In this Chapter we describe Monica Goodling’s and Kyle Sampson’s duties and responsibilities while working in the Department. We also provide a brief description of the duties and responsibilities of Jan Williams and Susan Richmond, Goodling’s predecessors as Department White House Liaisons. We then describe the functions of several Department offices that were involved in the events we investigated. Finally, we briefly summarize Department policy and federal law applicable to the hiring of career employees.
Goodling graduated from Messiah College in 1995 and received a law degree from the Regent University School of Law in 1999. From 1999 to February 2002, she worked for the Republican National Committee (RNC) where she held the positions of research analyst, senior analyst, and deputy director for research and strategic planning. Among her duties was what she described on her résumé as “a broad range of political research.”
In 2002, Goodling left the RNC to work at the Department, where she held a variety of political positions. From February 2002 to August 2004 she worked in the Office of Public Affairs (OPA) as, successively, Senior Counsel, Deputy Director, and Principal Deputy Director. According to Goodling’s résumé, while at OPA she worked closely with the OAG regarding public communications about the Department’s work, including media events, press releases, speeches, and talking points. In September 2004, Goodling began a 6-month detail as a Special Assistant United States Attorney in the USAO for the Eastern District of Virginia, where she handled criminal felony and misdemeanor cases.
At the conclusion of her detail to the USAO in March 2005, Goodling served in EOUSA as a Schedule C (political appointee) Deputy Director.3 Goodling worked at EOUSA for 9 months until October 2005. According to her résumé, her responsibilities at EOUSA included oversight of and coordination between EOUSA and the USAOs; liaison between the USAOs and Department components; and supervision of various EOUSA legal and administrative staffs handling EOUSA’s legal policy, legislative analysis, legal programs, data analysis, and the unit processing political appointments for U.S. Attorneys. As an EOUSA Deputy Director, Goodling also processed requests by interim U.S. Attorneys to hire AUSAs. These requests from interim U.S. Attorneys, called “waiver” requests, are discussed in detail in Chapter Four.
Goodling was one of two or three EOUSA Deputy Directors (the number varied over time) who reported directly to the Director of EOUSA. When Goodling arrived at EOUSA in March 2005, the Director was Mary Beth Buchanan, who was also serving as the U.S. Attorney for the Western District of Pennsylvania. In June 2005, Buchanan was replaced as EOUSA Director by Michael Battle, the former U.S. Attorney for the Western District of New York.
In October 2005, Goodling moved from EOUSA to the OAG, where she remained until she resigned from the Department in April 2007.4 From October 2005 to April 2006, Goodling was Counsel to the Attorney General. In April 2006, she became the Department’s White House Liaison and Senior Counsel to the Attorney General. Goodling’s major responsibility as White House Liaison was to interview and process applicants for political positions in the Department. In that job, she also interviewed and was involved in the selection of career attorneys who were candidates for temporary details to various Department offices, and candidates for immigration judge and Board of Immigration Appeals positions. In addition, Goodling continued to process waiver requests by interim U.S. Attorneys, although neither of her predecessors as White House Liaison, Susan Richmond and Jan Williams, had done so. Goodling’s direct supervisor during her tenure in the OAG was Chief of Staff Kyle Sampson.
Sampson graduated from Brigham Young University in 1993 and from the University of Chicago Law School in 1996. After a federal appellate court clerkship and 2 years in private practice, Sampson served for 2 years as Counsel to the U.S. Senate Committee on the Judiciary, where, among other things, he worked on nominations of candidates for political positions in the Department of Justice. In 2001, Sampson moved to the White House as Special Assistant to the President and Associate Director for Presidential Personnel, where he handled presidential appointments to the Department of Justice.
Later in 2001 and continuing until 2003, Sampson served as Associate Counsel to the President. During that time Sampson worked on legislative, policy, and environmental matters.
In August 2003, Sampson moved to the Department. From August 2003 to 2005, he served as Counselor to Attorney General Ashcroft. In February 2005, Sampson became Deputy Chief of Staff to the Attorney General, and in September 2005, he became Chief of Staff to Attorney General Gonzales. He remained in that position until his resignation from the Department in March 2007.
Goodling’s immediate predecessors as the Department’s White House Liaison were Susan Richmond and Jan Williams.
Richmond graduated from Palm Beach Atlantic College in 1995. She obtained masters degrees in Public Policy and Business Administration from Regent University in 1998 and 1999. From 1998 to 2000, she worked for Missouri Senator John Ashcroft as a research director and aide to his Chief of Staff.
Richmond accompanied Ashcroft to the Department when he became Attorney General in February 2001. From February 2001 to May 2003, she served as an advisor to the Attorney General and as the Department’s Deputy White House Liaison. In May 2003, she became the Department’s White House Liaison and served in that position until she resigned from the Department in March 2005.
Williams graduated from Brigham Young University in 1997. From 1997 to January 2001, she worked at the Federalist Society, first as the Assistant Lawyers Division Director and then as Senior Deputy Lawyers Division Director. In 2001, she moved to the White House, where she served as a staff assistant and secretary to Kyle Sampson in the Presidential Personnel Office. From November 2001 to March 2005, Williams was a Deputy Associate Director in that office. She joined the Department in March 2005 and served as White House Liaison until she resigned in April 2006. Sampson served as her direct supervisor while at the Department.
In this section we briefly describe the Department components that were most relevant to the allegations we examined in this report. Our description generally covers the time period from early 2004 until March 2007.
Chart 1 identifies the Department’s senior managers at the time of the events discussed in this report.
The Office of the Attorney General is a relatively small office that in fiscal year (FY) 2006 was staffed with 25 employees, 7 of whom were detailed there on temporary duty assignments from other Department components. John Ashcroft served as Attorney General from February 2001 to February 2005. Alberto Gonzales served as Attorney General from February 2005 to September 2007.
David Ayres served as the Chief of Staff to Attorney General Ashcroft from February 2001 to February 2005. Kyle Sampson served first as Deputy Chief of Staff and then as the Chief of Staff to Attorney General Gonzales from February 2005 to March 2007. Susan Richmond, Jan Williams, and Monica Goodling served as the Department’s White House Liaisons from May 2003 to March 2005, March 2005 to April 2006, and April 2006 to April 2007, respectively.
The Office of the Deputy Attorney General advises and assists the Attorney General in formulating and implementing Department policies and programs and provides supervision and direction throughout the Department. In FY 2006, the ODAG was staffed with 35 employees, 14 of whom were detailed there on temporary duty assignments from other Department components. James Comey served as Deputy Attorney General from December 2003 to August 2005. Paul McNulty was appointed to be the Acting Deputy Attorney General in November 2005, and was confirmed as the Deputy Attorney General in March 2006. He resigned from the Department in July 2007.
Chuck Rosenberg served as ODAG Chief of Staff from January 2004 until June 2005. Michael Elston served as Chief of Staff from November 2005 until he resigned from the Department in June 2007.
The Executive Office for U.S. Attorneys serves as the liaison between the 94 U.S. Attorneys’ Offices throughout the country, Department components in Washington, D.C., and other federal agencies. EOUSA is a large organization with more than 500 employees.
According to its website, EOUSA provides USAOs assistance with policy development, direction and oversight, and operational support. EOUSA also provides budget and fiscal assistance and guidance to USAOs. In addition, EOUSA evaluates the performance of USAOs on a periodic basis.
EOUSA also assists the Department with the appointment of U.S. Attorneys and provides general support to USAOs regarding AUSA appointments. Mary Beth Buchanan served as EOUSA director from June 2004 to June 2005. Michael Battle was EOUSA Director from June 2005 until he resigned from the Department in March 2007.
The Executive Office for Immigration Review is the office within the Department responsible for interpreting and administering federal immigration laws by conducting immigration court proceedings and appellate review of such proceedings. At the time of the events discussed in this report, the Director of EOIR was Kevin Rooney and the Deputy Director was Kevin Ohlson.
The Office of Legal Policy (OLP) is responsible for developing and implementing many of the Department’s significant policy initiatives. OLP also handles special projects and serves as a policy advisor to the Attorney General and the Deputy Attorney General. At the time of the events discussed in this report, the Assistant Attorney General (AAG) for OLP was Rachel Brand.
The Office of Public Affairs handles media relations and communications issues for the Department. It also coordinates with public affairs units in other Department components.
For purposes of this investigation, we distinguish between two broad categories of Department attorneys: career and political.
Most attorney positions in the Department are designated by the Office of Personnel Management as Schedule A positions. 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), and are considered career positions. The Department has several types of Schedule A attorney positions, including AUSAs, trial attorneys in litigating divisions, other types of attorneys in a variety of Department components, and immigration judges. In addition, the Department employs attorneys in a variety of career Senior Executive Service (SES) positions. Among the members of the career SES at the Department are the chair and one of the vice chairs of the Board of Immigration Appeals, most Deputy Directors at EOUSA, and the Director of EOIR.
In addition, the Department has several types of political attorney positions, including presidential appointees requiring Senate approval (such as U.S. Attorneys and Assistant Attorneys General), non-career SES attorneys, and Schedule C attorneys. Schedule C positions are “positions which are policy-determining or which involve a close and confidential working relationship with the head of an agency or other key appointed officials.” 5 C.F.R. § 213.3301(a). Schedule C positions are commonly referred to as political appointments.
For several reasons, the Department has traditionally used some career attorneys to help staff, on a temporary basis, the Department’s leadership offices, the OAG and the ODAG, as well as other Department offices such as OLP and EOUSA.5 These assignments are referred to as “details,” and individuals who obtain such positions are commonly referred to as “detailees.” As noted above, a significant portion of the OAG and ODAG staff are detailees from other Department components. When career attorneys are detailed to offices such as the OAG, ODAG, or OLP, they may have significant policy-related responsibilities usually associated with Schedule C attorneys. We discuss this issue more fully below.
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 Department’s policy on non-discrimination is contained in the Code of Federal Regulations, Section 42.1(a) of 28 C.F.R. Part 42, Subpart A, which states:
It is the policy of the Department of Justice to seek to eliminate discrimination on the basis of race, color, religion, sex, sexual orientation, national origin, marital status, political affiliation, age, or physical or mental handicap in employment within the Department and to assure equal employment opportunity for all employees and applicants for employment (emphasis added).6
While the regulation does not define “political affiliation,” courts have considered “political affiliation” to include “commonality of political purpose, partisan activity, and political support.” See, e.g., Curinga v. City of Clairton, 357 F.3d 305, 311 (3rd Cir. 2004).
The Office of Attorney Recruitment and Management (OARM), the Department component with primary responsibility for overseeing career attorney hiring, states on its website:
The U.S. Department of Justice is an Equal Opportunity/ Reasonable Accommodation Employer. Except where otherwise provided by law, there will be no discrimination based on color, race, religion, national origin, politics, marital status, disability, age, sex, sexual orientation, status as a parent, membership or nonmembership in an employee organization, or personal favoritism (emphasis added).7
In addition to Department policies, the Civil Service Reform Act (CSRA) prohibits the Department from discriminating in hiring for career positions based on political affiliation. For example, the CSRA states that federal agencies must adopt hiring practices for career employees in which:
selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity.
5 U.S.C. § 2301(b)(1).
Moreover, the CRSA sets forth a series of merit system principles by which federal agencies are to manage personnel decisions. One principle directly addresses employment discrimination:
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.
5 U.S.C. § 2301(b)(2) (emphasis added).
CRSA Section 2302 sets forth a list of “prohibited personnel practices” and prohibits “any employee who has authority to take, direct others to take, recommend, or approve any personnel action” from engaging in those enumerated practices.8 2302(b). The CSRA defines a “personnel action” to include “an appointment” and “a detail.” 9 2302(a)(2)(A) (i) and (iv).
Section 2302(b) applies to “an employee in, or applicant for, a covered position.” 2302(a)(2)(A). A “covered position” includes career attorneys:
‘covered position’ means, with respect to any personnel action, any position in the competitive service, a career appointee position in the Senior Executive Service, or a position in the excepted service, but does not include any position which is, prior to the personnel action... (i) excepted from the competitive service because of its confidential, policy-determining, policy-making, or policy-advocating character....
2302(a)(2)(B). Department Schedule A career attorneys are included within the scope of 2302(b) because Schedule A positions are defined as “not of a confidential or policy-determining character.” 5 C.F.R. § 213.3102(d).
The use of political affiliation as a criterion for considering applicants for career attorney appointments or details may violate several prohibited personnel practices. Section 2302(b)(1)(E) prohibits “discriminat[ing] for or against any employee or applicant for employment... on the basis of... political affiliation, as prohibited under any law, rule, or regulation.”10 Section 2302(b)(12) of the CSRA also makes it unlawful to “take or fail to take any other personnel action if the taking or failure to take such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in section 2301 of this title.” In addition, as noted above, one merit system principle is that “all employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation....” 5 U.S.C. 2301(b)(2).
These policies and laws do not define “political affiliation.” Nonetheless, selecting candidates for career positions based on the activities or organizations with which they are affiliated can be used as a proxy for political affiliation and thus can violate CSRA’s prohibition. Using ideological affiliation can also create the appearance that candidates are being discriminated against based on political affiliation.
As a result, Department policy and the CSRA prohibit using political affiliations and may also prohibit using certain ideological affiliations in assessing candidates for career attorney positions.
The political Schedule C Deputy Director position for Goodling was a new position within EOUSA. Contemporaneous e-mails of senior managers within the OAG and ODAG indicate that OAG personnel approved Goodling’s appointment as a political Deputy Director.
Political appointees can be detailed to temporary career positions as well. For example, as noted above Goodling was detailed to the USAO for the Eastern District of Virginia for 6 months as a Special AUSA.
While the language of 42.1(a) is aspirational, it is clear that the regulation prohibits the conduct it describes. See 28 C.F.R. § 42.1(b) (“No person shall be subject to retaliation for opposing any practice prohibited by the above policy [42.1(a)]”); Attorney General Order 2037-46, adopting the current version of 42.1(a), stating that it amended 42.1 “to include sexual orientation as a prohibited basis for discrimination” and characterized 42.1(b) as prohibiting “retaliation for opposing a prohibited practice.” 61 Fed. Reg. 34,729, 34,729 (July 3, 1996); Action Memorandum for the Attorney General from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Final Rule Amending the Policy Statement Regarding Equal Employment Opportunity Within the Department of Justice (June 18, 1996) (stating that the proposed order would “codify the Department’s policy prohibiting discrimination on the basis of sexual orientation”).
As set forth more fully below, we investigated allegations that Goodling and Richmond considered political or ideological affiliations when assessing career attorney candidates for detail positions in Department offices.
However, the use of political affiliation violates 2302(b)(1)(E) only when it also violates some other “law, rule or regulation.” We asked the Department’s Office of Legal Counsel (OLC) whether the policy on non-discrimination contained in 28 C.F.R. § 42.1 qualifies as a predicate for a violation of 2302(b)(1)(E). OLC responded that “[o]ur informal conclusion is that 28 C.F.R. § 42.1 (2007) and the First Amendment constitute ‘law[s], rule[s] or regulation[s]’ that prohibit considering political affiliation in hiring career attorneys to Excepted Service Schedule A positions at DOJ.” Career attorneys in the Department are Excepted Service Schedule A positions.