In this chapter of the report we discuss our investigation of allegations that Goodling used political or ideological affiliations to screen waiver requests by interim U.S. Attorneys to hire career AUSAs, and to screen candidates for other permanent career positions within the Department.
On March 29, 2007, Chuck Rosenberg, Acting Chief of Staff to the Attorney General, forwarded to us a complaint that Goodling had denied an interim U.S. Attorney’s request for a waiver to hire an AUSA because she believed the candidate was too “liberal.” In addition, Goodling’s written statement to Congress acknowledged that “[i]n a very small number of [waiver] cases, I believe that my decisions may have been influenced in part based on political considerations.”
Pursuant to Department policy, interim or acting U.S. Attorneys – that is, U.S. Attorneys who have not been appointed by the President and confirmed by the Senate – do not have the authority to hire new AUSAs without permission from the Department.20 The same policy applies to U.S. Attorneys who have announced their intent to leave office. This policy is intended to allow permanent, presidentially appointed U.S. Attorneys the ability to hire staff for their offices, rather than having interim or departing U.S. Attorneys make the hiring decisions.
However, in some circumstances an interim or outgoing U.S. Attorney needs to hire new attorneys, such as when there is a lengthy delay in the appointment or confirmation process and the office has a large number of vacancies. In such cases, the interim or outgoing U.S. Attorney can request from EOUSA a waiver from the policy prohibiting them from hiring an AUSA.
EOUSA does not have a formal process for submitting waiver requests. Typically, interim U.S. Attorneys or their staff send EOUSA an e-mail requesting the waiver, with details about the waiver request such as the number of hires requested. During the period encompassed by our review, when EOUSA received waiver requests they were usually forwarded to EOUSA’s administrative staff for processing and analysis. The administrative staff would determine the number of vacancies at the USAO, the current financial status of the office, and whether the office could afford the hire based on its current budget. Once EOUSA administrative personnel performed this analysis, an EOUSA senior manager would decide whether to approve or reject the request.
Michael Battle, who was EOUSA Director for most of Goodling’s tenure while she was in both EOUSA and the OAG, told us he did not become involved in decisions on waiver requests. He said he delegated responsibility for the waiver process to his Deputy Directors, one of whom was Goodling from March to November 2005.
We determined that at some point during her EOUSA tenure, Goodling began to decide some waiver requests for EOUSA. For example, on October 7, 2005, Goodling sent Battle an e-mail asking about the status of a waiver request, and telling him that “[n]ormally waiver requests from Actings/Interims come to Steve [Parent] and I and we both vet them from our various sides.”
We determined that after Goodling moved to the OAG to become the Department’s White House Liaison, she continued to decide EOUSA waiver requests. Battle told us that he did not know that Goodling continued to do this. Neither Susan Richmond nor Jan Williams, Goodling’s predecessors as White House Liaison, were involved in deciding such requests for EOUSA while serving in the OAG.
In her written statement to Congress in May 2007, Goodling discussed her role in processing waiver requests while at EOUSA and why she continued that practice when she moved to the OAG:
I reviewed a number of... waiver requests during my tenure in EOUSA and the Attorney General’s office. While in EOUSA, I referred significant waiver requests to [OAG Chief of Staff] Sampson. When I moved to the Office of the Attorney General, my position in EOUSA was left vacant, so I continued to oversee these waiver requests.
We believe that several of Goodling’s assertions in this written statement were inaccurate.
Sampson stated that when Goodling was in EOUSA he did not recall that he discussed specific waiver request candidates with her. We reviewed all of the e-mails between Goodling and Sampson when she worked in EOUSA, and found no evidence that she referred any specific waiver requests to Sampson. Sampson told us that when Goodling was in EOUSA, in connection with waiver requests she would ask him about the status of U.S. Attorney presidential appointments and whether they were relatively imminent. Sampson stated that if the appointment was not imminent, he would suggest that the waiver be granted if the hire was necessary, but he did not discuss specific candidates with her.
Moreover, Goodling’s assertion that she continued to review waiver requests while in the OAG because her EOUSA position was vacant is undermined by evidence that she continued to require EOUSA to send her waiver requests even after her position as the EOUSA Schedule C political Deputy Director was filled by John Nowacki in August 2006.21 On September 29, 2006, shortly after Nowacki assumed his duties in EOUSA, he forwarded Goodling a waiver request from the District of Alaska and commented, “I assume you want to see this sort of thing – if not, let me know... I intend to recommend approval.” Goodling replied, “When you get a waiver request, the approval comes from me – so I assume your last sentence means you are recommending that I approve... ?”
We found numerous instances in which Goodling and Nowacki asked to review the résumés of AUSA candidates who were the subject of waiver requests. EOUSA Associate Counsel Natalie Voris told us that Goodling usually asked to see the résumés of the potential hires for the waiver requests. Voris stated that the purpose of reviewing résumés was to see if the candidates were minimally qualified, and to see if there was personal favoritism occurring by the USAO requesting the waiver. However, the requesting USAO had already assessed and approved of the candidates’ qualifications, and it is not clear how EOUSA would have been able to determine whether a candidate was selected based on personal favoritism.
To determine the extent to which Goodling improperly considered political or ideological affiliations in making her waiver request decisions, we reviewed EOUSA documents related to waiver requests during Goodling’s tenure at EOUSA and the OAG, including information about Goodling’s approval or disapproval of such requests. In addition, we reviewed Goodling’s e-mails during the time she was in EOUSA and the OAG for documents related to her assessment of waiver requests.
We also sent a written request for information and documents related to waiver requests to all 30 Department attorneys who had served as an interim U.S. Attorney during Goodling’s tenure at EOUSA and the OAG. We asked them for information about whether they had made any waiver requests, and if so whether they had any direct or indirect evidence that Goodling used improper or illegal criteria to assess such requests. In our written request to the interim U.S. Attorneys, we cited political affiliation and religion as examples of improper or illegal hiring criteria. In addition, we interviewed current and former EOUSA senior staff and an interim U.S. Attorney who had direct knowledge of Goodling’s screening of waiver requests.
Based on our investigation, we determined that both Goodling and Nowacki considered political or ideological affiliations to assess AUSA candidates who were the subject of waiver requests on at least three occasions.
Twenty of the 30 interim U.S. Attorneys we contacted stated that they had submitted waiver requests during Goodling’s tenure in EOUSA and the OAG. Two of the 30 interim U.S. Attorneys, Jeffery Taylor and Chuck Rosenberg, said they were aware of evidence that Goodling had used political considerations in assessing a waiver request. Both Taylor and Rosenberg referred to the same incident involving an AUSA candidate in the District of Columbia.
In the next section, we discuss the waiver request identified by Taylor and Rosenberg, as well as two other instances where the evidence indicated that Goodling or Nowacki used political or ideological affiliations to assess AUSA candidates who were the subject of waiver requests.
Aside from these three incidents, we found no other evidence of the use of political or ideological affiliations to assess waiver candidates. With one exception noted below, we found no documents or e-mails evidencing Goodling’s use of political or ideological affiliations to screen waiver requests. The documents produced by interim U.S. Attorneys, EOUSA, and Goodling’s e-mail archives reflected Goodling’s consideration of factors such as the requesting office’s budget situation and the existing number of staff vacancies to assess waiver requests.
Unlike the process she used for assessing candidates for political positions, temporary details, or IJ positions, we found no evidence that Goodling maintained folders containing résumés and other supporting materials for the subjects of waiver requests. This was not surprising because she did not interview these candidates. However, because there were no folders on these candidates (which were the source of much of our information about how Goodling processed other candidates), we do not have evidence whether she conducted Internet research or called AUSA candidate references regarding waiver requests.
In September 2006, Jeffery Taylor became the interim U.S. Attorney for the District of Columbia.22
Sometime in November 2006, Taylor asked EOUSA for a waiver to hire an AUSA for the District of Columbia USAO. Taylor had selected a candidate for the slot after interviewing several applicants. Taylor’s waiver request was oral, and we found no documents reflecting his waiver request or the exact date of the request.
After making the request, Taylor sent EOUSA the résumé of the candidate he wanted to hire. According to the résumé, the candidate received his undergraduate degree from Cornell University; graduated from Howard University School of Law where he was Director of the Civil Rights Symposium; interned in the Department of Justice’s Civil Rights Division; and worked for 7 years in the Civil Rights Office in the Office of the General Counsel for the Environmental Protection Agency.
Taylor told us that after failing to receive a response to his request, he called EOUSA and was informed that Goodling, who was then the Department’s White House Liaison, had final authority on waiver requests. Taylor therefore called Goodling to discuss the waiver.
According to Taylor, Goodling told him that the candidate gave her pause because judging from his résumé he appeared to be a “liberal Democrat.” Taylor responded by stating that such considerations were not relevant in career AUSA hiring decisions. Taylor said he also told Goodling that AUSAs’ political affiliations are not relevant to how they perform, and that U.S. Attorneys will lose credibility if they are perceived as making politicized hiring decisions. Taylor said that Goodling also mentioned that because Republicans had lost control of Congress after the November 2006 elections, she expected that Republican congressional staff might apply for AUSA positions in Washington. Goodling told Taylor she would get back to him regarding his request.
Taylor said that when Goodling failed to get back to him, he called Kyle Sampson, Chief of Staff to the Attorney General, and asked him to intervene with Goodling.23
Sampson told us that Taylor called him to complain that Goodling was slowing down the process of his getting a waiver from EOUSA to hire AUSAs. Sampson said he told Goodling that Taylor should not be subject to the waiver process because Taylor was going to be nominated by the President for the permanent U.S. Attorney position. Sampson said that Goodling then agreed with the waiver request. Sampson told us he did not recall that either Taylor or Goodling had said that the AUSA candidate at issue was a Democrat. Sampson also said he did not think he knew at the time that Goodling had a problem with the candidate’s perceived political party affiliation.
We found a November 21, 2006 e-mail from Sampson to Goodling stating that Taylor had been trying to reach Goodling and that Taylor wanted to hire several AUSAs. Sampson stated in the e-mail that because Taylor was going to be the nominee for U.S. Attorney, Sampson was inclined to let Taylor hire at will.
On November 30, 2006, Goodling sent an e-mail to EOUSA staff stating that Taylor could hire AUSAs at will if the U.S. Attorney’s Office had sufficient funds. As a result, Taylor hired the candidate.
During Goodling’s congressional testimony, she was asked about Taylor’s waiver request. Goodling testified that she regretted that she had made a “snap judgment based on the totality of things [she] saw on [the candidate’s] resume.”
On December 19, 2006, Bradley Schlozman, who at the time was the interim U.S. Attorney for the Western District of Missouri, sent an e-mail to EOUSA Director Battle and Nowacki to request a waiver to hire an AUSA.24 Nowacki asked to see the résumés of potential candidates for the position. On December 22, Schlozman sent Nowacki an e-mail that attached the résumés of three candidates. In his e-mail, Schlozman described the three candidates as “rock-solid Americans” who would be a “hugely positive legacy for this Administration.” Schlozman described each candidate in terms of their conservative political credentials. He wrote that the first applicant’s “involvement with the Bush/Cheney campaign speaks for itself.” Regarding the second candidate, Schlozman noted that he met the applicant during the applicant’s clerkship with a “43-appointee” (referring to a federal appellate judge appointed by President Bush). Schlozman described the third candidate as “a rock star talent in addition to being hard core (in the most positive sense of that phrase) on the issues[.]” Schlozman also described the third applicant as “an obvious conservative of incredible intellect.”25
That same day, Nowacki forwarded the three résumés by e-mail to Goodling in the OAG. Later that day, Goodling sent an e-mail to Nowacki saying, “Tell Brad he can hire one more good American.” Shortly thereafter, Nowacki sent an e-mail to Schlozman saying, “You can go ahead and hire one more good American.” Nowacki acknowledged to us that he understood the phrase “good American” to refer to someone with Republican credentials.
Nowacki said he thought that Schlozman’s use of political credentials to describe AUSA candidates was an attempt to get his waiver request approved by Goodling.
In answers to congressional questions, Schlozman addressed his use of political affiliations in advocating for the waiver. He wrote:
As I noted at the hearing, I had heard rumors that Ms. Goodling considered political affiliation in approving hiring decisions for career positions. I also knew that, although the decision to authorize the hiring of AUSAs by interim U.S. Attorneys was technically vested in EOUSA, Ms. Goodling exercised great control in this area. Knowing this, and in order to maximize the chances of obtaining authority to hire an additional AUSA, I recall once noting the likely political leanings of several applicants in response to a query from EOUSA about the candidates being considered for the position. However, none of the individuals I referenced was hired, nor do I believe they were even interviewed. Indeed, I adopted an apolitical hiring process in which I completely turned over the process (i.e., selecting candidates to be interviewed, interviewing candidates, and recommending a candidate to be hired) to a hiring panel consisting of three veteran career prosecutors in my office – the First Assistant U.S. Attorney, the Senior Litigation Counsel, and a Supervisory [AUSA].
We confirmed that none of the three applicants was hired by the Missouri USAO. Career officials in the USAO made the decisions on who to hire, and they did not select any of these three applicants.
John McKay, the former U.S. Attorney for the Western District of Washington, announced his resignation in late 2006.26 Before McKay resigned, he made offers to hire four AUSAs for his office. Pursuant to Department policy, EOUSA honors offers made to AUSA candidates by U.S. Attorneys who are leaving office if the offers were made prior to their resignation announcement. After McKay’s departure, his USAO sought EOUSA’s permission to hire the four AUSA candidates. EOUSA eventually agreed. However, before EOUSA granted approval, one of the four AUSA candidates withdrew his name from consideration.
On March 1, 2007, interim U.S. Attorney Jeffrey Sullivan, who had temporarily replaced McKay, sent an e-mail to EOUSA Director Battle asking that the USAO be allowed to substitute another AUSA candidate for the one who had withdrawn. Sullivan attached the replacement candidate’s résumé to his e-mail, and copied the e-mail to his First Assistant U.S. Attorney (FAUSA) Mark Bartlett and to EOUSA Deputy Director Nowacki.
Nowacki sent Goodling an e-mail on March 1 about this waiver request. In the e-mail, Nowacki referenced their “recent conversation” about the candidate and forwarded to Goodling information about the Western District of Washington USAO’s financial situation.
Nowacki told us he did not recall speaking with Goodling about the candidate, and we found no other information regarding the substance of their conversation.
On March 6, FAUSA Bartlett sent an e-mail to Nowacki again requesting permission to hire the replacement candidate. Bartlett then spoke to Nowacki, who requested another copy of the candidate’s résumé, which Bartlett attached to an e-mail to Nowacki on March 7.
The candidate’s résumé did not directly reference any political or ideological affiliation. However, her résumé noted that she clerked for Eighth Circuit Court of Appeals Judge Diana Murphy, who had been appointed by President Clinton.
Bartlett stated that after his March 6 e-mail to Nowacki, he frequently telephoned Nowacki asking for a decision about the candidate. Bartlett told us that he had been aware of allegations that politics had played a role in the selection of AUSAs, but did not recall the source of those allegations. On March 14, Bartlett said he left Nowacki a strongly worded voice mail in which he accused Nowacki of using a political litmus test to assess AUSA candidates. Bartlett said that in his voice mail he also stated that he would not accept a decision based on politics and would appeal any such decision within the Department. Bartlett said that within 10 minutes of leaving this voice mail he received an e-mail from Nowacki approving the candidate’s hire.
We interviewed Nowacki twice about this particular waiver candidate. In his first interview, Nowacki stated that he initially had recommended against the waiver request because of budgetary reasons. Nowacki also said he did not recall discussing the candidate with Goodling, even after we showed him his e-mail to her referencing their “recent conversation” about the candidate. Nowacki said that after receiving Bartlett’s voice mail, he probably revisited the budgetary issue, and then recommended that the waiver be granted because of new funds the USAO had received. Nowacki denied using political considerations to assess the waiver request and said he probably revisited the issue to try to stop Bartlett from calling so often. Nowacki also stated that he did not recall that he had quickly notified the district of EOUSA’s decision to approve the waiver request after receiving Bartlett’s voice mail. Nowacki did not mention any role played by former ODAG Chief of Staff Michael Elston in the waiver decision.
We interviewed Elston after our first interview of Nowacki. Elston told us that after Goodling resigned from the Department, Nowacki called him regarding a waiver request for an AUSA candidate whose name he did not recall.27 Elston said that Nowacki told him that he usually consulted with Goodling about waiver requests, that he had a résumé from an AUSA candidate for the Western District of Washington, and that “[the résumé] looks okay, although she clerked for a liberal judge.” According to Elston, Nowacki told him that the judge was Diana Murphy from the Eighth Circuit Court of Appeals. Elston told us he knew Judge Murphy well and thought highly of her. Elston said he told Nowacki that his criteria were not appropriate and that he did not want Nowacki to call him again regarding these kinds of issues.
Elston said he believed that although Nowacki was not making a formal recommendation to him, Nowacki thought that the candidate was acceptable despite her clerkship for Judge Murphy. Elston said that he also told Nowacki that AUSA waiver requests should be decided by EOUSA based on traditional, not political, criteria, such as the USAO’s financial status.
After Elston’s interview, we re-interviewed Nowacki, who described his conversation with Elston differently. Like Elston, Nowacki said that after Goodling left the Department he called Elston about a waiver request and probably referred to the candidate’s résumé. Nowacki said that Elston told him that waiver decisions should be made in EOUSA and ended the conversation. Nowacki denied that he had commented to Elston that the candidate worked for “a liberal judge” and that Elston had told him that such comments were not appropriate.
However, we found Elston’s version of the conversation to be more credible for several reasons. First, Elston remembered the conversation clearly. Elston also provided the information without us asking about the specific incident, and his recollection corresponded to the facts of the incident.
In addition, as we discuss below in Chapter Seven, Nowacki admitted in another context to providing inaccurate information to senior Department officials regarding Goodling’s use of politics to screen candidates for details to EOUSA.
In sum, we credited Elston’s testimony and concluded that Nowacki considered political or ideological affiliation – the candidate’s clerkship for a judge appointed by a Democrat – when initially assessing the waiver request. However, we also note that, after the conversation with Elston, Nowacki approved the waiver.
On July 20, 2007, then Attorney General Gonzales announced to the Department a series of reforms prompted by allegations regarding the politicization of hiring within the Department. One of those reforms involved waiver requests:
I directed the Executive Office of U.S. Attorneys to reaffirm DOJ policy applicable to the vetting process for the hiring of AUSAs by interim or Acting U.S. Attorneys. In conjunction with this, I have instructed EOUSA to ensure that this vetting process remains within EOUSA and not with political appointees in the senior management offices.
Former EOUSA Acting Director Steven Parent, who served as Acting Director after Battle left EOUSA, told us that he disagreed with the practice of EOUSA staff reviewing AUSA candidate résumés in connection with waiver requests. The current EOUSA Director, Kenneth Melson, agreed with this position and has discontinued EOUSA’s practice of reviewing résumés of AUSA waiver candidates. Melson told us that “if the practice of reviewing résumés was continued... there could be a perception created that EOUSA was applying some sort of political litmus test to the candidates that was not relevant to their qualifications to be an AUSA.” As a result, EOUSA no longer reviews the résumés of candidates when deciding waiver requests. Rather, it assesses those requests based on the budgetary status of the USAO, whether the President has nominated a permanent U.S. Attorney, and the status of any such nomination.
Based on our investigation, we concluded that Goodling and Nowacki improperly used political or ideological affiliations when assessing waiver requests from interim U.S. Attorneys in at least three cases, which violated Department policy and federal law, and also constituted misconduct.
The most troubling case involved a request from Washington, D.C. interim U.S. Attorney Taylor. Goodling did not initially approve the waiver request. When Taylor called Goodling about the pending request, she told him that the candidate gave her pause because, judging from his résumé, he appeared to be a “liberal Democrat.” Goodling also mentioned that because Republicans had lost control of Congress after the November 2006 elections, she expected that Republican congressional staff might apply to the USAO in Washington. Taylor rightfully responded that these were impermissible considerations and that U.S. Attorneys will lose credibility if they are perceived to make politicized hiring decisions.
Yet, even after this discussion, Goodling did not initially approve the waiver request. Only after Taylor complained to OAG Chief of Staff Sampson, who directed Goodling to approve the request, did Goodling send an e-mail approving the waiver.
In the second case, the interim U.S. Attorney in Missouri, Bradley Schlozman, requested a waiver to hire an AUSA. He provided Nowacki with the résumés of three candidates for the position, calling them “rock-solid Americans” who would be a “hugely positive legacy for this Administration.” Schlozman promoted the three candidates in terms of their conservative political credentials. Goodling and Nowacki approved Schlozman’s waiver request and told him he could hire “one more good American.” While none of these three candidates was eventually hired, Schlozman explained his description of the candidates’ political affiliations as an attempt to maximize his chances of having Goodling approve the waiver request.
In the third case, Nowacki approved a waiver request from the Western District of Washington. However, according to former ODAG Chief of Staff Elston, when Nowacki contacted him for approval of the request, Nowacki stated that the candidate’s “[résumé] looks okay, although she clerked for a liberal judge.” Nowacki denied to us that he made such a comment. However, as discussed above, we found Elston’s version of the conversation to be more credible.
We did not find evidence that Goodling considered political or ideological affiliations in other waiver requests from interim U.S. Attorneys. As noted above, we surveyed 30 interim U.S. Attorneys, most of whom were career Department prosecutors. Twenty of the 30 stated that they had made waiver requests. Aside from the incident concerning U.S. Attorney Jeffery Taylor, none said they had any indication or evidence that Goodling used political or ideological affiliations in deciding their waiver requests.
We were concerned, however, that in deciding waiver requests from interim U.S. Attorneys, both Goodling and Nowacki reviewed résumés of AUSA candidates – candidates who had already been interviewed and screened by the USAOs. According to longstanding Department practice, the waiver requests should have been made based on budgetary considerations, information concerning whether the President had nominated a permanent U.S. Attorney, and the status of any such nomination, not Goodling’s or Nowacki’s assessment of the qualifications of the candidate. The Department’s current practice, which was changed after Goodling left the Department, places the decision in EOUSA, which now does not review résumés when deciding on waiver requests. We believe that the changes in the Department’s practices for considering waiver requests are important reforms that will help ensure that the political and ideological affiliations of AUSA candidates are not considered in future waiver decisions.
In the course of our investigation we also found evidence that Goodling considered political or ideological affiliations in recommending candidates for other kinds of career attorney positions in the Department.
As the Department’s White House Liaison, Goodling received résumés and interviewed candidates for a variety of political positions. Sometimes, however, candidates for political positions also expressed an interest in being considered for career positions within the Department. In these cases, we found evidence that Goodling used her position in the OAG to promote these candidates for career positions.
As we described above, the use of political affiliation to assess candidates for career positions violates federal law. The law prohibits, among other things, persons with “authority” from “recommend[ing]” any “personnel action” on the basis of political affiliation.28 5 U.S.C. Section 2302(b). We discuss below several examples of Goodling recommending candidates for career AUSA positions because of their political or ideological affiliations, which she noted on their applications.
On December 5, 2006, Goodling received a résumé from a friend which indicated that a candidate who was interested in working in the Department was employed by the Federalist Society. In a December 5, 2006, e-mail responding to the person who had forwarded the résumé to her, Goodling identified several career positions in the Department for which the candidate might be considered: “DC USAO is hiring and Civil Rights needs a really young, bright lawyer.... OLC is hiring.... I’ll send her resume over as they generally hire through the career process.”
On December 5, Goodling forwarded the candidate’s résumé to Steven Bradbury in OLC. Goodling commented, “Am attaching a resume for a young, conservative female lawyer. Perhaps she is someone you might consider for one of your attorney-advisor slots.... I’ll likely have her in to chat about political opportunities, but let me know if you’d be interested in her for OLC.” Attorney-advisor positions in OLC are career, not political, positions.
Goodling interviewed this candidate on December 18, 2006. Prior to the interview, the candidate completed a Non-Career PPO form in which she indicated that she was a Republican.
The candidate told us that during the interview Goodling mentioned that there were positions open in the ODAG and in the Criminal Division. According to the candidate, Goodling asked questions about the candidate’s voting history, whether she voted for the President, whether she had worked on a political campaign, and what kind of conservative she was. Goodling also mentioned to the candidate that the USAOs in Florida, Minnesota, Colorado, and the Western District of Washington might be hiring (all of these positions would have been career AUSA positions).
The handwritten notes Goodling took during this interview contained the following phrases: “pro-God in public life,” and “pro marriage, anti-civil union.” The candidate told us she had no specific recollection of making such statements during her interview with Goodling, and could not recall whether Goodling had solicited her views on religion in public life.
Soon after interviewing with Goodling, the candidate was interviewed by senior staff in the ODAG and Criminal Division for political positions. Goodling also called the candidate to ask if she was interested in being hired as an AUSA in the District of Columbia, followed by an immediate detail to the ODAG. The candidate said she was interested in such an arrangement, so Goodling forwarded her résumé to Jeffery Taylor, the interim U.S. Attorney for the District of Columbia.
Taylor interviewed the candidate on January 19, 2007. In a departure from the office’s usual hiring procedures, which consisted of interviews with multiple USAO officials and other assessment measures, Taylor was the only person at the USAO to interview the candidate.29 During the interview, the candidate and Taylor discussed her possible detail to the ODAG.
On January 23, 2007, Goodling sent Taylor an e-mail asking that he contact the candidate before she accepted another employment offer. The candidate thereafter received and accepted offers from both the ODAG and the Washington, D.C. USAO. She was hired as an AUSA in the USAO and then immediately detailed to the ODAG.30 During her tenure in the ODAG, she applied for and received a career AUSA position in a different USAO.
In this case, we concluded that Goodling used political or ideological affiliations when recommending a candidate for a career position as an AUSA.
In June 2006, Matthew Friedrich, then Chief of Staff to the Criminal Division Assistant Attorney General, sent a résumé to Goodling of a former AUSA who had worked on the Enron task force. Prior to his interview with Goodling, the candidate was given a Non-Career PPO form to complete.31 In the PPO form, the candidate said he was a Republican, had made financial contributions to the Bush/Cheney campaigns, and had been a Republican office holder in contested elections.
Goodling asked the newly confirmed U.S. Attorney for Colorado to consider the candidate for the First Assistant U.S. Attorney position, which is a career position. She stated in an e-mail that the U.S. Attorney “really needs someone to go into the office with him that is on the team, has statute [sic], fed pros experience, and white collar trial experience.... [the candidate] meets all the specs.... (emphasis added).” Based on the results of our investigation, and of the other joint investigations we have conducted, we concluded that the phrase “on the team” referred to politically conservative individuals.
On August 23, 2006, the U.S. Attorney announced that he had selected the candidate as his FAUSA. On that date, Goodling sent an e-mail to Kyle Sampson and Michael Elston forwarding the announcement. In the e-mail, Goodling commented that she “had interviewed [the candidate] and recommended him....”
We concluded that Goodling solicited political information from, and then described in ideological terms, a candidate whom she recommended for a career position.
We also investigated allegations that Goodling discriminated based on political or ideological affiliations against detailees in EOUSA who were candidates for an EOUSA Deputy Director career position.
In August 2004, EOUSA published a vacancy announcement seeking candidates for a permanent career SES Deputy Director. An EOUSA Deputy Director, on detail from her position as an AUSA from the District of Columbia, applied for the position. According to both then-EOUSA Director Mary Beth Buchanan and the AUSA, Buchanan told the AUSA that she had been selected for the position.32 In a December 23, 2004, e-mail, Buchanan wrote to the AUSA: “You can tell [ODAG Chief of Staff Chuck Rosenberg] that I told you I was recommending that you be hired for the Job. I am the selecting official, but I believe that your selection must be approved by the SES board.”33
However, the AUSA was never appointed to the career SES Deputy Director position. The AUSA told us her selection was put on hold during the transition between Attorney General Ashcroft and Attorney General Gonzales.
After Gonzales became the Attorney General in February 2005, the AUSA remained in her detailee position as Deputy Director, and the career SES position remained unfilled. Goodling was appointed in March 2005 by the OAG as the political Deputy Director in EOUSA, and Buchanan continued to serve as Director of EOUSA until June 2005, when she returned to the Western District of Pennsylvania USAO as the full-time U.S. Attorney.
Buchanan told us that the AUSA did not receive the career SES Deputy Director position by the time Buchanan had decided to leave EOUSA and return full time to the USAO. According to Buchanan, then White House Liaison Susan Richmond told her not to select the AUSA because a new EOUSA Director should have the opportunity to select his or her deputies. While Buchanan said she informed the AUSA of Richmond’s decision, the AUSA told us that she did not recall Buchanan ever telling her this information.
Richmond recalled these events differently from Buchanan. Richmond said she recalled discussing the possibility of the AUSA becoming the career SES Deputy Director with Buchanan, but she did not recall that Buchanan ever wanted to select her for that position. Richmond said she recalled having the discussion with Buchanan about the AUSA in the context of identifying potential candidates that could be suggested to Buchanan’s successor as EOUSA Director.
According to the AUSA, shortly after Battle became EOUSA Director in June 2005, he told her she would not be offered the career SES Deputy Director position and that she had to leave EOUSA.34 The AUSA also said that Battle told her that she had to move out of her current office to an office down the hall, and she could no longer review memoranda regarding substantive issues or attend EOUSA meetings. She said that when she asked Battle about these restrictions, he told her that Goodling, who came to EOUSA in March 2005, had a problem with her and could not work with her. The AUSA said that when she pressed Battle for the reasons why she had to leave, Battle told her that there was a problem because she was a Democrat and therefore Goodling could not trust her.
The AUSA said that Battle also told her that he knew she was a very good trial attorney and so should be happy to return to the USAO. She said she responded to Battle that she wanted to stay at EOUSA as his deputy. She said that Battle then was blunt with her and told her “in no uncertain terms” that she had to leave EOUSA. According to the AUSA, Battle directed her to announce her departure publicly. When she noted that she had not yet found another position, she said Battle still directed her to send out the announcement.
The AUSA sent an e-mail announcement of her departure from EOUSA on July 21, 2005. The next day, Battle sent an announcement to all U.S. Attorneys regarding her departure, as well as the announcement of the arrival of EOUSA’s new Chief of Staff.
Battle provided us with a different account of the circumstances surrounding the AUSA’s departure from EOUSA. Battle stated that he was aware that Buchanan had offered her a career SES position as Deputy Director. Battle said that he understood that by the time he became EOUSA Director the offer had been withdrawn or otherwise was not acted upon. Battle said that the AUSA asked him to “resurrect” the career SES Deputy position.
Battle adamantly denied that he asked the AUSA to leave EOUSA. He said he only asked her to move to a different office in EOUSA. He said the AUSA’s former office was directly across the hall from his and he wanted that office for his secretary so that he could communicate better with her.
Battle also denied telling the AUSA that Goodling did not trust her because she was a Democrat, or that Goodling wanted her to leave EOUSA because she was a Democrat. Battle said that he may have told the AUSA she had a “Monica problem” because of the constant tension between the two, but not because of the AUSA’s political affiliation. Battle said that he thought that the AUSA was a Democrat, but thought that the AUSA told him that, not Goodling.35
Battle acknowledged that he reassigned some of the AUSA’s duties to Goodling shortly after he arrived in EOUSA. He said he did so because the AUSA had a larger portfolio than Goodling even though both were EOUSA Deputy Directors. Battle said he wanted them to have similar workloads. Battle said the AUSA considered this to be a demotion, but in his view it was not.
Battle said that the AUSA told him that she was thinking about leaving EOUSA, and he asked her to stay. Battle said that the AUSA’s departure was not because Goodling requested or wanted it. He also denied the AUSA’s claim that he demanded that she make a public announcement about her departure before she had secured another position. Battle stated that although he told her to announce her departure to her staff, he believed that she had already obtained another detail when he asked her to do so. Battle said that he told the AUSA to tell her staff she was leaving so that they would know that she was taking another position.
We found only one contemporaneous e-mail concerning the AUSA’s departure from EOUSA. On July 23, 2005, 2 days after the AUSA publicly announced her departure from EOUSA, she sent an e-mail to ODAG Chief of Staff Rosenberg stating that Battle “told me he wanted my resignation on Thursday – before I heard back from [a prospective employer] – I was thrown for a loop.”
Other EOUSA employees had different recollections of the circumstances surrounding the AUSA’s departure from EOUSA. Buchanan said that Battle told her that the AUSA left EOUSA voluntarily after he had reassigned her office and her responsibilities. Similarly, EOUSA Deputy Director and Chief of Staff John Kelly stated that he believed the AUSA left EOUSA voluntarily and that Battle had asked her to stay.
In contrast, Dan Villegas, then Counsel to EOUSA’s Office of Legal Programs and Policy, said he understood that the AUSA was asked to leave EOUSA. He said the AUSA also told him sometime in 2007 that Battle had informed her she had “a Monica problem.” An AUSA who was on detail at the time as the EOUSA Deputy Counsel to the Director also told us that the AUSA stated to her that she was asked to leave EOUSA.
When Goodling testified before the House Judiciary Committee on May 23, 2007, she was asked whether she sought to deny the AUSA a promotion because Goodling believed she was a Democrat. Goodling responded:
You know, I don't really remember the discussions back at that time very well. What I remember was that she had been the deputy for a long time by herself, and when I arrived, a lot of the responsibilities that she had were shifted to me. I thought she resented that, and as a result, it made for a tense office environment.
However, Goodling did not answer the question whether she tried to deny the AUSA’s promotion for political reasons.
Numerous witnesses, including former EOUSA Director Battle, other EOUSA managers, and EOUSA line personnel, told us that the AUSA and Goodling had an extremely strained relationship that bordered on outright hostility. For example, former EOUSA Chief of Staff Kelly, who served at EOUSA from June 2005 until May 2007, said that the two “despised each other.” According to Battle and others, at least part of the reason for the hostility was that Battle had reassigned some of the AUSA’s responsibilities to Goodling.
In sum, we believe there was insufficient evidence to conclude that the AUSA was forced to leave EOUSA because of political or ideological affiliations. Battle denied telling the AUSA there was a problem because she was a Democrat and that Goodling could not trust her. In addition, while the AUSA was told she had a “Monica problem,” we also found significant evidence that the relationship between Goodling and the AUSA was personally very hostile. We therefore could not conclude, based on the evidence, that the reason the AUSA was not appointed to be the career SES EOUSA Deputy Director, or the reason she left EOUSA, was because of her political affiliation.
In 2006, EOUSA again published an announcement seeking a career SES Deputy Director. This was the same position for which the AUSA discussed above had applied, and for which no one had been selected.
The EOUSA Chief of Staff to Battle, who was on detail from an AUSA position in the Western District of New York, applied for the position. Battle told us that he was prepared to offer the AUSA the job, but Goodling vetoed the selection. By this time, Goodling was working in the OAG as White House Liaison, although, as noted above, she retained responsibility for certain EOUSA hiring issues.
Battle gave us two explanations for why he believed Goodling refused to let him hire the AUSA. First, Battle said that Goodling did not like the AUSA, and second, Goodling told Battle she thought the AUSA was a “political infant” who had not “proved himself” to the Republican Party by being involved enough in political campaigns.36
The AUSA told us Battle informed him that Goodling had vetoed his selection and that Goodling thought he was a “political infant” and that he had not “proven” himself “to the [Republican] Party.”
The AUSA also told us that when he first came to EOUSA as a supervisor in 2005, Goodling (who was then the EOUSA political Deputy Director) had told him that she disapproved of his appointment because she believed that his position should have been held by a political appointee, not a career attorney. According to the AUSA, when both he and Goodling worked in EOUSA, Goodling told him that he could not attend meetings with Department component heads and that all contacts with USAOs should go through her.
No one was selected for the position of career SES Deputy Director as a result of the second vacancy announcement. We asked Battle why Goodling, as White House Liaison, had veto power over his selection of career positions in EOUSA. Battle stated that he believed that both the ODAG and OAG had control over the selection of SES positions in EOUSA, whether career or political.
In sum, we concluded that the evidence showed that Goodling violated both federal law and Department policy, and therefore committed misconduct, when she considered political or ideological affiliations in hiring decisions for candidates for career positions within the Department. In particular, the evidence showed that she considered political or ideological affiliations in deciding several waiver requests from interim U.S. Attorneys, in promoting several candidates for career positions, and in disapproving a candidate for an EOUSA career SES position.
Under the Vacancy Reform Act, the First Assistant U.S. Attorney becomes the acting U.S. Attorney by operation of law when the presidentially appointed U.S. Attorney vacates the position. The term of the acting U.S. Attorney is limited by a time period specified in the statute. 5 U.S.C. § 3345. In addition, the Attorney General may fill a vacant position by appointing an individual to serve as the interim U.S. Attorney, also subject to a time limitation specified in the statute. After the expiration of that time period and if the vacancy still exists, the U.S. District Court for the district in which the vacancy occurred may appoint an interim U.S. Attorney to serve until the vacancy is filled. 5 U.S.C. § 546.
Nowacki graduated from Evangel College in 1994 and, like Goodling, from Regent University Law School in 1998. Also like Goodling, Nowacki worked in the Department’s Office of Public Affairs, from November 2003 to March 2006. He then served a 6-month detail as a Special AUSA in the Eastern District of Virginia. Like Goodling, he transferred to EOUSA in August 2006. Nowacki served as a Schedule C political appointee and an EOUSA Deputy Director. Nowacki is currently on a detail to Iraq.
Prior to his appointment as interim U.S. Attorney, beginning in 2002 Taylor served as Counselor to Attorney General Ashcroft and then Attorney General Gonzales. From 1999 to 2002, he served as Counsel to the U.S. Senate’s Committee on the Judiciary. From 1995 to 1999, he was an AUSA in the Southern District of California.
Although both Elston and Nowacki stated that the conversation took place after Goodling left the Department, based on the dates of the e-mails discussed above we believe it occurred during her last full week in the Department, which ended March 16, 2007.
Goodling could argue that as White House Liaison she did not have the “authority” to “recommend” career attorney applicants. However, on many but not all occasions, Goodling’s recommendations regarding career hires were accepted by those receiving her suggestions.
During this process, Taylor promptly responded to Goodling’s requests that the candidate be interviewed and that her application be acted upon quickly. Taylor also sought guidance from Goodling on what salary he should offer the candidate. Taylor told us that he did not hire the candidate because of her political affiliation, but acknowledged he was trying to be responsive to Goodling and the OAG by interviewing and hiring the candidate. However, Taylor said that the candidate was well qualified for an AUSA position, and that his office routinely hires new AUSAs without litigation experience, which she lacked. Taylor provided résumés of other recent AUSA hires in his office, which confirmed that Taylor has hired other AUSAs without prior litigation experience. Taylor also said that he sometimes hires AUSAs without going through the normal multi-step hiring process, but he acknowledged that those AUSAs are usually experienced litigators.
In the candidate’s hiring survey response, he said he did not complete the form. However, the documentary evidence we found in Goodling’s folder containing the candidate’s résumé shows that he did complete the PPO form, which he signed and dated on July 27, 2006.
Buchanan was interviewed by congressional investigators on June 15, 2007, in connection with the congressional investigation of the circumstances surrounding the removal of several U.S. Attorneys in 2006. In her congressional testimony, Buchanan was asked why she did not make the AUSA the EOUSA Principal Deputy Director. Buchanan responded by severely criticizing the AUSA and said she would never have offered her that job because of those criticisms. However, Buchanan did not tell the congressional investigators that she had offered the AUSA the career SES Deputy Director position.
When we interviewed her, Buchanan told us that she did not believe her testimony to Congress was inconsistent with the fact that she offered the AUSA the career SES Deputy position because the positions were different. She noted that she was asked by Congress about the Principal Deputy Director, not the career Deputy Director position.
While we concluded that Buchanan’s congressional testimony was technically accurate, we believe she should not have omitted the fact that she had told the AUSA she had selected her to be EOUSA’s career Deputy Director.
On June 12, 2005, the AUSA sent an e-mail to ODAG Chief of Staff Chuck Rosenberg in which she described her “tortured quest for the SES position.” The e-mail stated that Battle “seemed stunned to hear that my job had been posted, that I had applied for it, and that in December... MBB [Buchanan] had actually told me that she had selected me for the job.”
The AUSA told us he was a Democrat in 2004, and made a small financial contribution to the Democratic Party as well. He changed his political affiliation to the Republican Party at some point before applying for the career SES position.