August 12, 2008
Kathy’s US Politics Blog By Kathy Gill, About.com and other sources
Critics of the Attorney General’s decision not to prosecute or punish Justice Department officials for using politics to hire and deny promotions to Democrats, say that his policy sets precedent for Partisanship in DOJ appointments. The Civil Service Code was passed to outlaw the “spoils system” in the making of Federal appointments. Attorney General Michael Mukasey on Tuesday rejected prosecuting former Justice Department employees who improperly used political litmus tests in hiring decisions, saying he had already taken strong internal steps in response to a “painful” episode.
Two recent reports from the Justice Department inspector general and its ethics office found that about a half-dozen Justice officials — all but one now gone — systematically rejected candidates with liberal backgrounds for what were supposed to be nonpolitical jobs and sought out conservative Republicans.
Dismissals rejected
Attorney General Michael Mukasey has declined to prosecute Bush Administration appointees who used political party affiliation and public policy litmus tests when hiring civil servants. In an intriguing bit of Orwellian-speak, Mukasey told an American Bar Association audience that “not every wrong, or even every violation of the law, is a crime.” Funny, the Merriam-Webster dictionary contradicts the AG, stating that a crime is (emphasis added) “an act or the commission of an act that is forbidden or the omission of a duty that is commanded by a public law and that makes the offender liable to punishment by that law.”
And the hiring practices were a clear violation of the law, as the DOJ’s internal investigation reported last month.
Mukasey also suggested that failure to penalize the officials who broke the law is an illustration of the adage that “two wrongs do not make a right.”
While I think that Monica Goodling is the wrong lens through which to view this mess (as most media are doing), the law that was broken dates to the 1870s. A reminder, Mr. Attorney General: the law broken — what you described as “only violations of the civil service laws” — was designed specifically to keep the “spoils system” out of the day-to-day running of the government.
Breaking this law is not a trivial matter, like jay walking. Civil servants are supposed to be judged on merit, not politics. What of their derailed careers?
The NY Times reports that Beth Slavet, former chairman of the Merit Systems Protection Board, believes an independent review is called for. “Someone needs to clean up this mess that the Justice Department created, and I don’t think what Mukasey is doing goes far enough,” she said.
There has been an exodus of political appointees from the DOJ, not the least being former AG Gonzales, as the result of this, and other, DOJ atrocities under this Administration. When nominated as the new AG, Mukasey was hailed by many as someone who would return integrity to the nation’s top office of law enforcement. His announcement today suggests that faith was a case of misplaced hope.
In a speech Tuesday to the American Bar Association in New York, Mukasey acknowledged that some critics have called on the Justice Department to take what he called “more drastic steps” in dealing with the scandal, including prosecuting those at fault and firing those hired through flawed procedures.
“Where there is enough evidence to charge someone with a crime, we vigorously prosecute,” he said. “But not every wrong, or even every violation of the law, is a crime,” he said. As the inspector general’s report acknowledged, the hiring violations were such a case, because the wrongdoing violated civil service law, but not criminal law, he said.
Mukasey also said it would be unfair, and possibly illegal, for the department to go back and reassign or dismiss those lawyers and other employees who were hired in part because they were seen as trusted conservatives. “Two wrongs do not make a right,” he said.
Sen. Leahy not pleased
In response, Senate Judiciary Committee Chairman Patrick Leahy said that Mukasey “seems intent on insulating this administration from accountability.”
The Vermont Democrat said that Mukasey’s remarks Tuesday “appear premature based on the facts and evidence that congressional investigators and the inspector general have uncovered so far” in the hiring scandal. “We must continue to pursue the truth and facts, and hold any wrongdoers accountable,” Leahy said.
The inspector general is expected to issue at least two additional reports on the politicization of the Justice Department, including his findings on the firings of nine U.S. attorneys in late 2006 under then-Attorney General Alberto Gonzales. The controversies prompted Gonzales’ resignation last year.
The federal government makes a distinction between “career” and “political” appointees, and it’s a violation of civil service laws and Justice Department policy to hire career employees on the basis of political affiliation or allegiance.
Bar groups could act
Separately, an official in the Justice Department’s Office of Professional Responsibility said the unit has notified bar associations of its misconduct findings against five lawyers singled out in reports thus far. The bar groups could initiate their own disciplinary proceedings against the lawyers, who include former Justice Department White House liaison Monica Goodling, former attorney general chief of staff Kyle Sampson and former deputy attorney general chief of staff Michael Elston.
Meanwhile, a federal grand jury in Washington is examining whether former civil rights division chief Bradley Schlozman misled Congress last year in testimony about hiring and voter fraud issues. And internal watchdogs are probing whether former lawyers in the White House counsel’s office offered misleading accounts about the reasons for the dismissal of former Arkansas U.S. attorney Bud Cummins.
The inspector general is expected to issue at least two additional reports on the politicization of the Justice Department, including his findings on the firings of nine U.S. attorneys in late 2006 under then-Attorney General Alberto Gonzales. The controversies prompted Gonzales’ resignation last year.
The federal government makes a distinction between “career” and “political” appointees, and it’s a violation of civil service laws and Justice Department policy to hire career employees on the basis of political affiliation or allegiance.
Bar groups could act
Separately, an official in the Justice Department’s Office of Professional Responsibility said the unit has notified bar associations of its misconduct findings against five lawyers singled out in reports thus far. The bar groups could initiate their own disciplinary proceedings against the lawyers, who include former Justice Department White House liaison Monica Goodling, former attorney general chief of staff Kyle Sampson and former deputy attorney general chief of staff Michael Elston.
Meanwhile, a federal grand jury in Washington is examining whether former civil rights division chief Bradley Schlozman misled Congress last year in testimony about hiring and voter fraud issues. And internal watchdogs are probing whether former lawyers in the White House counsel’s office offered misleading accounts about the reasons for the dismissal of former Arkansas U.S. attorney Bud Cummins
Attorney Gate Update: Hiring Laws Were Broken, Far and Wide
Tuesday July 29, 2008
In late 2006, the Department of Justice fired eight US Attorneys, mid-term and without cause. A just-released internal DOJ report describes an agency that operated with widespread illegal hiring practices, not only in US Attorneys appointments but also with Immigration Judges. And a second report finds the same pattern of behavior in the Department’s Honors and Summer Intern programs.
The first report states: “Kyle Sampson, Jan Williams, and Monica Goodling each violated Department of Justice policy and federal law.” And although the report found that neither Executive Office for Immigration Review (EOIR) Director Rooney nor Deputy Director Ohlson violated federal law or department policy, “we believe that Rooney and Ohlson had sufficient evidence for them to have realized that political or ideological affiliations played a role in the selection process, and we believe that they should have brought this issue to the attention of senior leaders at the Department.”
In addition, investigators found that Executive Office for United States Attorneys (EOUSA) Deputy Director John Nowacki knew that Goodling improperly “[took] political considerations into account in detailee hiring” and then “concealed this knowledge” from other Department officials. Moreover, EOUSA Director Battle “should have raised concerns about Goodling’s actions” after learning that she took sexual orientation into account when denying an extension to an Assistant US Attorney.
However, Goodlng, who graduated from a small Christian college in 1995 and Pat Robertson’s Regent University School of Law in 1999, is being presented as the mastermind (scapegoat?) in press reports. For example, the Washington Post report describes her as “maneuvering around senior officials who outranked her, including the department’s second-in-command.” However, as the report made clear (above), she operated with the full knowledge of a superior.
Goodlng’s title: Counsel to the Attorney General and White House Liaison, Department of Justice. The second in command, Deputy Attorney General Paul McNulty, resigned in May 2007.
Sampson, chief of staff for Attorney General Alberto Gonzales, also “engaged in misconduct by systematically involving politics in the hiring of immigration judges.”
A year ago, the NYTimes called on Congress to impeach Gonzales due to the controversy over US Attorney firings. Gonzales subsequently resigned in August 2007.
Background
The Office of Professional Responsibility (OPR) and the Office of the Inspector General (OIG) began their joint investigation in March 2007.
The Office of the Attorney General is a relatively small one; the DOJ report states than in fiscal 2006 there were only 25 employees. Most of the attorneys working for DOJ do so in a non-political capacity (Schedule A positions). Schedule C appointments are “commonly referred to as political appointments.” The report clearly differentiates between the two:
It is not improper to consider political affiliations when hiring for political positions. However, both Department policy and federal law prohibit discrimination in hiring for Department career positions on the basis of political affiliations…The use of political affiliation as a criterion for considering applicants for career attorney appointments or details may violate several prohibited personnel practices…Our investigation demonstrated that Goodling sometimes used for career applicants the same political screening techniques she employed in considering applicants for political positions. In addition, she used for candidates who were interested in any position, whether career or political, the same political screening she used for applicants who applied solely for political positions, and some of these candidates were placed in career positions.
Report Summary: The Women
On May 23, 2007, Goodling testified before the U.S. House of Representatives Committee on the Judiciary under to a grant of immunity. She worked for the Republican National Committee (RNC) from 1999 to February 2002. From February 2002 to August 2004 she worked in the DOJ Office of Public Affairs as Senior Counsel, Deputy Director, and finally Principal Deputy Director. Six months as a Special Assistant United States Attorney followed, then nine months at the Equal Opportunity office. In October 2005, she moved to the Office of the Attorney General.
Susan Richmond, one of Goodling’s predecessors, “used political affiliations to make decisions on detailee candidates to the ODAG.” Moreover, Jan Williams, also a predecessor, “participated in those decisions when she worked in the White House Presidential Personnel Office.” From May 2003 to March 2005, Richmond was the Department’s White House Liaison. From November 2001 to March 2005, Williams was the Deputy Associate Director in the Presidential Personnel Office; her direct supervisor was Sampson.
Report Summary: The Men
The report found that EOUSA Deputy Director Nowacki improperly “used political or ideological affiliations when assessing waiver requests from interim U.S. Attorneys in at least three cases, which violated Department policy and federal law, and also constituted misconduct.”
Sampson graduated from Brigham Young University in 1993 and from the University of Chicago Law School in 1996. He practiced law for a short while before taking a position as counsel to the U.S. Senate Committee on the Judiciary. In 2001, he became the Special Assistant to the President and Associate Director for Presidential Personnel, focusing on DOJ. In August 2003, Sampson moved from the White House to the DOJ, serving as counsel to AG Ashcroft and then chief-of-staff to AG Gonzales.
In addition, Sampson implemented “significant changes” to the process of hiring Immigration Judges after he became Counselor to the AG in 2003; he “implemented a hiring process for IJs that treated the positions as political appointments.” In testimony before Congress and the investigators, Sampson insisted that he believed these appointments were “not subject to civil service laws.” He said he had received direction from the Office of Legal Counsel, but the investigators “did not find evidence to support Sampson’s claim that he received such advice from OLC.”
Sampson approved judges favored by Karl Rove and the White House, but the political nature of his selection process meant delays in filling vacancies, “which increased the burden on the immigration courts that were already experiencing an increased workload.”
Honors Program and Interns, Too
In a separate report released Friday, investigators note that “in 2006 the Screening Committee inappropriately used political and ideological considerations to deselect many [Honors Program and Summer Intern] candidates.” Specifically, “two members of the 2006 Screening Committee, Esther Slater McDonald and Michael Elston, took political or ideological affiliations into account in deselecting candidates in violation of Department policy and federal law.”
Both have resigned and are thus safe from any disciplinary action.
The moral of this story: Break federal hiring laws? Escape punishment, just quit.
What are “prohibited personnel practices?”
Twelve prohibited personnel practices, including reprisal for whistleblowing, are defined by law at § 2302(b) of title 5 of the United States Code (U.S.C.). A personnel action (such as an appointment, promotion, reassignment, or suspension) may need to be involved for a prohibited personnel practice to occur. Generally stated, § 2302(b) provides that a federal employee authorized to take, direct others to take, recommend or approve any personnel action may not:
(1) discriminate against an employee or applicant based on race, color, religion, sex, national origin, age, handicapping condition, marital status, or political affiliation;
(2) solicit or consider employment recommendations based on factors other than personal knowledge or records of job-related abilities or characteristics;
(3) coerce the political activity of any person;
(4) deceive or willfully obstruct anyone from competing for employment;
(5) influence anyone to withdraw from competition for any position so as to improve or injure the employment prospects of any other person;
(6) give an unauthorized preference or advantage to anyone so as to improve or injure the employment prospects of any particular employee or applicant;
(7) engage in nepotism (i.e., hire, promote, or advocate the hiring or promotion of relatives);
(8) engage in reprisal for whistleblowing – i.e., take, fail to take, or threaten to take or fail to take a personnel action with respect to any employee or applicant because of any disclosure of information by the employee or applicant that he or she reasonably believes evidences a violation of a law, rule or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety (if such disclosure is not barred by law and such information is not specifically required by Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs – if so restricted by law or Executive Order, the disclosure is only protected if made to the Special Counsel, the Inspector General, or comparable agency official);
(9) take, fail to take, or threaten to take or fail to take a personnel action against an employee or applicant for exercising an appeal, complaint, or grievance right; testifying for or assisting another in exercising such a right; cooperating with or disclosing information to the Special Counsel or to an Inspector General; or refusing to obey an order that would require the individual to violate a law;
(10) discriminate based on personal conduct which is not adverse to the on-the-job performance of an employee, applicant, or others; or
(11) take or fail to take, recommend, or approve a personnel action if taking or failing to take such an action would violate a veterans’ preference requirement; and
(12) take or fail to take a personnel action, if taking or failing to take action would violate any law, rule or regulation implementing or directly concerning merit system principles at 5 U.S.C. § 2301.
U.S. CODE:
5 USC Sec. 2301 01/03/2007
TITLE 5 – GOVERNMENT ORGANIZATION AND EMPLOYEES
PART III – EMPLOYEES
Subpart A – General Provisions
CHAPTER 23 – MERIT SYSTEM PRINCIPLES
Sec. 2301. Merit system principles
(2) All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights. Investigation and Prosecution Division (IPD). After a thorough initial examination, the CEU refers matters indicating a potentially valid claim (under the laws enforced by the OSC) to one of four field offices in the IPD. The field offices are located in Washington, D.C., Dallas, Texas, the San Francisco Bay Area, and Detroit, Michigan. The IPD then conducts investigations to review pertinent records, and to interview complainants and witnesses with knowledge of the matters alleged. Matters not resolved during the investigative phase will undergo legal review and analysis to determine whether the IPD inquiry has established a violation of law, rule or regulation, and whether the matter warrants corrective action, disciplinary action, or both. Complainants will continue to receive 60-day status notices while matters are pending in the IPDAdditional resources:
- Players In The US Attorneys Firing Controversy
- The Firing Of US Attorneys – Nefarious Or Business As Usual?
- AttorneyGate: Number 2 DOJ Official Resigns
- Reaction to “Inevitable” Resignation of Alberto Gonzales
- An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General (pdf, July 28, 2008)
- An Investigation of Allegations of Politicized Hiring in the Department of Justice Honors Program and Summer Law Intern Program (pdf, June 24, 2008)