Posted July 1, 2008 by J. Gerald Hebert The Ashcroft/Gonzales Legacy at Justice: What a MessCLC legal intern Lisa Miller of the University of Virginia Law School assisted in researching and drafting this commentary. The report issued last week by the Department of Justice’s Office of Inspector General and Office of Professional responsibility is quite an indictment of the Department of Justice under the Bush Administration. The Department’s spokespersons have been unusually silent about the report. Normally, they rush to the Department’s defense, and try to either attack the motives of the accuser or spin the story in way that makes the Department look better than it deserves to look. But this time, they couldn’t attack the messenger, because it was one of their own (and their own Inspector General at that). Sadly this is only the first of several promised reports from the Inspector General on the politicization of the Justice Department. Many more partisan abuses of the Department and its law enforcement powers are yet to emerge. The soon-to-be-released IG report on the Civil Rights Division will be of particular interest. For those of us who devoted a substantial part of our legal careers to the Department of Justice, the report is painful to read. Having spent over 20 years at the Department of Justice, and having been hired under the Attorney General’s Honors Program, I found the process used at DOJ during the tenure of John Ashcroft and Alberto Gonzales to hire new lawyers and summer law students disgraceful on several levels. It all began, according to the report, in 2002, when then Attorney General John Ashcroft changed the procedures for hiring new lawyers under the Honors Program. Prior to 2002, DOJ had deployed career attorneys across the country to conduct regional interviews of prospective candidates at law schools across the country. Starting in 2002, however, DOJ created a three-member Steering Committee, which reviewed candidates’ online applications, and then invited selected candidates to travel to DOJ headquarters in DC (at taxpayer expense) for an interview. The Screening Committee was composed of several members of Ashcroft’s Working Group – a group comprised almost exclusively of political appointees. This Steering Committee was a far more political body than the career attorneys who had been deployed to interview law students in the past. The decision to create the Steering Committee came from the Working Group (which Ashcroft headed), and given the fact that the Working Group was essentially political appointees, it is not shocking that the Steering Committee improperly let political considerations guide their decision-making. The three-person Steering Committee that screened applications in 2006 was comprised of Michael Elston, Esther McDonald, and Daniel Fridman. None of the members of the Steering Committee ever worked as an attorney in any of the litigating Divisions of the Justice Department. It seems rather obvious that none of them should have been placed on any committee that decided which lawyers should be hired for the Department’s litigating divisions (civil, criminal, antitrust, civil rights, tax, national security, and environmental and natural resources). They lacked experience and knowledge, and should have never been placed on the Steering Committee in the first instance. According to the report, Elston joined the Department in 1999 as a career Assistant United States Attorney (AUSA). In 2005, he became Chief of Staff and Counselor to Deputy Attorney General Paul McNulty and 6 months later converted from a career employee to a political appointment. Elston chaired the three-member Screening Committee. Esther Slater McDonald was, without a doubt, the most unqualified of the three. She graduated from law school in 2003 and joined DOJ in 2006. She received special treatment in her hiring at DOJ. A partner at the law firm where she was working (Jones Day) recommended her and she secured an interview within the week from Monica Goodling (who like McDonald, was not qualified for her job and appears to have violated federal law in her actions). McDonald was given the position “Counsel to the Associate Attorney General.” For an excellent summary of her background, see TPM’s “Who is Esther Slater McDonald?” The third member, Daniel Fridman, joined DOJ in December 2004 when he as an AUSA in Florida. In 2006, Fridman was detailed to the Deputy Attorney General’s office in Washington, D.C. He had no significant legal experience prior to being detailed and never worked in any of the litigating Divisions. He was the only one of the three Screening Committee members who was not cited for having violated federal law. Elston and McDonald apparently felt they were above the law. The report makes clear that “McDonald knew that using political and ideological affiliation was inappropriate, but did it anyway.” In an e-mail dated October 2006, McDonald acknowledged that “there are legal constraints on career hiring to ensure that it’s not political.” Unambiguously, the report concludes that “McDonald committed misconduct and violated Department policies and civil service law by considering political or ideological affiliations in assessing Honors Program and SLIP candidates.” The IG report also found that the “most significant misconduct…was committed by Elston.” Elston deselected some candidates and allowed the deselection of others based upon impermissible criterion.[1] Elston not only failed to provide adequate guidance to others and “failed to take appropriate action when he learned that McDonald was routinely deselecting candidates on the basis of what she perceived to be the candidates’ liberal affiliations,” but also personally deselected some candidates based upon their political affiliations. “[W]e concluded that Elston violated federal law and Department policy by deselecting candidates based on their liberal affiliations.” Other Department of Justice officials also failed to carry out the duties of their office in an effective and competent manner. In addition to McDonald and Elston, the report concludes that part of the reason this politicization problem continued unchecked was that other Justice Department officials failed in their oversight duties. For example, the report is critical of Louis DeFalaise, Director of the Office of Attorney Recruitment and Management (OARM), who “did not adequately or timely address the concerns that were brought to his attention concerning the Screening Committee’s deselections.” In his role as Director of OARM, DeFalaise failed to effectively conduct oversight given that he “had sufficient evidence to, at a minimum, raise concerns about the Screening Committee’s criteria or the deselection of particular candidates directly with Elston or discuss those concerns with other senior leaders at the Department.” The report also implicates Acting Associate Attorney General William Mercer, who “did not adequately address the concerns that were brought to his attention by several senior Department officials that the Screening Committee’s deselections appeared to have been politicized.” Like DeFalaise, as Associate Attorney General, Mercer had oversight powers over the Tax Division and Civil Division, as well as other components participating in the Honors Program and SLIP hiring process. McDonald was one of his own staff members. Mercer questioned McDonald about the standards the Screening Committee had applied, and “McDonald told him that the deselections were based on concerns about academic records, sloppiness of applications, and at times, ‘a concern that [the applicants] wouldn’t be able to follow DOJ policy based upon what they had written.’” Given the nature of the complaints against McDonald and Elston, the report concludes that Mercer “should have pursued the matter further with Elston,” and did not investigate the deselections adequately. Attorney General Mukasey issued a statement on the day the IG report was released saying that he would implement all the recommendations of the report. His statement was as follows: “I appreciate the hard work and collaboration of the Department's Office of Professional Responsibility and Office of Inspector General on this report. The Department overhauled its Honors Program and Summer Law Intern Program hiring processes last year, and I am pleased that the report remarked positively on these institutional changes. I have also made clear, and will continue to make clear, that the consideration of political affiliations in the hiring of career Department employees is impermissible and unacceptable. The joint report issued today contains additional recommendations aimed at ensuring that political and ideological affiliations are not inappropriately used to evaluate candidates for these programs; I accept, and have directed the implementation, of all of those recommendations.” If we take the Attorney General at his word, and “the consideration of political affiliations in the hiring of career Department employees is impermissible and unacceptable,” then at least Mr. Elston and Ms. McDonald might still be subject to prosecution despite report's conclusion that they are beyond discipline. And for others like DeFalaise and Mercer, at a minimum a letter should be placed in their personnel files indicating that they failed to perform their duties adequately. It is not entirely correct for the IG to have concluded that nothing can be done to either Elston or McDonald for violating federal law. While it may be true that no disciplinary action may be taken against them, there is one federal criminal provision that may well have been violated (18 U.S.C. § 600). This section provides as follows: It is not clear if the IG investigators interviewed any of the Honors Program applicants who actually were hired as a result of their pro-Republican ideology or affiliation (with either a campaign, the RNC or any Republican candidate). McDonald herself refused to be interviewed. If it could be shown that any person selected for the Honors Program was promised "directly or indirectly…any employment, position...as consideration, favor, or reward...for any political activity" or as a result of the applicant's connection "to any candidate or any political party" then the criminal Hatch Act provision cited above would apply. Federal criminal law also prohibits a person from changing another federal employee's "official rank or compensation" for "giving or withholding or neglecting to make any contribution of money or other valuable thing for any political purpose[.]" 18 U.S.C. § 606. If any of the Honors Program applicants were employed in federal clerkships (or by a congressional committee) at the time they were deselected and it could be shown that they were deselected because they had made a contribution "of money or other valuable thing" to a Democratic candidate or to the Democratic Party, then this provision would have been violated. Unfortunately, the IG report does not include information that would enable one to know if facts were investigated by the IG to determine if either of these federal criminal provisions were violated by Elston and/or McDonald. The mission statement of the United States Department of Justice is “to enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans.” What the current Administration has done to undermine this mission and what the two Presidential candidates will do to completely restore the integrity of the Department are two issues that warrant complete airing in the fall campaign. [1] “As the leader of the Screening Committee, Elston should have ensured that the Committee members used appropriate criteria in making decisions, in accord with federal law ad Department policy. Yet, he did not discuss with Fridman and McDonald the proper criteria for evaluating candidates…” |
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