not just talking to our fellow professionals; we’re talking to the public at large. I think having tried cases and speaking to jurors has helped me as well, because you understand you’re not just arguing some fine legal point, but you’ve got to be in a position to be able to relay to the public all the facts, not just the ones I may think are important, but the ones the public thinks are important. And obviously, as administrations go from Democratic to Republican to Democratic to Republican, there will be differing views of policy. Our job is not to get in the middle of the policy debates. Our job is to bring accountability and oversight and transparency to government. And so I think a very important skill set for IGs is to understand what their lane is, what it isn’t, and then to stay in our lane.
This interview was condensed from a longer conversation.