This investigation examined allegations that Monica Goodling, who worked in the Office of the Attorney General (OAG) as the Department’s White House Liaison, inappropriately considered political and ideological affiliations in the selection and hiring of certain Assistant United States Attorneys (AUSA) and career attorneys in the Department, and in approving details of career attorneys to Department offices. We also investigated allegations that former Chief of Staff to the Attorney General Kyle Sampson, Goodling, and Goodling’s predecessor as the Department’s White House Liaison, Jan Williams, inappropriately considered political and ideological affiliations in selecting immigration judges (IJs) and members of the Board of Immigration Appeals (BIA), all of which are career positions.
As the Department’s White House Liaison, Goodling regularly screened candidates for political positions at the Department, and most of the persons Goodling screened or interviewed had applied for political positions. However, Goodling also approved the hiring of career AUSAs by interim U.S. Attorneys. She also approved the selection of career attorneys applying for details in several Department offices. In addition, she interviewed many candidates who were interested in obtaining any position in the Department, whether career or political, and she sometimes sought to place these individuals in career positions.
It is not improper to consider political or ideological affiliations in making hiring decisions for political positions. However, both Department policy and federal law prohibit discrimination in hiring for career positions on the basis of political affiliations.
Our investigation found that Goodling improperly subjected candidates for certain career positions to the same politically based evaluation she used on candidates for political positions, in violation of federal law and Department policy.
With regard to requests from interim U.S. Attorneys to hire AUSAs, we determined that in two instances Goodling considered the candidate’s political or ideological affiliations when she assessed the request. For example, in one instance when the interim U.S. Attorney in the District of Columbia sought approval from Goodling to hire an AUSA for a vacant position, Goodling responded that the candidate gave her pause because judging from his résumé he appeared to be a “liberal Democrat.” Goodling also stated that because Republicans had lost control of Congress after the November 2006 elections, she expected that Republican congressional staff might be interested in applying for AUSA positions in Washington. Eventually, after the interim U.S. Attorney complained to Sampson about Goodling’s response to his request, the U.S. Attorney was allowed to hire the AUSA.
The evidence also showed that Goodling considered political or ideological affiliations when recommending and selecting candidates for other permanent career positions, including a career SES position in the Executive Office for U.S. Attorneys (EOUSA) and AUSA positions. These actions violated federal law and Department policy, and also constituted misconduct.
In addition, we determined that Goodling often used political or ideological affiliations to select or reject career attorney candidates for temporary details to Department offices, including positions in EOUSA that had not been filled by political appointees. Goodling’s use of political considerations in connection with these details was particularly damaging to the Department because it resulted in high-quality candidates for important details being rejected in favor of less-qualified candidates. For example, an experienced career terrorism prosecutor 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 lacked any experience in counterterrorism issues and who EOUSA officials believed was not qualified for the position.
We also determined that in several instances Goodling and one of her predecessors as the Department’s White House Liaison, Susan Richmond, opposed on the basis of political affiliation the extensions of details for career Department attorneys working in the Office of the Deputy Attorney General, even though these candidates had the full support of the Deputy Attorney General and his staff.
While temporary detail assignments are covered by the civil service restriction on considering political affiliations in hiring, there is an exception for positions which are of a “confidential, policy-determining, policy-making, or policy-advocating character.” We believe that not all of the detailee positions at issue in this report were covered by this exception. For example, we believe that none of the EOUSA positions for which Goodling considered the detailee’s political affiliations were covered by this exemption from the civil service laws. Therefore we believe it was improper, and violated the law and Department policy, for Goodling to use political or ideological affiliations in selecting or rejecting detailees to these positions.
The evidence showed that the most systematic use of political or ideological affiliations in screening candidates for career positions occurred in the selection of IJs, who work in the Department’s Executive Office for Immigration Review (EOIR). In the spring of 2004, Sampson created and implemented a new process for the selection of IJs. The new process ensured that all candidates for these positions were selected by the Attorney General’s staff. Under this process, staff in the OAG would identify and select candidates for these positions using the Attorney General’s direct appointment authority. Sampson implemented the new process and it followed by the Department’s White House Liaisons, Williams and then Goodling.
Sampson told us that he implemented the new process because he believed that IJs were political appointees and therefore not subject to civil service rules. Sampson said that his understanding of the nature of these positions was based on a conversation with Kevin Ohlson, the Deputy Director of EOIR, as well as advice Sampson said he received from the Department’s Office of Legal Counsel (OLC). However, Ohlson told us he knew IJs were career positions and that he did not state or suggest to Sampson that these positions were exempt from civil service rules. The evidence also indicated that OLC did not advise Sampson that the Attorney General could appoint IJs without regard to the civil service laws governing the hiring of career Department employees.
We determined that, under the process implemented by Sampson and followed by Williams and Goodling, the OAG solicited candidates for IJ positions and informed EOIR who was to be hired for each position. The principal source for such candidates was the White House, although other Republican sources provided politically acceptable candidates to Sampson, Williams, and Goodling. All three of these officials inappropriately considered political or ideological affiliations in evaluating and selecting candidates for IJ positions. For example, we found that Goodling screened the candidates using a variety of techniques for determining their political affiliations, including researching the candidates’ political contributions and voter registration records, using an Internet search string with political terms, and asking the candidates questions regarding their political affiliations during interviews.
In sum, the evidence showed that Sampson, Williams, and Goodling violated federal law and Department policy, and Sampson and Goodling committed misconduct, by considering political and ideological affiliations in soliciting and selecting IJs, which are career positions protected by the civil service laws.
Not only did this process violate the law and Department policy, it also caused significant delays in appointing IJs. These delays increased the burden on the immigration courts, which already were experiencing an increased workload and a high vacancy rate. EOIR Deputy Director Ohlson repeatedly requested candidate names to address the growing number of vacancies, with little success. As a result of the delay in providing candidates, the Department was unable to timely fill the large numbers of vacant IJ positions.
We also concluded that Goodling committed misconduct when she provided inaccurate information to a Civil Division attorney who was defending a lawsuit brought by an unsuccessful IJ candidate. Goodling told the attorney that she did not take political factors into consideration in connection with IJ hiring, which was not accurate.
In addition, we concluded that Williams provided inaccurate information to us concerning her Internet research activities.
Because Goodling, Sampson, and Williams have resigned from the Department, they are no longer subject to discipline by the Department for their actions described in this report. Nevertheless, we recommend that the Department consider the findings in this report should they apply in the future for another position with the Department.
In addition, we concluded that EOUSA Deputy Director John Nowacki committed misconduct by drafting a proposed Department response to a media inquiry which he knew was inaccurate. Although Nowacki knew that Goodling had used political and ideological affiliations to assess career attorney candidates for EOUSA detail positions, he drafted a media statement in which the Department would have denied the allegations. Nowacki is still employed by the Department. Therefore, we recommend that the Department consider appropriate discipline for him based upon the evidence in this report.
Finally, as discussed in this report, after the allegations about politicized hiring arose, the Department changed various policies and practices. In 2007, in response to the allegations about Goodling’s inappropriate consideration of political affiliations on requests by interim U.S. Attorneys to hire AUSAs, former Attorney General Gonzales directed that such waiver requests be reviewed by EOUSA, not political appointees in senior Department offices. In addition, EOUSA has recently ended the practice of reviewing the résumés of the waiver candidates and instead assesses those requests solely based on the budgetary status of the USAO as well as the status of the new U.S. Attorney’s nomination. We believe these changes are appropriate and can help prevent a recurrence of the improper use of political or ideological affiliations to evaluate waiver requests for career AUSAs.
With regard to immigration judges, as a result of the civil litigation over the unsuccessful candidacy of an immigration judge applicant, in A pril 2007, former Attorney General Gonzales approved a new process to fill immigration judge positions. The new process returned the responsibility for evaluating and selecting immigration judges to EOIR. According to EOIR officials, the process is working more effectively now and political considerations are not being used in the selection of candidates.
However, we believe the Department should consider additional changes. We recommend that the Department clarify its policies regarding the use of political or ideological affiliations to select career attorney candidates for temporary details within the Department. As discussed in this report, it is unclear which detailee positions are excluded from the scope of civil service law, and the Department’s guidance on this issue is inconsistent. We recommend that the Department clarify the circumstances under which political considerations may and may not be considered when assessing career candidates for details to various Department positions.
In addition, in our June 24, 2008, report on the Department’s Honors Program and Summer Law Intern Program, we made other recommendations to address allegations of politicized hiring in the Department.92 Those recommendations included revising the Department of Justice Human Resource Order to emphasize that the process for hiring career attorneys must be merit based and to specify that ideological considerations cannot be used as proxies to discriminate on the basis of political affiliations. We also recommended that the briefing and training materials for Department political appointees should stress that candidates for career positions must be evaluated based on their merits and that ideological affiliations may not be used as a screening device for discriminating on the basis of political affiliations.
When the prior report on Honors Program hiring was issued, Attorney General Mukasey announced that the Department intended to implement all of these recommendations. These recommendations also apply to the improper conduct described in this report.
We believe that implementation of our recommendations can help prevent a recurrence of the violations of federal law and Department policy, and the misconduct, that we describe in this report.