Read It And Weep

by hilzoy

Via TPM: Murray Waas has a really important story in the National Journal. It's worth reading in its entorety, since Waas reports that Alberto Gonzales first took complete control of all hiring and firing authority of DoJ political appointees who don't need Senate confirmation -- which is to say, large swaths of the upper levels of the DoJ -- and then delegated that authority to Kyle Sampson and Monica Goodling. Recall that both Sampson and Goodling are in their thirties, neither has much legal experience at all, and Goodling was the White House liaison.

What I think this means is that the political operation at the White House was taking over the upper levels of the Department of Justice in a way that goes far, far beyond the sorts of politicization that are usually regarded as scandalous. It's scandalous if the DoJ decides to prosecute someone Just because that person is a political enemy, or not to prosecute someone because he or she is a political ally. It's way, way past scandalous if the White House political operation tries to make the DoJ into its enforcement arm.

Excerpts:

"Attorney General Alberto Gonzales signed a highly confidential order in March 2006 delegating to two of his top aides -- who have since resigned because of their central roles in the firings of eight U.S. attorneys -- extraordinary authority over the hiring and firing of most non-civil-service employees of the Justice Department. A copy of the order and other Justice Department records related to the conception and implementation of the order were provided to National Journal.

In the order, Gonzales delegated to his then-chief of staff, D. Kyle Sampson, and his White House liaison "the authority, with the approval of the Attorney General, to take final action in matters pertaining to the appointment, employment, pay, separation, and general administration" of virtually all non-civil-service employees of the Justice Department, including all of the department's political appointees who do not require Senate confirmation. Monica Goodling became White House liaison in April 2006, the month after Gonzales signed the order.

The existence of the order suggests that a broad effort was under way by the White House to place politically and ideologically loyal appointees throughout the Justice Department, not just at the U.S.-attorney level. Department records show that the personnel authority was delegated to the two aides at about the same time they were working with the White House in planning the firings of a dozen U.S. attorneys, eight of whom were, in fact, later dismissed.

A senior executive branch official familiar with the delegation of authority said in an interview that -- as was the case with the firings of the U.S. attorneys and the selection of their replacements -- the two aides intended to work closely with White House political aides and the White House counsel's office in deciding which senior Justice Department officials to dismiss and whom to appoint to their posts. "It was an attempt to make the department more responsive to the political side of the White House and to do it in such a way that people would not know it was going on," the official said."

More excerpts and comments below the fold.

Waas again:

"Justice Department records indicate that while the order was being drafted, McNulty and other senior department officials were at times purposely kept out of the loop.

A correspondence record from Gonzales's own files indicates that when Paul Corts, the Justice Department's assistant attorney general for administration, transmitted a memo regarding the then-draft plan to Gonzales, information regarding the plan was ordered to be withheld from McNulty. A "control sheet" of the department's Executive Secretariat, which tracks sensitive records as they move among senior Justice officials, includes this notation regarding the transmission of the Corts memo to Gonzales: "Per instructions received from JMD [the Justice Department's Management Division], ODAG [the office of the Deputy Attorney General] is to bypassed on the package."

To give Sampson and Goodling hiring and firing authority, the Justice Department first had to place that authority directly under Gonzales. The department published regulations in the Federal Register on February 7, 2006, stating that the final authority would be reserved for the attorney general. In the past, the deputy attorney general, the associate attorney general, and other senior Justice Department officials had been able to staff their own offices.

Once Gonzales had the final authority, however, another barrier stood in the way: The Office of Legal Counsel believed that an unconditional delegation of authority by Gonzales to his aides would be unconstitutional. Corts so informed Gonzales in a February 24, 2006, memo: "The Office of Legal Counsel (OLC) advises that permitting the Attorney General's delegates to approve [some] appointments … would be inconsistent" with the appointments clause of the Constitution. The "excepting clause" of the Constitution requires the president alone to exercise the appointment power, or his Cabinet officers, who are appointees themselves.

The draft was rewritten to address that concern, and Gonzales on March 1, 2006, signed the final order, which read: "Under the authority of this delegation, any proposed appointments or removals of personnel who are 'inferior officers' within the meaning of [the] Excepting Clause of the Constitution shall be presented to the Attorney General... and each appointment or removal shall be made in the name of the Attorney General."

At the bottom of the delegation order, this note appeared, in all capital letters, referencing the Federal Register: "INTERNAL ORDER-NOT PUBLISHED IN F.R."

A senior Justice Department official, who did not know of Gonzales's delegation of authority until contacted by National Journal, said that it posed a serious threat to the integrity of the criminal-justice system because it gave Sampson, Goodling, and the White House control over the hiring of senior officials in the Justice Department's Criminal Division, which oversees all politically sensitive public corruption cases, at the same time that they held authority to hire and fire U.S. attorneys.

"If you are controlling who is going to be a U.S. attorney and who isn't going to be,... firing them outside the traditional process... and the same people are deciding who are going to be their supervisors back in Washington... there is too much of a potential for mischief, for abuse," the official said.

Even if there is no interference or politicization of public corruption investigations, the same official said, "you are just going to have people questioning every prosecutorial decision, when all of the people in place have been put there for political reasons."

Typically, the assistant attorney general in charge of the Criminal Division has five deputies who oversee political corruption cases and nearly all other federal criminal prosecutions. The assistant attorney general in charge of the Criminal Division is a political appointee of the president and is subject to Senate confirmation. But two of the division's five deputies are not subject to Senate confirmation. Under the order signed on March 1, 2006, their fate was delegated to Sampson and Goodling.

Based on a review of the delegation order, the official said, the Criminal Division chief's principal deputy, his counselor, any of his special assistants, and a score of other aides were also among those who could be fired and replaced by Sampson and Goodling, and then subject to final approval by Gonzales.

"It would be an act of insanity and, frankly, implausible that the attorney general would grant authority to Kyle [Sampson] and Monica Goodling to make these decisions," the official said, "But it would be frightening if they were serving as proxies for the White House. You do not want to allow for the possible politicization of your Criminal Division like that.""

There are several things to note about this. First, and most obvious: the very idea that Goodling and Sampson had this sort of authority is appalling on its face, without getting into the question whether they were operating on behalf of the White House. Kyle Sampson is in his late thirties. He graduated from law school in 1996. Waas describes his legal experience as follows: "Sampson had tried one criminal case while at Justice and had worked as a counsel for Sen. Orrin Hatch, R-Utah, and then for the White House counsel's office before rapidly ascending to become Gonzales's chief of staff."

One case. This is the guy who compiled the list of which US Attorneys to fire. Imagine.

Here's a decent summary of Monica Goodling's legal background, such as it is:

"Goodling's background is curious. Now 33, she graduated from Messiah College, an evangelical Christian school, in 1995. After a year at the American University Washington College of Law, she enrolled at Pat Robertson's Regent University Law School in 1996 - the year it received full accreditation from the American Bar Association. She graduated from Regent in 1999. That November, Goodling went to work for the Republican National Committee as a junior research analyst in the opposition research shop. When her boss, Barbara Comstock, left the RNC to head the Office of Public Affairs in the Ashcroft Justice Department, Goodling went with her.

After spending two years in Public Affairs, Goodling was detailed to the U.S. Attorney's Office for the Eastern District of Virginia for a two-year stint in order to get the "field experience" typically required for the attorney general counsel's job. She served only six months. (The head of EDVA at the time was Paul McNulty, who, having since become a deputy attorney general, also played a role in the firing of the eight U.S. attorneys.)

According to my research, Goodling was the lead attorney on three felony cases while at EDVA. All three ended in plea agreements; none was of particular importance. To give a sense of the magnitude of her work, the highest-level defendant was sentenced to four months in jail; the other two were given three years of supervised release - one of these also received a $100 special assessment. Nevertheless, upon her return to Justice, Goodling assumed the senior counsel and White House liaison posts. So much for the best and the brightest.

Of course, that's not completely fair. There's nothing wrong with attending fourth-tier schools. The value of college is vastly overrated, and lots of smart people don't go to Harvard. But when you look at the rest of Goodling's bio, it is not obvious why she was participating in serious, senior-level decisions about the hiring and firing of U.S. attorneys."

No, it isn't. Leaving aside entirely any questions about the involvement of Karl Rove and the White House political operation, the idea that these two people were given the authority to hire and fire very senior people at the Department of Justice is just grotesque.

***

But, of course, we can't leave out questions about the involvement of Karl Rove and the White House political operation. Monica Goodling was the DoJ liaison to the White House. Waas, whom I've found to be very reliable, quotes his "senior executive branch official familiar with the delegation of authority" as saying that "It was an attempt to make the department more responsive to the political side of the White House and to do it in such a way that people would not know it was going on". And besides, it fits completely with this administration's conduct so far. This is, after all, the administration that made Tim Griffin, Bush's main opposition researcher from the 2004 campaign, US Attorney for Eastern Arkansas. As I wrote about a month ago:

"It's not surprising, at the beginning of a Presidential campaign season, for the Republican party to send its chief opposition researcher -- the guy responsible for digging up dirt on political opponents -- to the very state where Hillary Clinton, one of the frontrunners for the Democratic nomination, spent most of her adult life. But it's completely out of line for them to send their chief opposition researcher to Arkansas as a US Attorney with subpoena power."

(By the way: Griffin is still the US Attorney for Eastern Arkansas. As emptywheel notes at the Next Hurrah, he said he didn't want to submit his name to the Senate, but he never said he was actually planning to resign.)

This is very, very serious. After the power to wage war, the power to arrest, prosecute, and jail people is the most dangerous power the government has, and the one that needs to be protected most completely from abuse. The very idea that criminal prosecution might be used as a political weapon contradicts everything this country stands for: political freedom, the rule of law, the whole ball of wax.

There is nothing the least bit obvious about the rule of law. To the contrary: what could be more obvious, to a person who has just seized political power, than the idea of using it to punish his enemies and reward his friends? The fact that someone, somewhere, had the idea of not doing this, at least as far as the law is concerned, strikes me as astonishing. And the fact that this wasn't an idea that one eccentric ruler had and his successors promptly discarded, but one that was so thoroughly accepted that an entire country came to take it for granted that, broadly speaking, justice was administered fairly, rather than being used as a political weapon, strikes me as downright miraculous. (The phrase "broadly speaking" in the last sentence matters. Obviously, since laws are administered by fallible human beings, not angels, justice will never be administered perfectly. But there's all the difference in the world between trying to administer it fairly, albeit without complete success, and not trying at all.)

That we take the rule of law for granted is an incredibly precious inheritance. This is what this administration is trying to throw away.

***

It's also worth noting that even if this administration had not succeeded in bringing a single unfair prosecution, or giving a single political ally a free pass, politicizing any department, and this one in particular, does immense institutional damage. To get a feel for what this means in practice, read this account of why Bob Kengle decided to resign as Deputy Chief in the Voting Section of the Civil Rights Division of the DoJ in 2005. An excerpt can't begin to give the flavor of the whole piece, which I found heartbreaking, but here's Kengle's summary:

"I spent over twenty years in the Civil Rights Division because it is a unique institution with which I identified not because it was perfect, but because it sought to advance a genuine public good above the political fray. I reached my "breaking point" when I concluded that I no longer could make that happen. I have not previously elaborated on my reasons for leaving the Civil Rights Division, but it seems now to be the right time to do so.

In short, I lost faith in the institution as it had become. This was not the result of just one individual, such as Brad Schlozman, although he certainly did his share and then some. Rather, it was the result of an institutional sabotage after which I concluded that as a supervisor I no longer could protect line attorneys from political appointees, keep the litigation I supervised focused on the law and the facts, ensure that attorneys place civil rights enforcement ahead of partisanship, or pursue cases based solely on merit."

Read it and weep.

Comments

[Guest]

Fortunately, Gonzalez can be shown to have withheld this from Congress, which is something he can be prosected for.

[AndyK]

I think you may even be leaving out the worst part: even if all this is exposed, and everyone agrees that it happened and that it's awful, and the administration is punished for it....the damage has still been done. Some of the appointees have now become career DOJ people, pushing out their betters along the way. No matter what is done, it may take a generation to get things back to where they were six years ago. And even that might not be enough, if these snivelling little Stepford lawyers -- now ensconced or tenured or embedded or whatever the term is -- continue to have input into hiring.

[cleek]

it may take a generation to get things back to where they were six years ago

Mission Accomplished.

now about all those other Federal agencies...

[aimai]

A commenter over at "the left coaster" pointed out that the timeline for this is pretty damning. The secret memo transferred power to the juveniles just a few days before the patriot act was passed--in other words, at a theoretically crucial time in our country's history with historic changes being rammed through, changes that as we now know were used to further degrade our civil liberties. Changes which included the highly controversial paragraph enabling unapppointed and unapproved USA's to stay in position without confirmation hearings.

Its going to be hard to explain this to the american people because its pretty detailed and infra dig but we are going to have to try.
aimai

[RepubAnon]

Shouldn't be too hard to explain how our CEO President's minions hired their buddies and misused their power for political gains rather than the country's good. Melamine munchies, anyone?

[freelunch]

If the hiring process was illegally subverted is there any reason to claim that those hired under the illegal process are protected by civil service law?

[russell]

Read It And Weep

No. Read it and get angry.

Thanks -

[john miller]

Rusell, I don't think I have seen anyone say this to you, but "You're welcome". In both meanings of the term.

[moe99]

So, this is one example of, can we say, 'outsourcing?' That is, giving plausible deniability to those in charge--which was on full display during Gonzo's testimony 2 weeks ago. And it is being repeated even further up the food chain--witness the attempt to hire an Iraq War czar. This is WH playbook material. Make no mistake about it.

[Crust]

To pick up on the first comment, are either this arrangement or withholding it from Congress grounds for impeaching Gonzales?

Not that there aren't plenty of other possible grounds for impeaching AGAG already. E.g. NSA violations of FISA come to mind.