When she was in the OAG, Goodling was also involved in the selection of career attorney candidates for temporary details to Department offices, including the ODAG, OLP, and EOUSA. During the course of our investigation, we examined the extent to which Goodling made decisions regarding the selection of detailees on the basis of political or ideological affiliations. In addition, we examined whether Susan Richmond and Jan Williams, the Department’s former White House Liaisons, considered political or ideological affiliations when evaluating career attorney detailees to Department offices.
In connection with her May 23, 2007, congressional testimony, Goodling submitted a written statement in which she discussed her role in selecting career attorney detailees for Department offices:
Due to the importance of these positions and the fact that detailees were sometimes considered for promotions into political positions, I generally conducted internet research and reference checks on these candidates, and I may have asked the wrong questions at times. In some cases, I learned and considered political information.
Goodling also asserted in her congressional testimony that senior Department managers were aware that she was using politics to screen career candidates for detail positions: “I think that they had a sense that I was looking for people that were generally Republicans to work on their staffs as detailees, and those were people who currently held career positions.”
Goodling’s testimony that she used political considerations when assessing potential detailees was confirmed by several witnesses.
For example, Michael Elston, former Chief of Staff to Deputy Attorney General Paul McNulty, stated that when he sought attorneys for details to the ODAG, he would generally look for candidates with the type of experience required by the position, but he also looked for candidates with Republican or conservative credentials in order to get them approved by the OAG. Elston said that Goodling made it clear to him that she did not want Democrats detailed to the ODAG because she had a “farm system” approach to filling vacancies in the Department, and she wanted to “credential” Republicans so that they could move on to higher political positions.37 Elston also stated that there were some Republicans that Goodling did not want to hire as detailees because they were not “Republican enough.” In addition, EOUSA senior management, including Director Battle, Deputy Director Nowacki, and Associate Counsel Natalie Voris, all told us that during the time Goodling served in the OAG, she used political or ideological affiliations to assess candidates for EOUSA details.
Because there were a limited number of detailees, Goodling did not screen a large number of detail candidates during her tenure in the OAG. However, the evidence showed that, when she did, she based her decisions in whole or in part on the candidates’ political or ideological affiliations.
We provide in the following section examples of Goodling’s use of political or ideological affiliations in selecting detailees.
On September 6, 2006, EOUSA notified all USAOs that it was seeking a detailee to work on counterterrorism issues. The notice stated that applicants must have counterterrorism prosecution experience, and that 5 years of criminal prosecution experience was preferred.
On September 19, 2006, an AUSA sent Voris his application for the counterterrorism detail. EOUSA Director Battle’s calendar shows that the AUSA was interviewed by video-teleconference on September 29, 2006.
The candidate had been an AUSA since 1987. He was an experienced terrorism prosecutor and had successfully prosecuted a high-profile terrorism case for which he received the Attorney General’s Award for Exceptional Service. He had also litigated several other terrorism cases and prosecuted major criminal cases. The candidate also served as chief of the anti-terrorism unit in his USAO, working with two joint terrorism task forces containing multiple agencies and agents, and he had communicated frequently with senior Department leadership with responsibility for terrorism issues.
Battle stated that Voris told him that the candidate was head and shoulders above the other candidates who had applied for the counterterrorism detail. Battle agreed with that assessment, stating that the candidate was the best applicant for the detail. John Kelly, the EOUSA Deputy Director and Chief of Staff, stated that he and Battle wanted to hire the candidate because he was one of the leading terrorism prosecutors in the country and a very talented attorney.
The candidate’s wife was a prominent local Democrat elected official and vice-chairman of a local Democratic Party. She also ran several Democratic congressional campaigns. The candidate was at times a registered Independent and at other times a registered Democrat.
Notwithstanding the candidate’s outstanding qualifications and EOUSA senior management’s desire to hire him, Goodling refused to approve the detail.
Battle, Kelly, and EOUSA Deputy Director Nowacki all told us that Goodling refused to allow the candidate to be detailed to EOUSA solely on the basis of his wife’s political party affiliation. Battle said he was very upset that Goodling opposed the detail because of political reasons. Nowacki told us that Goodling informed him that the candidate’s wife was a Democrat, and Nowacki believed that Goodling refused to allow the detail because of this fact. Similarly, Kelly told us that Goodling refused to allow EOUSA to hire the candidate because his wife was active in Democratic politics.
Battle said that he and Voris went to Goodling several times to argue that EOUSA should be allowed to hire the candidate, but they were not successful. Battle told us he did not appeal Goodling’s refusal to allow the candidate to be detailed to EOUSA because he did not think it would be successful given that Goodling worked in the OAG.
The candidate was never informed that he did not get the counterterrorism detail.
Because EOUSA had been unable to fill the counterterrorism detail after Goodling vetoed this candidate, a current EOUSA detailee was asked to assume EOUSA’s counterterrorism portfolio. This replacement detailee had been an AUSA since September 2004, after having served as an assistant district attorney for 3 years. He had been detailed to EOUSA in 2006. He had no counterterrorism experience and had less than the minimum of 5 years of federal criminal prosecution experience required by the EOUSA job announcement. Battle, Nowacki, Kelly, and Voris all said they thought that he was not qualified for the position, since he had no counterterrorism experience. The replacement candidate was a registered Republican who Goodling had interviewed and approved before he was selected for his EOUSA detail.
In sum, we concluded that Goodling prevented EOUSA from selecting an experienced career AUSA to handle counterterrorism issues because of his and his wife’s political affiliation. As a result, a much less experienced, but politically acceptable, attorney was assigned this important responsibility.
In 2006, an AUSA was contacted by Ron Tenpas, then Associate Deputy Attorney General and the AUSA’s former supervisor at her USAO, about the possibility of her being detailed to ODAG to work with its criminal litigation team.38 The candidate said she was interested, and interviewed first with White House Liaison Jan Williams and then with ODAG Chief of Staff Elston. According to Williams’s calendar, these interviews occurred on March 16, 2006.
Before these interviews, Tenpas asked the candidate about her political party affiliation. When the candidate said she was a Democrat, Tenpas told her it should not be a problem. The candidate told us that Williams asked her during the interview whether she had any problem supporting President Bush’s policies, and she replied that she had no issue with supporting the Department’s priorities.
When Elston interviewed the candidate, he asked the candidate if Williams had either questioned her about her party affiliation or indicated whether she knew about it. The candidate replied that she did not think her party affiliation was going to be an issue with Williams. The candidate also told Elston that then Principal Associate Deputy Attorney General (PADAG) William Mercer was aware of her party affiliation, because Tenpas had called her and told her that Mercer wanted to know if she would feel comfortable working in an office comprised of people with a different political affiliation.
Elston sent an e-mail to Williams on March 23, 2006, saying that if Williams was comfortable with the candidate, Elston would set up an interview with Deputy Attorney General McNulty. Williams replied that she was. The candidate was interviewed by McNulty and received and accepted an offer to be detailed to the ODAG. Because the offer was only for a 6-month detail, the candidate was concerned, however, about giving up her USAO Branch Chief position for such a short detail. When she contacted Elston about this concern, he told her that extending the detail should not be an issue, and she subsequently accepted the detail.
The AUSA said that shortly before her 6-month detail in the ODAG was to expire, she received the impression from Elston that there might be a problem in extending it. At that time Williams had been replaced by Goodling as the Department’s White House Liaison, and Goodling had to approve the extension.
In November 2006, the detailee discussed her detail extension with Elston, who told her that Goodling had strong views about putting Republicans in ODAG positions. The detailee said Elston was frustrated with Goodling because she opposed extending her detail. The detailee said that Elston told her repeatedly that he and Deputy Attorney General McNulty wanted her detail extended.
Elston told the detailee that he was going to meet with both Goodling and Sampson about her detail extension. Before the meeting, the detailee sent Elston an e-mail dated November 9, 2006, in which she wrote, “I honestly did not realize that my party affiliation was going to pose such a problem, mostly because no one indicated that it was a stumbling block when I first came on.... although I am a registered Democrat, the most political thing I do is vote.” Elston responded, “the DAG, Ron [Tenpas], and I all want you in ODAG.”
Elston confirmed to us that when the detailee’s 6-month detail ended, McNulty, Tenpas, and he all thought that it should be extended. Elston said the detailee had been working on the President’s Identity Theft Task Force and was doing an outstanding job.
The detailee said that after Elston met with Goodling and Sampson, Elston reported that they would only agree to a 3-month extension of her detail. The detailee said Elston told her he had humiliated himself and got down on his knees to even get this temporary extension.
The detailee said that, at the end of the 3-month extension, the detail was further extended for short periods for several different reasons related to finishing projects on which the detailee was working.
E-mails between Elston and Goodling confirm that this detail extension was a recurring issue between the ODAG and Goodling in 2006 and 2007.
Elston told us he thought he met with Sampson regarding the issue of the detail extension. Elston said he inferred that Sampson backed Goodling’s decision not to extend the detail for another 6 months because otherwise ODAG would have been able to keep the detailee. Sampson told us that he remembered there had been negotiations over extending this particular detail and that Goodling had worked with ODAG on the issue. Sampson said he did not recall that the issue regarding the detail extension was that the detailee was a Democrat. Sampson also said he did not recall meeting with Elston to discuss the detail extension.
McNulty stated that the detailee was outstanding, was a great person to work with, and he wanted to extend her detail. McNulty gave several reasons why Goodling opposed the extension. He said that Goodling’s opposition was based both on the detailee’s perceived failure to support administration policies and also based on her political party affiliation.39
Shortly after Sampson and Goodling left the Department in March 2007, Elston and McNulty told the detailee that she could stay at ODAG. The detailee, however, had already accepted an offer for a supervisory position at her USAO, and she declined the ODAG’s offer.
An AUSA had been detailed to EOUSA in 2005, working first in the General Counsel’s Office and then in the Office of the Counsel to the Director. During the AUSA’s detail, EOUSA Associate Counsel Voris forwarded her résumé to Goodling for consideration of appointing the AUSA as the EOUSA’s Project Safe Neighborhoods coordinator.40 The AUSA was not aware of Voris’s recommendation.
Voris told us that the AUSA was a “phenomenal attorney.” Voris explained that while the detailee had worked in the EOUSA General Counsel’s office and transferred to the Counsel to the Director’s Office, Voris wanted to expand her portfolio to include the Project Safe Neighborhoods coordinator position.
On August 6, 2006, Goodling sent an e-mail to her secretary to arrange an interview with the AUSA. The interview occurred on August 24, 2006.
The AUSA told us she did not know why Goodling had wanted to interview her. When the AUSA arrived for the interview, Goodling’s secretary gave her a Non-Career PPO form to complete. She asked Goodling’s secretary why she needed to complete the form and was told that she was being considered for a position. On the PPO form the AUSA wrote that she voted Democratic in local elections due to the candidate running, and voted Republican in the general election.
When the AUSA met Goodling to begin the interview, Goodling told her she was not supposed to have been given the PPO form. Goodling told her that she normally interviewed everyone hired in EOUSA, but had not had a chance to talk to her and wanted to get to know her. The AUSA said the interview was cordial and friendly, but that she was upset about being asked to fill out the PPO form requiring disclosure of political information.
Voris stated that Goodling subsequently rejected her recommendation that the AUSA become EOUSA’s Project Safe Neighborhoods coordinator. Voris said that Goodling told her that the AUSA was a Democrat and rejected her for the coordinator position on that basis.
The AUSA was detailed to the ODAG in 2007 after Goodling left the Department.
On June 29, 2006, an AUSA applied for a 1-year detail to the Office of Counsel to the Director of EOUSA. The candidate had been a federal criminal prosecutor for 8 years, and a state criminal prosecutor for 10 years. Nothing in the candidate’s résumé or cover letter indicated her political party affiliation.
Voris stated that EOUSA Deputy Director Nowacki told her that Goodling rejected the detail because Goodling believed the candidate was a Democrat. Voris also said Nowacki told her that Goodling threw the candidate’s résumé in the trash. Nowacki said he recalled that Goodling did not like the applicant’s résumé and that she threw it in the trash, but said he did not recall why.
The candidate told us that Goodling never interviewed her. The candidate also said she did not know that Goodling was considering her for any position and did not know that Goodling had rejected her detail application.
A career attorney from the Department’s Criminal Division was detailed to the ODAG in July 2005 for a short period to work on the Department’s Project Safe Neighborhoods initiative, as well as other issues such as anti-gangs initiatives, violent crime, and firearms.
In an October 2005 e-mail exchange, Sampson told William Mercer, who was the Principal Associate Deputy Attorney General at the time, that he thought highly of the candidate and supported the possibility of extending her detail to the ODAG for a longer period. Mercer replied that “Jan [Williams] says she’s a big D.” Sampson replied, “I’ve heard that – even so, she’s very strong.”
Sampson told us that he wanted this attorney for an ODAG detail and did not care that she was a Democrat. Sampson told us he knew that the candidate supported the Project Safe Neighborhoods initiative, which was her initial assignment in the ODAG, and so her political affiliation did not matter to him. The candidate’s detail was extended several times, and she served in the ODAG until July 2007 when she became Counselor to the OLP Assistant Attorney General.
Elston told us, however, that either Williams or Goodling told him that they did not want to extend the detail because she was a Democrat. Elston said that the detailee’s supervisor told him that if the detailee left ODAG, he would “throw himself out the window.” Elston said he felt the same way about her. According to Elston, for a period of time the OAG would only extend the detail on a month-to-month basis, until Goodling grudgingly extended it for 6 months.
Goodling also appears to have rejected an EOUSA detailee at least in part on the basis of her alleged political party affiliation, for three positions: a detail to OLP, a detail to the ODAG, and an extension of her EOUSA detail.
The detailee had been an AUSA since 2000. In 2005, she began her EOUSA detail and overlapped with Goodling in EOUSA for several months. She served in the EOUSA Office of Counsel to the Director for 17 months and then, for reasons described below, transferred to the EOUSA General Counsel’s Office for the remainder of her detail. Her responsibilities in her first position included violent crime and white collar criminal matters.
According to the AUSA, in the fall of 2005, she spoke with Richard Hertling, the OLP Principal Deputy Assistant Attorney General, about a detail to OLP. According to the AUSA, the potential detail was to work on violent crime issues for OLP, and her detail was to begin in January 2006 when her EOUSA detail ended. The AUSA said she also recalled negotiations between EOUSA and OLP regarding who would be financially responsible for funding the cost of a replacement for her in the USAO while she was on detail. She said she was told that eventually the issue had been worked out and that she was to start her OLP detail on April 1, 2006.
On December 2, 2005, OLP AAG Rachel Brand sent an e-mail to EOUSA Director Battle saying that “my senior staff raves about [the AUSA].... It sounds like she’d be able to make a significant contribution to our policy development efforts.... I’d really appreciate your support in [arranging for her to be detailed to OLP.]” Battle said he subsequently approved the AUSA’s detail to OLP.
After some time had passed and she had not heard from OLP, the AUSA called the OLP Chief of Staff who told her that the OLP detail had been given to someone else. She then spoke with Hertling, who told her that Goodling had rejected her detail because she was a Democrat.
Hertling told us that he had been very impressed with the AUSA and wanted her to be detailed to OLP. He said that he discussed the detail with Goodling, but that Goodling had an extremely negative opinion of the AUSA from the time they had worked together in EOUSA. According to Hertling, Goodling told him that the AUSA was “politically unreliable” and Goodling questioned whether she supported the agenda of the President and Attorney General. Hertling said that Goodling also told him that the AUSA talked too much and did not get along with people. Hertling said that he told the AUSA that Goodling questioned her political reliability, but did not tell her about Goodling’s other negative remarks.
The AUSA told us she informed Hertling she was not a Democrat, but Hertling replied that since Goodling thought she was, she could not be detailed to OLP. She said that Hertling counseled her to find another position in the Department, and then come back to OLP after Goodling left the Department.
Brand told us that she and Hertling wanted to hire the AUSA, but did not because Goodling said very negative things about her. According to Brand, Goodling said that the AUSA was insubordinate and would not tell her supervisors what she was doing. Brand said she did not recall Goodling telling her that the AUSA was a Democrat. Battle also said Goodling did not like the AUSA because Goodling perceived her to be aligned with an EOUSA Deputy Director whom Goodling disliked.
EOUSA Associate Counsel Voris said she had supported the AUSA’s detail to OLP. According to Voris, when Goodling learned that the AUSA was discussing a detail with OLP, Goodling became very agitated and told Voris to prevent the detail. Voris appealed to Elston, but Elston told Voris that he could not influence the decision. Elston told us he did not recall this conversation, but said it was possible that it had occurred.
After Goodling blocked the AUSA’s OLP detail, the AUSA learned from Voris that Goodling also refused to extend her EOUSA detail. As a result, she would have had to return to her USAO with only 2 weeks notice. Voris stated that she supported the extension of the AUSA’s EOUSA detail and had many conversations with Goodling about her refusal to extend it. Voris said she told Goodling that she was treating the AUSA unfairly. Voris stated that Goodling opposed extending the detail because she held a grudge against the AUSA for siding with two other EOUSA managers. Voris said that Goodling also told her she opposed the AUSA’s detail extension because she was a Democrat. EOUSA Deputy Director Nowacki told us Voris also informed him that Goodling denied the detail extension because the AUSA was not a Republican.
The AUSA told us she tried to meet with Goodling to discuss her detail extension, but Goodling ignored her request for a meeting. The AUSA then met with Kyle Sampson on March 15, 2006, to discuss extending her detail. She told him that Goodling wanted to terminate her detail immediately. That same day Sampson sent Goodling an e-mail with the subject line “I know and like [the AUSA],” asking Goodling to tell him what was going on between the AUSA and her. We did not find an e-mail reply from Goodling and the AUSA reported that she never heard back from Sampson after her meeting with him.
Sampson said he recalled meeting with the AUSA and asking Goodling to work something out with her. Sampson said he did not recall that party affiliation was an issue.
Voris told us she understood that the AUSA spoke to Sampson about Goodling’s decision, but that Sampson told the AUSA he did not have a say in the matter.
Voris told the AUSA that she could serve out the remainder of her detail in EOUSA’s General Counsel’s Office, and the AUSA was transferred to that office. The AUSA said she understood that Goodling allowed her to move to the General Counsel’s Office because it was not a policy-oriented position. The AUSA related this understanding in an April 28, 2006, e-mail to Sampson in which she told him that she was allowed to stay in Washington “but only if I was not working in a policy position.” Voris confirmed that Goodling approved the AUSA’s transfer to the General Counsel’s Office because that office did not make policy.
The AUSA said that after these two incidents, Elston told her that he wanted to hire her to work in the ODAG but Goodling also refused to allow that detail. The AUSA also recalled that Elston informed her that he and Goodling had disagreed about whether the AUSA was a Republican or a Democrat. The AUSA said that Elston knew she was a Republican because he had asked her.
Elston told us he tried to hire the AUSA several times for the ODAG. Elston said Goodling never gave him the real reason why she did not like the AUSA, and said he did not recall a conversation in which he and Goodling argued about whether the AUSA was a Democrat or Republican. Elston said he did not think her party affiliation was Goodling’s real reason for not approving the AUSA’s details.
Finally, the AUSA also told us about an occasion during which, in Goodling’s presence, she had praised the intelligence of Patrick Fitzgerald, the U.S. Attorney for the Northern District of Illinois. At the time, Fitzgerald was handling the investigation of Lewis “Scooter” Libby. According to the AUSA, Goodling reacted badly to her praise for Fitzgerald and said something to the effect that Fitzgerald was not on the Republican side or was against the party.
In the fall or winter of 2006, an EOUSA detailee, who had been a career attorney with the Department since 1992 and who was working temporarily with the Office of Legal Policy, expressed an interest in being detailed to OLP. The candidate was interviewed by several of OLP’s senior staff. Sometime after those interviews, OLP contacted the candidate and told him he would need to interview with Goodling.
When the candidate went to Goodling’s office for his interview, Goodling’s secretary gave him a Non-Career PPO form to complete. The candidate said he declined to complete the form, since he was a career employee seeking a temporary detail.
During his interview, Goodling asked the candidate questions about which Supreme Court Justice, President, legislator, or person in public life he admired most and the reasons for his choices. Goodling also asked for his views on federalism. The candidate told us he perceived those questions as indirect questions about his political affiliation.41
The candidate said that Goodling told him that the Attorney General relied on OLP’s legal advice and that the Attorney General expected to receive advice consistent with his policies and beliefs. Goodling then asked if he had a problem with providing such advice. The candidate said he was troubled by this question because it seemed to contradict his belief that his legal advice should be based on an objective assessment of the law and that the outcome of his advice should not be predetermined. He told Goodling that one of the reasons he enjoyed working with ODAG and OLP was that those offices listened to the views of career attorneys.
At this time, Rachel Brand was the OLP Assistant Attorney General. Brand told us that even though OLP wanted to hire the candidate, Goodling would not permit OLP to do so because Goodling disliked him. Brand said that although she was very annoyed that Goodling could tell her who could be detailed to OLP, she did not challenge Goodling because Brand said this was not a “fight worth picking.”
Several weeks after his interview with Goodling, the candidate called OLP to ask about the status of his detail and was told that Goodling had rejected his application.
An attorney with 6 years of experience as an AUSA was detailed to the ODAG to work on national security issues.
The AUSA told us that Deputy Attorney General McNulty had invited him to interview for the detailee position in the ODAG. After the interview, McNulty offered him a detail position, which he accepted. McNulty told him that Elston would coordinate his transfer from the USAO to the ODAG.
However, Elston contacted the AUSA and said that even though he had received an offer from the Deputy Attorney General, he still had to interview with Goodling.
Prior to his interview with Goodling, the AUSA was asked to complete a Non-Career PPO form. On the form, he identified himself as a Republican. The AUSA said he believes Goodling probably also asked him about his political financial contributions.
After his interview with Goodling, several weeks passed with no word on the status of his detail. As a result, the AUSA called Elston. According to Elston and the AUSA, Elston told him that the reason for the delay was that Goodling was taking a long time to conduct Internet research on him because his last name was common. Elston told us that he had to ask Goodling several times to approve the detail. Goodling eventually approved it, and in late October 2006 the AUSA began working for the ODAG. McNulty told us that he did not know that Goodling had held up the AUSA’s arrival for over 6 weeks.
As these examples illustrate, we found that Goodling regularly considered a candidate’s political or ideological affiliations when deciding whether to approve details of career attorneys to positions in EOUSA, OLP, and the ODAG, or whether to extend existing details in these offices. In these examples, the candidates were qualified for the details and supported by the leaders of those offices because of their qualifications and ability. However, Goodling’s review focused on their political or ideological affiliations and she often rejected candidates based upon these affiliations, or her perception of these affiliations, some of which were inaccurate, without regard to professional qualifications.
Senior officials in these offices sometimes objected to Goodling’s decisions, and argued with her about the quality of these candidates. Sometimes their appeals were successful, but more often they were not. Even candidates personally offered positions by the Deputy Attorney General were required to be interviewed by and receive the approval of Goodling before they could begin their details.
Goodling’s decisions were particularly damaging to the Department because they resulted in high-quality candidates being rejected for important positions. For example, in one of the most troubling instances an experienced terrorism prosecutor who had received the Attorney General’s Award for Exceptional Service was rejected by Goodling for a detail to EOUSA to work on counterterrorism issues because of his wife’s political affiliations. Instead, EOUSA had to select a much more junior attorney who it believed was not qualified for the position. This use of political affiliation prevented an experienced career attorney from assuming important counterterrorism responsibilities, and instead resulted in the assignment of the duties to a less qualified candidate.
In addition to Goodling, we examined whether Susan Richmond and Jan Williams, Goodling’s predecessors as the Department’s White House Liaisons, considered political or ideological affiliations when approving details to Department of Justice offices. We did not find any evidence that Williams did so, and we found evidence (Candidate #2 above) that Williams approved a detailee she knew to be Democrat.
However, we discuss below two cases in which the evidence shows that Richmond used political affiliations to make decisions on detailee candidates to the ODAG, and that Williams participated in those decisions when she worked in the White House Presidential Personnel Office.42
In 2004, a career Department attorney was approached by Stuart Levey, then the Principle Associate Deputy Attorney General (PADAG), about a temporary detail to the ODAG to work on immigration issues. The attorney was working in the Office of Immigration Litigation (OIL) in the Civil Division. Levey had previously worked with the attorney and had been impressed with his abilities.
Deputy Attorney General James Comey and others in the ODAG interviewed the attorney regarding the detail. After the interviews, the ODAG offered the attorney a 3-month detail, and he accepted.
On March 24, 2004, an administrative employee in the ODAG sent an e-mail to Department White House Liaison Richmond stating that Comey wanted to have the attorney detailed to the ODAG for 3 months. This e-mail resulted in a series of telephone calls and e-mails within the OAG and between the OAG and ODAG. The e-mails reflect Richmond’s annoyance that the detail had not been approved by the OAG.
Richmond asserted in the e-mails that the immigration portfolio that the detailee was to assume was supposed to be assigned to a Schedule C political appointee. Richmond told ODAG Chief of Staff Chuck Rosenberg that the OAG would not approve the attorney’s detail.
On March 31, 2004, Comey sent an e-mail to Richmond to inform her that he had authorized the attorney’s detail as a temporary measure, even though he knew that Richmond was trying to find a political appointee for the immigration portfolio. However, Richmond was still upset about the decision to have the attorney detailed to ODAG, and she complained by e-mail to both Williams and David Higbee (at that time on detail from the Department) in the White House Presidential Personnel Office.43 In her reply to Comey, Richmond noted that the OAG had identified a candidate for a political position in the ODAG to handle immigration matters, and said that the candidate could be brought on quickly. Comey responded that he was hiring the detailee even if the detail would last only a few weeks so that someone could handle immigration matters until a permanent candidate was identified.
On April 2, 2004, Richmond forwarded Comey’s e-mail to Williams at the White House, who in turn forwarded it to other White House Presidential Personnel Office staff. In Williams’s e-mail, she commented, “This is the e-mail I mentioned to you in our meeting. It was sent to Susan after Comey detailed another career democrat into a position that was designated [Schedule C].”
The career attorney began his detail to the ODAG in April 2004. Beginning in June 2004, Richmond sent ODAG Chief of Staff Rosenberg and PADAG Levey numerous e-mails stating that the detailee’s 3-month detail was due to expire, that she had several replacement candidates, and that the ODAG should interview and select one of them. In one e-mail, Richmond summarized three candidates’ qualifications, and for each noted “loyalty” as an attribute. Richmond told us that term referred to adherence to the President’s policies.
On July 1, 2004, Levey sent an e-mail to the detailee stating that he was doing a great job and asking if he wanted to extend his detail. The detailee said that he did.
On July 6, 2004, Richmond sent an e-mail to David Ayres, Chief of Staff to the Attorney General, in which she asked to meet with him about a conversation Ayres had with ODAG Chief of Staff Rosenberg regarding the detailee. According to the e-mail, Rosenberg had told Richmond that Ayers had approved the detail extension. Richmond noted in the e-mail that the ODAG had selected the detailee “instead of one of the two R. candidates that we had asked them to consider.” Ayres responded that he had in fact approved the detail extension based on Levey’s “personal assurance” about the detailee, but Ayres added that he had told Levey the extension needed to be discussed with Richmond. Richmond replied that “[the detailee] is the Dem. that the WH went berserk over (as did I) when they found out the DAG had detailed him to ODAG w/out approval.... The political SES in CIV.... [s]ays he has some... people in the same branch who are R’s and would be better.”
On July 9, Levey sent an e-mail to Comey and Rosenberg regarding the detailee, stating:
I called Jan Williams to ask her to reconsider the WH decision that [the detailee] had to go. I told her that I thought he was doing a great job, that you were also very happy with him, that I knew he would be loyal to the ‘team’ on the issues he works on, that he just briefed the AG for an hour and did a great job, and that someone ‘reliable’ could oversee him. I also probed whether there is something negative about him that I did not know. Turns our there is: he is a registered Democrat and that Jan thinks that everyone in the leadership offices should have some demonstrated loyalty to the President. She all but said that he should pack his boxes and get out of Dodge by sunset.
On July 16, 2004, the ODAG informed Richmond that it had selected another OIL career attorney to replace the detailee. The replacement was one of the three candidates who previously had been interviewed and approved by Richmond. The replacement was not given a political appointment but was instead detailed to the ODAG as a career Schedule A attorney.
On July 19, the first detailee was informed that his detail would not be extended. According to the detailee, when he asked why he had to leave, Rosenberg told him that the OAG researches candidates for ODAG positions and that if it found that the candidate was a Democrat, the candidate was not viewed as part of the team and could not be hired.
On November 8, 2004, Richmond sent an e-mail to Williams stating that the attorney who had replaced the first detailee wanted to end his detail. On November 15, Rosenberg sent an e-mail to Comey suggesting that they bring back the first detailee to the ODAG, and Comey agreed. On December 8, 2004, Rosenberg sent an e-mail to Richmond suggesting that the first detailee be asked to return to replace the second detailee. Rosenberg told Richmond that the first detailee “performed extraordinarily well” and that he was “smart, aggressive, and reliable.” Richmond responded by stating that all leadership office hiring or details were on hold until January or February of 2005, which was after the transition from Attorney General Ashcroft to Attorney General Gonzales. As a result, the first detailee did not return to the ODAG.
On March 26, 2004, Rosenberg sent an e-mail to Comey and Levey identifying a detail candidate for a Counsel to the Deputy Attorney General position, with a portfolio relating to the Criminal Division. The candidate was then working for the Homeland Security Counsel (HSC) in the White House, on a detail from her attorney position in the Criminal Division.44 Levey responded that he thought the detailee candidate was very good. Comey noted that the candidate’s supervisor in the HSC “raved about her,” and agreed that she should be interviewed. The candidate was interviewed in the ODAG on May 4, 2004.
Later that day, Rosenberg sent an e-mail to Richmond asking her whether she and the White House would approve the candidate’s detail to the ODAG. Richmond forwarded Rosenberg’s e-mail to Jan Williams in the White House, asking Williams if she could find out who the candidate was and if she was a “viable option.” Less than a minute later Williams replied, “She is a D.”
After receiving this news from Williams, Richmond forwarded Rosenberg’s e-mail regarding the candidate to OAG Deputy Chief of Staff David Israelite with the comment, “Here we go again. She’s a D.” Richmond also sent an e-mail to Williams saying that she would talk to Rosenberg the next day.
On May 10, 2004, Rosenberg sent an e-mail to Comey and Levey stating that Richmond said she had asked about the detailee candidate and the answer was a “firm no.”
The detailee candidate told us that when Rosenberg informed her that she would not be selected for the detail he said that the problem was in the White House and not in the Department. However, Rosenberg told us he did not recall telling her that the problem regarding her detail originated in the White House.
As noted above, on July 20, 2007, Attorney General Gonzales announced a series of reforms to address allegations regarding the politicization of hiring within the Department of Justice. One of those reforms involved career attorney details to the Office of the Deputy Attorney General:
[then Acting Deputy Attorney General Craig Morford] and I agree that the Department must continue to recruit the best and brightest lawyers. Therefore, I am in the process of providing the Deputy Attorney General with the authority to detail and hire attorneys that he believes will best fill positions within his division.
With this change in procedure, it appears that the Deputy Attorney General now has the authority to detail attorneys to the ODAG without OAG approval.
In this section of the report, we analyze whether Goodling’s or Richmond’s use of political or ideological affiliations to decide whether to approve details for career attorneys violated Department policy or federal law.
As discussed in Chapter Two of this report, temporary detail assignments are among the “personnel action[s]” that are included within the scope of the prohibited personnel practices enumerated in 5 U.S.C. 2302(b). “‘Personnel action’ means.... a detail, transfer, or reassignment... ” 5 U.S.C. 2302(a)(2)(A)(iv) (emphasis added). Accordingly, it is a prohibited personnel practice and a violation of federal law to discriminate for or against any candidate for a detail position on the basis of political affiliation, as discussed in Chapter Two (Section V) above.
However, the Civil Service Reform Act makes clear that positions which are of a “confidential, policy-determining, policy-making, or policy-advocating character....” are not covered by the prohibited personnel practices set forth in Section 2302(b). 2302(a)(2)(B)(i). Some of the positions occupied or sought by the detailee candidates discussed above could have been filled by political appointees, and some arguably involved sensitive policy-making roles in the Department. Goodling told Congress, and Richmond told us, that the OAG should be able to consider political or ideological affiliations with respect to these positions, regardless of whether the position was filled by a career detailee or a permanent political selection. Thus, according to their argument, the prohibited personnel practices would not apply to a detail position that is sufficiently policy oriented, and political affiliations could be used to screen candidates for the detail without violating the prohibitions contained in 2302(b).45
We believe that some of the career attorneys who were or who wanted to be temporarily detailed to the ODAG or OLP may have filled “confidential, policy-determining, policy-making, or policy-advocating” positions, and therefore it may have been permissible to consider the political affiliations of these detailee candidates. However, not all of the positions at issue fit that definition. Therefore the analysis depends on the specific duties of the position.
We found no clear guidance on this issue in either federal law or Department policy. Moreover, the determination of whether a particular ODAG or OLP detail is sufficiently policy-related to be exempt from federal law and Department policy is inherently subjective and depends on an assessment of the circumstances of each position. Therefore, we do not reach a conclusion as to whether Goodling or Richmond violated federal law or Department policy with regard to many of the positions at issue.
However, we believe that none of the EOUSA positions described above (Candidates 1, 3, 4, and 6) can be considered “confidential, policy-determining, policy-making, or policy-advocating” positions, and therefore it was improper for Goodling to use political or ideological affiliations in selecting or rejecting detailees to these positions.
Several senior EOUSA staff told us that EOUSA does not make policy. For example, former EOUSA Acting Director Steven Parent stated that EOUSA is a largely administrative office with the exception of its responsibility for screening candidates for U.S. Attorney positions. Similarly, former EOUSA Director Battle stated that EOUSA was essentially an administrative office. In addition, at the time of the events discussed in this report, only 2 EOUSA employees out of approximately 530 were political appointees (the Director and one Deputy Director). Currently, EOUSA has one political appointee, and a second political appointee is on a temporary detail to Iraq. In contrast, both ODAG and OLP are staffed with significant numbers of political appointees.
For these reasons, we believe that Goodling violated federal law and Department policy, and committed misconduct, when she discriminated against EOUSA detailee candidates based on political or ideological affiliations.
We also considered whether use of political affiliations to screen career attorney candidates for details to the other Department offices violated Department policy. As mentioned above, the Department’s employment discrimination policy, 28 C.F.R. § 42.1(a), prohibits political discrimination “in employment within the Department.” That policy does not specifically refer to details.
Moreover, the Department’s recitation of whether its antidiscrimination employment policy applies to details has been inconsistent. Recent detail announcements posted on the Office of Attorney Recruitment and Management (OARM) website or distributed to USAOs sometimes contain antidiscrimination employment provisions and sometimes do not. For example, in 2007 OARM posted an announcement for a detail to OLP. The announcement contained language stating that there will be no discrimination based on, among other things, politics. A 2007 OARM posted announcement for a detail to the Professional Responsibility Advisory Office contained identical language. In contrast, a 2007 EOUSA memorandum sent to all USAOs announcing a detail to EOUSA did not contain any information about the Department’s antidiscrimination employment policy.
We believe that the Department’s employment discrimination policy, 28 C.F.R. § 42.1(a), prohibits use of political affiliations to screen candidates for temporary details to positions that are not of a “confidential, policy-determining, policy-making, or policy-advocating character....”, such as details to EOUSA. However, the Department has no clear rules regarding the use of political affiliations to screen candidates for temporary details to these non-policy-making positions.
Finally, regardless of the coverage of the civil service laws or the Department’s anti-discrimination policy, we were also troubled by cases in which details of career attorneys who were performing in an outstanding fashion were terminated because of their political affiliation. Both Richmond and Goodling objected to extending the details of career attorneys in the ODAG even though the Deputy Attorney General and his staff supported the extensions. In both cases, the Deputy Attorney General and his staff rated the attorneys’ performance as outstanding. In both cases, the Deputy Attorney General asserted that the attorneys fully supported the Administration’s policies that the attorneys were assigned to promote. Yet, in both cases, Richmond and Goodling sought to terminate or prevent the details solely because the attorneys were Democrats.46
We recommend that the Department clarify its policies on when political considerations can and cannot be considered when assessing career candidates for details to various Department offices. We believe that the Department would benefit from having clear rules about the criteria that may be used to assess career attorney candidates for various types of details.
Goodling acknowledged in her congressional testimony that she hired people in part because she thought “that it would be good if we could hire some people that could be other U.S. attorneys down the road.” This is consistent with Elston’s testimony that Goodling sought to “credential” candidates.
There is also conflicting evidence regarding whether McNulty was contemporaneously aware that Goodling refused to extend this detail because of political affiliation. The detailee said Tenpas told her that McNulty thought that she was leaving ODAG voluntarily and was very upset to learn that Goodling had forced her to leave. According to the detailee, the day after Tenpas told McNulty that she was forced to leave, McNulty went to her office and told her he was very disappointed and did not understand how this could have happened. However, Elston told us he would have kept McNulty informed about these issues, and he would not have gone to a meeting about extending the detail with Sampson and Goodling without consulting with McNulty. Although we asked McNulty whether he was contemporaneously aware that Goodling refused to extend the detailee’s detail because she was a Democrat, McNulty said he had no firm recollection of this fact.
Project Safe Neighborhoods is a Department initiative that involves collaborative efforts by federal, state, and local law enforcement agencies, prosecutors, and communities to prevent and deter gun violence.
The candidate also told us that in the summer of 2006, he had called Elston to discuss the possibility of being detailed to ODAG. The candidate recalled that during their conversation Elston said something to the effect of, “I’m sorry to have to ask you this... but... the White House is going to want to know what is your party affiliation and who did you vote for in the last election.” The candidate told Elston that he was a Republican who voted for President Bush. The candidate was never formally interviewed for an ODAG position. Elston told us he did not recall asking these questions, but stated that he might have asked them because he knew that Goodling would want to know the answers. Elston said he did not think he would have told the candidate that the White House would want to know his party affiliation, but rather he may have said that the White House Liaison (Goodling) would want that information.
During Richmond’s initial interview for this investigation, she stated that ODAG detail candidates’ political affiliations were not relevant to her decisions because “I didn’t believe that for career officials that that really mattered.... for them to be a member of a particular political party.” After this interview, we found the evidence set forth in this section that Richmond did in fact use political affiliation to screen two ODAG detailee candidates.
We therefore re-interviewed Richmond. In her second interview, Richmond confirmed that she used political affiliation to screen some ODAG detail candidates. However, Richmond said that her prior testimony was accurate, and that when she stated that party affiliation was not a requirement for a detail, she was referring to detail positions that were not inherently political. Richmond said she drew a distinction between career attorneys detailed into non-political positions, and career attorneys detailed into positions that could be filled by political appointees whose portfolios would include significant policy issues. For such detailees, or detailee applicants, Richmond said she believed it was appropriate to consider the applicant’s political party affiliation.
The tension between OAG and ODAG on this and other issues later led the OAG, through Goodling, to instruct the Justice Management Division (JMD) to change the Department’s regulations by reserving to OAG personnel authority over employees in the ODAG and the Associate Attorney General’s offices. Goodling conveyed that direction to JMD in January 2006, and the amendment was incorporated into an existing set of draft regulations that addressed technical issues in unrelated regulations. The change added subsections to 28 C.F.R. §§ 0.15(h) (for the ODAG) and 0.19(d) (for the Associate Attorney General), which reserved to the Attorney General the authority to take final action in matters pertaining to the appointment, employment, pay, separation, and general administration of Schedule C (political appointment) positions and of positions that meet “the same criteria as a Schedule C position.” The changes were published on February 7, 2006.
Prior to the publication of the amendments, JMD had expressed concern to Goodling that the amendment would place a significant administrative burden on the Attorney General, and asked whether the Attorney General wanted to delegate the authority “within his immediate staff.” A week later Goodling responded that the delegation should be from the Attorney General to his Chief of Staff and the White House Liaison. (Goodling was not the White House Liaison at the time.) Accordingly, an internal order was drafted effectuating the delegation to the OAG Chief of Staff and the White House Liaison. The order was signed on March 1, 2006. Attorney General Gonzales’s signature is on the order, but Sampson testified that he approved the use of the autopen for that order. Gonzales stated at his interview that he had “no present recollection of any of this,” and that he did not recall discussing with Sampson or with Goodling the reservation of authority or the delegation of it to the Chief of Staff and the White House Liaison.
On July 25, 2007, after congressional concerns focused on the conduct of Goodling and others, Gonzales rescinded the amendments that reserved personnel authority to the OAG, and revoked the internal order delegating such authority to the OAG Chief of Staff and White House Liaison.
This detailee candidate had been a trial attorney in the Criminal Division and had been detailed to the White House HSC from 2002 to 2004. She had been invited to apply for the HSC detail and interviewed with several HSC staff. At the end of the HSC interview process, the candidate was told that because she was a Democrat there was a problem finalizing her detail. Eventually, the candidate spoke with someone at the White House Presidential Personnel Office regarding her party affiliation and views on the issues that she would be working on at the HSC. She was thereafter offered the detail position. According to the candidate, during her 2 years at the HSC, she received excellent performance reviews.
Goodling’s and Richmond’s argument, however, is problematic. As noted above, the CSRA exempts from its scope those employees whose positions are of a “confidential, policy-determining, policy-making, or policy-advocating character....” 2302(a)(2)(B)(i). This language arguably would allow the Department to use political affiliation to screen career candidates for details to positions meeting the criteria of 2302(a)(2)(B)(i). However, courts that have interpreted the scope of 2302(a)(2)(B)(i) have stated that it was intended to cover only political appointees. See, e.g., O’Brien v. Ofc. of Indep. Counsel, 74 M.S.P.R. 192, 207 (1997) (suggesting that “the terms of the exception found at 5 U.S.C. § 2302(a)(2)(B)(i) are a shorthand way of describing ‘political appointee’ positions”); Special Counsel v. Peace Corps, 31 M.S.P.R. 225, 231 (1986) (“[A]n excessive preoccupation with the meaning of each term in isolation distorts the purpose of the exception found at 5 U.S.C. § 2302(a)(2)(B)(i). These terms are... only a shorthand way of describing positions to be filled by so-called ‘political appointees.’”). Career attorneys who are temporarily detailed into Department offices are not “political appointees.” They remain Schedule A career attorneys, and Schedule A positions are “positions which are not of a confidential or policy-determining character,” 5 C.F.R. § 213.3101; 5 C.F.R. § 213.3102(d). Thus, we believe there is uncertainty whether, notwithstanding the 2302(a)(2)(B)(i) exemption from the CSRA, career detailees can be selected on the basis of political affiliation, because they do not fill political positions.
As noted above, in response to the allegations of politicized hiring in the Department, former Attorney General Gonzales gave the Deputy Attorney General authority to select his or her own staff, including detailees. We believe that this change can help prevent the recurrence of such incidents.