[Senate Hearing 110-550]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 110-550



                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION


                             JULY 30, 2008


                          Serial No. J-110-113


         Printed for the use of the Committee on the Judiciary

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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware       ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin                 CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         JON KYL, Arizona
CHARLES E. SCHUMER, New York         LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
            Bruce A. Cohen, Chief Counsel and Staff Director
           Stephanie A. Middleton, Republican Staff Director
              Nicholas A. Rossi, Republican Chief Counsel

                            C O N T E N T S




Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of 
  Delaware.......................................................     5
Leahy, Hon.Patrick J., a U.S. Senator from the State of Vermont..     1
    prepared statement...........................................    43
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     3


Fine, Glenn A., Inspector General, Department of Justice, 
  Washington, D.C................................................     6

                         QUESTIONS AND ANSWERS

Responses of Glenn A. Fine to questions submitted by Senators 
  Kennedy and Coburn.............................................    26

                       SUBMISSIONS FOR THE RECORD

Fine, Glenn A., Inspector General, Department of Justice, 
  Washington, D.C., statement....................................    34
New York Times, July 29, 2008, editorial.........................    46
San Francisco Chronicle, July 29, 2008, editorial................    47
USA TODAY, editorial.............................................    48
Washington Post, July 29, 2008, editorial........................    49



                        WEDNESDAY, JULY 30, 2008

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at a.m., in room SD-
226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 
Chairman of the Committee, presiding.
    Present: Senators Leahy, Biden, Schumer, Cardin, 
Whitehouse, Specter, and Coburn.

                      THE STATE OF VERMONT

    Chairman Leahy. Good morning. Today, the Committee welcomes 
Glenn Fine, the Inspector General of the Department of Justice, 
to discuss the findings of his office's investigation into the 
hiring of attorneys for key career positions throughout the 
    The report the Inspector General released this week, along 
with a previous report released last month, shines much needed 
light on hiring decisions at the Department. For years, those 
decisions have been shrouded in a shadow cast by the Bush White 
House. The reports confirm what I and others have suspected all 
along--that senior officials within the Department of Justice 
used illegal political and ideological loyalty tests in making 
hiring decisions for career positions that, by law and the 
Department's own rules--law and the Department's own rules--are 
supposed to be nonpartisan. They broke the law. They did so as 
political partisans and cronies. And I am convinced that the 
U.S. Attorney firings and the cover-up and the widespread 
illegal hiring practices within the Justice Department that 
have been revealed represent the most serious threat to the 
effectiveness, the professionalism, and the independence of the 
Department since Watergate.
    We learned through the course of our investigation of the 
firings of the U.S. Attorneys that only ``loyal Bushies'' would 
ultimately keep their jobs, to use their words. We had people 
being asked not how you can serve your country or how you can 
serve the Department of Justice, but how do you serve George W. 
Bush. You are there to serve the country, not any individual 
President, Republican or Democratic.
    Last month we saw that political functionaries under Mr. 
Ashcroft and Mr. Gonzales corrupted the honors program for the 
best and the brightest coming out of law schools--the honors 
program being something where we looked to recruit career 
people in the Department of Justice by picking only the very, 
very best, irrespective of their political background. But here 
they turned it into something that no matter how talented you 
are, you could only apply if you were a demonstrably loyal 
conservative Republican. Now we see in the reports of the 
Inspector General that our worst fears are also realized in the 
Department's hiring and assignment practices for nonpartisan 
attorney positions, those of immigration judges and 
prosecutors. Why would you be seeking a partisan immigration 
judge or prosecutor? The law is the law. It does not make any 
difference which party you belong to. We actually have laws 
against doing such a thing, and those laws were broken.
    As a former prosecutor, I would hope that the Department of 
Justice would take its responsibilities seriously now and hold 
people accountable. Only then will the Department have moved 
forward to help ensure that this never happens again. Something 
should be done now. We do not know who the next President is 
going to be, but no matter who it is, we should establish the 
criteria so this never happens again.
    But I have yet to see any such response from the current 
leadership of the Department, and one of my questions to Mr. 
Fine today is whether the Inspector General has made referrals 
to the prosecuting arms of the Department for further 
investigations and possible prosecutions.
    The Inspector General's reports confirm that senior 
officials who report to the office holders at the highest 
levels at the Justice Department and who also interacted with 
the White House sacrificed the independence of law enforcement 
and the rule of law in allegiance to this current 
administration. The key question should be whether the 
applicant is qualified for the job. However--and I have 
referred to this already--according to the report, the key 
question from Monica Goodling, the Department's White House 
Liaison, and others, was: ``What is it about George Bush that 
makes you want to serve him?'' It would be a lot better as, 
``What is it about the cause of justice that makes you want to 
serve the cause of justice? ''
    Federal prosecutors and immigration judges take an oath of 
office, but that oath is to the Constitution, not to an 
individual person. They are to serve justice and the American 
people. This administration has had it wrong from the outset, 
and all of us, but especially our institutions of Government, 
have been the victims.
    There are chilling examples in this week's report that show 
the danger of putting loyalty to a certain office holder above 
the duty to enforce the law. The report documents one incident 
where ``[A]n experienced career terrorism prosecutor was 
rejected by Goodling for a detail to [the] Executive Office of 
U.S. Attorneys (EOUSA) to work on counterterrorism issues 
because of his wife's political affiliations.'' So we lose a 
very, very experienced person because his wife dared to have a 
political affiliation of her own. And so the Executive Office 
of U.S. Attorneys ``had to select a much more junior attorney 
who lacked any experience in counterterrorism issues and who 
[those] officials believed was not qualified for the 
position.'' It is almost as if we have hit the replay button on 
the tragic aftermath of Katrina, where cronyism was valued over 
    According to the report, the system put in place by the 
chief of staff of then-Attorney General Alberto Gonzales for 
selecting immigration judges, appointments that by law are non-
political, was the most ``systemic use of political or 
ideological affiliations in screening candidates for career 
positions [that] occurred.'' The Department's practice not only 
subverted the law and placed political loyalty above fairness, 
it caused serious delays in filling immigration judge positions 
just as the workload and importance of those judges was 
increasing. The report reveals that the ``principal source'' 
for politically vetted candidates considered for these 
important positions was the White House--demonstrating the 
extent of the political reach of the White House into the 
Department's career ranks, an unprecedented activity.
    There can be no remaining question that this administration 
encouraged politics to infect the Department and law 
enforcement. The question, of course, that I have is: What will 
Attorney General Mukasey and the President do about it to 
provide accountability?
    In our oversight hearing earlier this month, Attorney 
General Mukasey essentially dismissed the findings of last 
month's report as the actions of just a few bad apples. This 
reminds me of the administration's ongoing attempt to place the 
blame for the actions at Abu Ghraib solely on the shoulders of 
a few soldiers there rather than see those excesses as a 
consequence of the policies and practices put into place by the 
President, the Department of Justice, and the Pentagon.
    This week's report, like the one that preceded it, makes 
clear that the problems of injecting politics into the hiring 
decisions of the Department are rooted deeper than just the 
actions of a handful of individuals.
    Even with blanket claims of privilege and immunity from the 
White House in their effort to try to cover up the truth, we 
continue to learn about the unprecedented and improper reach of 
politics into the Department's professional ranks. There is 
only so much they can do to cover up. The truth does come out. 
And by infusing politics into the hiring of career Assistant 
U.S. Attorney positions, senior career attorney positions, Main 
Justice detailees, young career attorneys, and immigration 
judges, this administration and its operatives have done 
serious damage to the rule of law. The American people look 
forward to a serious response from the current leadership of 
the Department of Justice.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Senator Specter?

                        OF PENNSYLVANIA

    Senator Specter. Thank you, Mr. Chairman.
    At the outset, Mr. Fine, I thank you for your work on these 
very important matters. The independence of an Inspector 
General is demonstrated by the work you have done here and the 
last appearance before this Committee on detainees and 
underscores the importance of Inspectors General in so many of 
the departments to bring an independent look at the issue, to 
call it as it is and let the chips fall where they may. And 
there is no doubt that when we are dealing with positions like 
immigration judges or the Court of Immigration Appeals, 
political considerations ought not to be a factor.
    The investigation so far has dealt with people who are not 
at the top of the ladder in the Department of Justice, and it 
raises a question in my mind as to whether others were 
involved. You have Monica Goodling and you have Kyle Sampson 
and you have John Nowacki, all of whom occupied important 
positions, but not the key positions.
    When you were before this Committee a few weeks ago on the 
issue of detainees, I expressed my concern about the 
thoroughness of your investigation on questioning the Director 
of the FBI, Robert Mueller, from the point of view of the FBI 
disagreeing with the CIA interrogation tactics, which was a 
good sign of independence. But what further did Director 
Mueller do to try to stop it? What effort did he make to take 
it even to the President? And I believe that it is very 
important that the investigations go to the very top if that is 
where the facts lead, and that is a subject which I will want 
to hear you on when the time comes for questions and answers.
    The issue arises as to whether there is potential for 
criminal prosecution. And when this story broke in the media, 
of course, the media wants to know instantly with the telephone 
calls do you favor criminal prosecutions. Well, my response was 
I would like to know what the facts are first. That is not a 
very satisfactory answer. It does not make the early editions.
    I have read conflicting reports on whether violations of 
the civil service laws give rise to a criminal prosecution. 
Apparently, they do not. That is something we would have to 
check. Or there is a question of false statements. And I note 
some Members of Congress have already condemned some of these 
individuals on those grounds. We have to take a very close look 
at what the facts are to see what is going on.
    I am glad to see Attorney General Mukasey acting to change 
these practices. I would like to see, frankly, a very forceful 
statement out of the Department of Justice as to what they 
intend to do and what they think about it in some detail. They 
have the prosecution responsibility. You do not. I would like 
to see the Department of Justice speak emphatically on this 
subject. So there is a great deal we have to look at here.
    One aspect of the report which I think is highly 
significant are the compliments which went to Acting Attorney 
General Peter Keisler. Keisler is quoted as saying, ``You 
should have known that there's a lot of people who believe that 
these selections are either irrational or so irrational that 
they are motivated by politics, and that is a problem, as you 
know.'' So here is a top Assistant Attorney General who was 
Acting Attorney General speaking out against his party. Kind of 
a healthy thing in Washington when that is done on occasion. It 
is not done often enough where the facts warrant it.
    And then the report came to this conclusion: ``Acting 
Attorney General Keisler spoke with Mercer and advised him that 
the review process had been problematic and that many people in 
the Civil Division believed it had been politicized. Keisler 
told Mercer that at the appropriate time he would like to have 
a meeting with senior Department officials to discuss the next 
year's hiring process to ensure that the problems they 
encountered in 2006 would not be repeated.''
    Well, I read that because the nomination of Peter Keisler 
is pending before this Committee, and he has waited a long 
time. And the question is qualification. And when you have this 
kind of independence exhibited by Mr. Keisler and recognized by 
the Inspector General in what is otherwise a very lurid 
situation, I think that is something special. It reminds me of 
an instant long ago when there was a prosecuting attorney in 
New Jersey named Brendan Byrne. Senator Biden will remember 
this. Senator Leahy will remember this. So sometimes they 
comment about the aging Senators. Of course, it is not true, 
but it is good to have a little corporate memory.
    But Brendan Byrne's name was picked up on an FBI tape, and 
the mob was talking about Brendan Byrne. And they say, ``The 
problem with Byrne is he is honest,'' which was something rare 
for somebody in North Jersey at that time. They say business 
got so bad, the Mafia had to write off several judges in North 
Jersey. I was DA at the time, Brendan Byrne was the district 
attorney. Biden had already gotten to the Senate at the age of 
19 or some such age.
    Senator Specter. But that established Brendan Byrne's 
reputation. Leahy and I--
    Chairman Leahy. If you would yield, I served on the board 
of the National DA Association with Brendan Byrne.
    Senator Specter. Well, you and I are not old timers, 
Patrick, but we have some corporate--Joe Biden was a public 
defender. He didn't get to be a prosecuting attorney. But I 
mention Brendan Byrne because his reputation was established. 
They named a big basketball arena after Brendan Byrne. And 
Keisler is almost in Byrne's category, maybe enough to attract 
the attention of the Chairman of the Judiciary Committee.
    Well, I have talked at some length. Regrettably, I cannot 
stay for this entire proceeding because we are on the floor 
with the reporter shield bill, which is my bill, and it is 
coming up for a vote, and I am to speak on it shortly. But I 
will be following your testimony very closely on this very 
important subject, Mr. Fine.
    Thank you.
    Chairman Leahy. Thank you, and we will start with Glenn 
Fine. I know that Senator Biden wanted to say why he has to 

                       STATE OF DELAWARE

    Senator Biden. Mr. Chairman, thank you, first, for holding 
the hearing--
    Chairman Leahy. It is not that we do not love you that they 
are all leaving, but go ahead.
    Senator Biden. Well, this thing about corporate memory, I 
have observed that corporate memory, that assumes you have a 
wealth of experience and memories that go back. The problem is 
the older you get, the harder it is to recall them. But, Mr. 
Chairman, thank you for the hearing.
    Mr. Fine, I just wanted to explain that after your 
testimony I will be leaving. I chair another Committee, and the 
Prime Minister of Pakistan is our witness--not our witness, our 
guest. And so that is why I will be leaving.
    I would associate myself with the remarks of both my 
colleagues. Facts do matter. It is important. And the one 
central thing, if I do not get a chance to ask you questions--
and maybe I can submit a few in writing--for me, in my 
experience with seven Presidents, it is not often that someone 
at Goodling and Sampson's level are able to have this kind of 
latitude without someone above them instructing them. And I 
would very much like to know where this goes, if it goes 
anywhere, as the Senator from Pennsylvania indicated.
    I thank you.
    Chairman Leahy. Thank you very much, and we will find out.
    I would note that Glenn Fine was confirmed by the U.S. 
Senate as the Inspector General for the Department of Justice 
on December 15, 2000. He has worked with the Department of 
Justice Office of the Inspector General, OIG, since January 
1995. Initially, he was Special Counsel to the Inspector 
General. Before joining the OIG, Mr. Fine was an attorney 
specializing in labor and employment law at a law firm in 
Washington. Prior to that, he served as an Assistant U.S. 
Attorney in the Washington, D.C., U.S. Attorney's Office. He 
graduated magna cum laude from Harvard College in 1979 with an 
A.B. degree in economics. And so people will not think he was 
solely studying, he was co-captain of the varsity basketball 
team and was drafted by the San Antonio Spurs of the NBA. I see 
a smile. I think there are probably days he wishes--Mr. Fine 
was a Rhodes Scholar. He earned his B.A. and his M.A. degrees 
from Oxford and received his law degree magna cum laude from 
Harvard Law School in 1985.
    Mr. Fine, please go ahead, sir.
    Senator Biden. Underachiever.

                   JUSTICE, WASHINGTON, D.C.

    Mr. Fine. Thank you, Mr. Chairman, Senator Specter, members 
of the Committee. I appreciate your invitation to testify at 
this hearing about two reports recently issued by the Office of 
the Inspector General and the Office of Professional 
Responsibility on allegations relating to politicized hiring at 
the Justice Department.
    The first joint report, issued on June 24th, examined 
hiring practices in the Department's Honors Program and Summer 
Law Intern Program. The second report, issued on Monday, 
examined allegations that Monica Goodling and other staff in 
the Attorney General's office inappropriately considered 
political affiliations when hiring for career Department 
    With regard to the first report, the Department's Honors 
Program is the exclusive means by which the Department hires 
recent law school graduates. These are career positions, and, 
therefore, Department policy and Federal civil service law 
prohibit discrimination on the basis of political affiliations. 
However, the evidence in our investigation showed that a 
Screening Committee established by the Department in 2002 
deselected for interviews those candidates with Democratic 
Party and liberal affiliations apparent on their applications 
at a significantly higher rate than applicants with Republican 
Party, conservative, or neutral affiliations. This pattern 
continued even when we compared a subset of academically highly 
qualified candidates.
    From 2003 to 2005, the Screening Committees made few 
deselections, and these decisions could reasonably be explained 
on the basis of candidates' academic qualifications.
    However, we found that two members of the 2006 Screening 
Committee--Esther Slater McDonald and Michael Elston--
inappropriately considered political or ideological 
affiliations in deselecting many candidates.
    As just one example--and many more are discussed in our 
report--McDonald and Elston deselected an Honors Program 
candidate who was first in his class at Georgetown Law School, 
had clerked for a judge on the U.S. District Court, and was 
clerking for a judge on the Second Circuit Court of Appeals. 
However, this candidate had also worked for a Democratic U.S. 
Senator and a human rights organization and was deselected.
    We concluded that McDonald's and Elston's actions 
constituted misconduct and violated Department policy and 
Federal civil service law.
    Our second report, issued on Monday, described the results 
of our investigation into actions by Monica Goodling and other 
staff in the Attorney General's office. We concluded that 
Goodling regularly considered political affiliations in 
screening candidates for career positions at the Department, 
which also was misconduct and violated Department policy and 
Federal civil service law.
    For example, in one instance the interim U.S. Attorney in 
the District of Columbia sought approval from Goodling to hire 
an Assistant United States Attorney for a vacant position. 
Goodling responded that the candidate gave her pause because, 
judging from his resume, he appeared to be a ``liberal 
Democrat.'' Goodling also said she was reluctant to approve the 
request because she expected that Republican congressional 
staff might be interested in applying for AUSA positions in 
Washington. Only after the U.S. Attorney objected was he 
allowed to hire the AUSA.
    In addition, Goodling often used political affiliations to 
select or reject career attorney candidates for temporary 
details to Department offices. This was particularly damaging 
to the Department because it resulted in high-quality 
candidates for important details being rejected in favor of 
less qualified candidates. Perhaps the most troubling example, 
mentioned by Senator Leahy, an experienced career terrorism 
prosecutor was rejected by Goodling for a detail to work on 
counterterrorism issues in the Executive Office for U.S. 
Attorneys because of his wife's political affiliation. Instead, 
EOUSA officials had to select a more junior attorney who lacked 
experience with counterterrorism issues and who the EOUSA 
officials believed was not qualified for the position.
    The most systematic use of improper political or 
ideological affiliations in screening candidates for career 
positions occurred in the selection of immigration judges. 
Under a new process implemented by Kyle Sampson in 2004, 
immigration judge candidates were treated as political 
appointees. Goodling used a variety of techniques for 
determining candidates' political affiliations, such as 
researching their political contributions and voter 
registration records and using an Internet search string that 
contained political terms.
    Not only did this process violate the civil service law and 
Department policy, it also caused significant delays in 
appointing immigration judges. These delays increased the 
burden on the immigration courts, which already were 
experiencing an increased workload and a high vacancy rate.
    Both prior to and since issuance of our two reports on 
politicized hiring, the Department has taken steps to attempt 
to prevent the serious problems raised by these actions from 
occurring again. Attorney General Mukasey has agreed to 
implement all the recommendations of our reports.
    Finally, I want to note that the OIG and OPR are now 
jointly investigating allegations related to the removal of 
several United States Attorneys as well as allegations that 
Bradley Schlozman and others used political affiliations in 
hiring and personnel decisions in the Department's Civil Rights 
Division. Because these investigations are ongoing, I should 
not discuss them. However, I want to assure the Committee that 
the OIG and OPR are working very hard on these investigations 
and will issue our reports as expeditiously as possible when 
those investigations are complete.
    In conclusion, I believe that the Department must ensure 
that the serious problems and misconduct we found in our two 
reports about politicized hiring for career positions in the 
Department do not recur. Implementation of our recommendations 
and vigilance by current and future Department leaders can help 
prevent a recurrence of the serious misconduct and violations 
of Federal civil service law and Department policy that are 
described throughout our reports.
    That concludes my prepared statement, and I would be 
pleased to answer any questions.
    [The prepared statement of Mr. Fine appears as a submission 
for the record.]
    Chairman Leahy. Thank you very much, Mr. Fine.
    According to your report, Monica Goodling, the Department's 
White House Liaison and senior counsel to the Attorney General, 
had a number of techniques to screen hires for political and 
ideological loyalty, especially loyalty to the President. I 
remember we brought this out at a hearing whether she would ask 
questions of applicants such as, What is it about George W. 
Bush that makes you want to serve him? That seems unusual 
because usually people ask, What is it about the U.S. 
Government that makes you want to serve in the United States 
    Kyle Sampson, then Chief of Staff to Attorney General 
Gonzales, put in place a system for screening and selecting 
immigration judges that were fellow Republican loyalists, the 
principal source of which was the White House positions.
    Now, in the course of our investigations into these matters 
and the firing of U.S. Attorneys, and despite substantial 
evidence showing White House involvement in the firings and in 
the effort for a politically motivated prosecutions, in 
response to congressional inquiries about these matters, the 
President has invoked a blanket and unsubstantiated claim of 
Executive privilege to avoid complying with our subpoenas, and 
to prevent Karl Rove and Harriet Miers from even appearing to 
testify here and in the House.
    Now, I take it you were not allowed to interview either Mr. 
Rove or Ms. Miers?
    Mr. Fine. We did not interview Mr. Rove or Ms. Miers in 
this investigation. As we discuss in the report, we were able 
to interview someone in the Office of Political Affairs at the 
Department who was involved with Goodling and Williams in 
selecting immigration judges. We did interview him. From the 
indications that we saw in both the e-mails to and from the 
Department and from the testimony of the Department, we did not 
see indications that it went higher to Mr. Rove or Ms. Miers.
    There is one instance where Mr. Rove was involved, and that 
is, he recommended an immigration judge for a vacant position 
in Chicago, and it was clear that he was pushing for this 
candidate. This candidate eventually was selected.
    Chairman Leahy. The two reports you have issues so far 
conclude that a broad set of high-level Department officials 
were involved in illegal political and loyalty screening for 
hires, including the former Acting Associate Attorney General, 
former Chief of Staff to the Attorney General, the former White 
House Liaison, and senior counsel to the Attorney General, two 
other former White House Liaisons, the former counsel to the 
Associate Attorney General, the former Chief of Staff of the 
Deputy Attorney General, and the current Deputy Director of the 
Executive Office of U.S. Attorneys.
    Now, these officials, include a number of key officials at 
the Department, including Chiefs of Staff to the Attorney 
General and the number two official at the Department. In fact, 
the complaints that were raised were ignored. At an oversight 
hearing last month, Attorney General Mukasey characterized the 
firings in your first report in this way. He said, ``I found 
that the IG report reflected that a few people currently 
employed by the Department, one of whom is longer in the job 
that he was in, had failed to respond with sufficient alacrity 
to the charges''--I do not want to interrupt the conversation 
next to me here--``failed to respond with sufficient alacrity 
to charge as politicization.'' That is very different from 
saying they found a politicized Department.
    I wonder if you agree with his characterization of the 
conclusion in your report. Was this a problem in that there 
were just a few bad apples who failed to respond with 
sufficient alacrity or a more serious and systemic problem?
    Mr. Fine. I think this is a serious problem that had 
implications throughout the Department of Justice. The ones who 
committed the wrongdoing, we identify in the reports, both in 
our Honors Program report as well as in our report on Monica 
Goodling and others. It had a significant effect throughout the 
Department. I think one of the significant things was people 
not objecting, people not standing up. Senator Specter alluded 
to this. A few did but most did not, and I think that was one 
of the significant problems that we found in the report.
    Another significant problem that I think is important to 
note is the lack of oversight of these people. These were 
inexperienced, junior people to some extent; they rose to high-
level positions, and they were allowed to implement these 
actions and changes unchecked without adequate supervision, 
without adequate oversight, and it resulted in very serious 
damage to the Department of Justice. So I think it is a 
systemic, important issue that needs to be addressed.
    Chairman Leahy. The fact that they rose to these high 
positions, I mean, these were positions where normally you have 
a great deal of experience and institutional knowledge before 
you are put in these positions. Is that correct?
    Mr. Fine. Sometimes they do, but I think in this case there 
were a significant number of ones who did not have experience 
for the job that they were put in. I will give you an example.
    In the Honors Program, a very important program in the 
Department of Justice, and the screening of candidates for that 
is very important, many of the people who apply for this Honors 
Program remain with the Department for much of their career. It 
is a career position. It is the backbone of the Department of 
Justice. So they set up a Screening Committee, and in 2006, 
they assigned Esther Slater McDonald to be on the Screening 
Committee. And she had been in the Department for less than a 
month. She was a junior attorney. She was not even given 
instructions on what to look for or overseen in her actions. I 
think that is negligent. I think that is not appropriate, and 
that on these important programs, there needs to be better 
oversight and supervision. It did not happen.
    Chairman Leahy. That is interesting, because I know when I 
was recruited by the then-Attorney General when I was a law 
student, he made it very, very clear that politics would not be 
allowed in these professional positions and that the White 
House could not interfere with them, could not interfere with 
the prosecutors, could not interfere with these decisions, and 
that was Attorney General Robert Kennedy, who, if there was 
anybody who might have close ties to the White House, he would.
    Your report documents many examples of the use of code 
words by Ms. Goodling and others as a stand-in for political 
loyalty or ideology to eliminate candidates. Ruth Marcus noted 
in the Washington Post this morning the term ``good American'' 
was understood to be a stand-in for ``Republican.'' It was 
used, for example, by the then-interim U.S. Attorney Brad 
Schlozman to persuade Ms. Goodling to approve his choices for 
career prosecutor positions. Perhaps the most egregious 
example, it was used by Ms. Goodling and others in Internet 
searches designed to obtain political and ideological 
affiliations. Here is one example of a Lexis-Nexis search used 
by Jane Williams, Ms. Goodling's predecessor as liaison to the 
Bush White House.
    [Indicates chart showing search terms.]
    In a Department position like that, they would be looking 
for this person to have experience. If they are going to be a 
prosecutor, have they had experience in trying cases and making 
decisions? Do they have a law enforcement background? This 
seems to be anything but, or am I reading too much into this.
    Mr. Fine. No, I do not think you are reading too much into 
it. The problem was screening for political considerations is 
not improper for political jobs. It is improper when it is used 
for career jobs, and that is when it was used here. And they 
did use code words, and you gave the example of Bradley 
Schlozman. He did talk about trying to get approval to hire 
AUSAs when he was the interim U.S. Attorney in Missouri, called 
them ``rock solid Americans,'' ``hugely positive legacy for 
this administration.'' He described the candidates in terms of 
their conservative credentials and involvement in the Bush-
Cheney campaign, ``hard core'' in the most positive sense of 
the word. And Goodling gave him permission to hire ``one more 
good American.'' That has nothing to do with your 
qualifications to be an Assistant United States Attorney.
    Another example, there was an official who wanted to apply 
for a detail in the Office of Legal Policy. She was asked and 
was told that the Office of Legal Policy provides advice to the 
Attorney General, and he expected to receive advice consistent 
with his policies and beliefs. This candidate scratched his 
head and said, ``That is not my understanding.'' He said it to 
himself. ``My understanding is that it should be consistent 
with the law.'' And that is the troubling aspect of this. That 
is what should be considered: their qualifications, their 
academic qualifications, their background for career positions. 
And we found instances where--many instances where it was not. 
It is very troubling and very damaging.
    Chairman Leahy. Thank you.
    Senator Specter?
    Senator Specter. Thank you, Mr. Chairman.
    Mr. Fine, did the conduct of Monica Goodling or Kyle 
Sampson or John Nowacki in politicizing the appointments of 
people like immigration judges or members of the Board of 
Immigration Appeals, did that constitute a violation of 
criminal law?
    Mr. Fine. I do not believe it did, Senator Specter. I 
believe it violated Department policy and Federal civil service 
law, which is civil law, but not criminal law. It is not a 
criminal statute.
    Senator Specter. Was there anything in your investigation 
to suggest that there is a basis for criminal prosecutions for 
making false officials statements?
    Mr. Fine. We looked at that carefully, and in our judgment 
and the judgment of prosecutors, experienced prosecutors who 
have worked on this case for us, we did not think that there 
was a sufficient basis for a criminal prosecution for false 
statements for anyone. We also noted we do not think that 
Monica Goodling made false statements to Congress. But we also 
know that she has immunity and sort of use of any testimony or 
the fruits of any testimony would be prohibited.
    But having said that, I will say that we do not believe 
that the conduct that we found in our report constituted a 
criminal violation. It was a violation of civil law and 
Department policy.
    Senator Specter. Was former Attorney General Gonzales 
questioned on this matter?
    Mr. Fine. Yes, he was.
    Senator Specter. And what did he say?
    Mr. Fine. He said he was not aware of what was going on. He 
said he did not know Goodling used political factors when 
assessing candidates for career positions, did not know the 
search terms that Goodling used, did not know even that 
Goodling's portfolio included hiring for IJs, and basically 
said he did not have knowledge of the role the Office of the 
Attorney General played in identifying candidates and was not 
involved in the selection of these immigration judges. He said 
the first time he became aware of problems or complaints in the 
Honors Program was in April 2007 when there was an anonymous 
letter provided to Congress in public, and when he heard about 
that, he told the Deputy Attorney General to fix it. That was 
what he said.
    Senator Specter. Were Goodling, Sampson, and Nowacki 
questioned as to former Attorney General Gonzales' 
participation in an of these matters?
    Mr. Fine. Yes.
    Senator Specter. Attorney General Gonzales denied--I see 
you turning back. Do you have a modification to that answer?
    Mr. Fine. Yes. Goodling was not questioned by us. She 
refused to be interviewed by us. She was questioned by the 
House Judiciary Committee.
    Senator Specter. During the Judiciary Committee hearings on 
the U.S. Analyst issue on replacement, Attorney General 
Gonzales at that time denied knowing anything about that, and 
his testimony was contradicted by a number of people. But you 
are saying that did not happen here.
    Mr. Fine. Exactly, saying it did not happen here. We are 
looking at the removal of U.S. Attorneys, as I mentioned in my 
statement. We are looking at that very carefully and will view 
all the issues in that one.
    Senator Specter. And what White House officials, if any, 
were questioned on this issue of politicization of 
    Mr. Fine. Scott Jennings, who was in the Office of 
Political Affairs at the White House and who had the contact 
with Monica Goodling and her predecessors who were the White 
House Liaisons with the Department of Justice and provided 
candidates to the Department for these positions, particularly 
for immigration judges.
    Senator Specter. And why were no others at the White House 
    Mr. Fine. From the evidence that we had, both e-mails, 
discussions, we did not see that the others were involved in 
this process. And we questioned the person who was involved.
    Senator Specter. What steps have been taken by the 
Department of Justice, to your knowledge, at the present time 
to avoid a recurrence of this kind of a problem?
    Mr. Fine. They have taken steps both when the issue arose 
back in April 2007 and also in response to our report to 
prevent a recurrence of this. For example, they have put back 
in the Executive Office for U.S. Attorneys the decisions on 
waiver applications by interim U.S. Attorneys who want to hire 
AUSAs. It is not the Office of the Attorney General who decides 
it anymore. It is EOUSA officials, and they only decide it 
based on financial considerations.
    In addition, immigration judges are screened by a process 
that is in the Executive Office for Immigration Review by the 
officials there, the career officials there. They are rated. 
They are interviewed. And it is not within the political people 
in the Department anymore.
    In response to the Honors Program, they have ensured that 
the Screening Committees are done by career officials. They are 
done at the Office of Attorney Resource Management. If there 
are any deselections, it is based upon academics. And if there 
is anything else, there has to be listed reasons why it 
    In addition, the screening officials have to certify that 
they are only going to use merit-based principles, not 
political considerations, that they understand those principles 
and will use those principles. They have changed the Department 
of Justice human resources order to make that 100 percent 
clear, and they are considering training for officials 
    Senator Specter. Mr. Fine, I do not have much time left, 
and I want to cover one other subject. Elaborate upon the 
activities and conduct of Mr. Peter Keisler with respect to 
this issue.
    Mr. Fine. As you pointed out, we credited what he did in 
this case. He received complaints from people who worked for 
him in the Civil Division about deselections that were 
completely irrational. These were highly qualified candidates 
who were deselected. He went to the person involved with the 
Screening Committee, Mike Elston, and protested about that. He 
appealed it. In some cases, he was--
    Senator Specter. He appealed it to whom?
    Mr. Fine. To Elston. He appealed the decision that was made 
to deselect a candidate for the Civil Division who was 
eminently qualified.
    Senator Specter. When you say he appealed it, whom did he 
appeal it to?
    Mr. Fine. Michael Elston, who was the Chair of the 
Screening Committee. He appealed the deselection.
    Senator Specter. And what was the result of that effort by 
Mr. Keisler?
    Mr. Fine. I think in that case the appeal was successful, 
and they were allowed to interview the candidate. He also 
discussed holding a meeting to discuss these issues, and he 
raised objections to it. I believe that what Peter Keisler did 
was appropriate and laudatory and that he should be praised. 
And I wish others had dome similar things. There were some who 
did it--Eileen O'Connor from the Tax Division, career attorneys 
in the Tax Division and the Civil Division. But other did not, 
and I think that was part of the problem as well. Peter Keisler 
did and should be credited for that.
    Senator Specter. Well, praise is fine, but how about 
    Mr. Fine. That is not my ability to promote. I try to 
provide the facts.
    Senator Specter. You are not going to comment on his 
qualifications to be a circuit judge in the District of 
    Mr. Fine. No. I really do not think I should do that. I can 
comment that every dealing I have had with Peter Keisler has 
been professional. I have been tremendously impressed with him. 
I think he is a straight shooter.
    Senator Specter. Well, Mr. Fine, that is close enough, as 
the expression goes, for Government work.
    Mr. Fine. Those are the facts, and I try and bring them to 
you, Senator.
    Senator Specter. Well, I appreciate that, and I appreciate 
your candor, Mr. Fine, and I have pursued that a little more so 
because I have interviewed him, I have talked to him, gone over 
his record with a fine-toothed comb, and hope yet that before 
the 110th Congress ends we can break the judicial impasse and 
confirm people like Peter Keisler and others. And I think your 
report, since you are noted for objectivity and very, very 
factual as to what he did here, is a strong recommendation 
inferentially of what is shown in the facts. That is the best 
kind of a recommendation. Thank you, Mr. Fine.
    Thank you, Mr. Chairman.
    Senator Cardin. [Presiding.] Senator Leahy and I believe 
Senator Specter need to be on the floor because of legislation 
now of this Committee that is being considered on the floor. 
With that, I would recognize Senator Whitehouse.
    Senator Whitehouse. Thank you, Chairman Cardin.
    First of all, thank you, Mr. Fine, for the work that you 
have done. I appreciate it very much, but I have to say it is 
creepy to read your report and see what was done. I served in 
the Department of Justice for 4 years, and my sense was that no 
matter how ardent the politics of any administration, they knew 
there were certain things you just do not do; there were 
certain institutions you just do not ruin. And the Department 
of Justice was obviously one of them, probably the most 
significant one. And so the fact that this happened really 
shows that when it comes to politics, this is an administration 
that has no gag reflex. And it was brought home particularly in 
their description of--I mean, if there is one area where the 
Bush administration would like to identify itself as being 
involved and interested and effective, it is counterterrorism. 
And yet where a truly experienced, highly regarded 
counterterrorism prosecutor is up for a position, that person 
got knocked out for somebody who had essentially no 
qualification whatsoever but the political qualification. And I 
cannot help but remark on the priorities that that choice 
    The concern I have is that for all that was done in the 
past--and you have done a wonderful job of shedding some light 
on it--the present Attorney General's position appears to be, 
We will sin no more, and I believe that he has kept his word on 
that. The problem is that there is a residue from what was done 
before. As you said, it was serious; it was significant; it was 
systemic. And the idea that it had no effect but lingers in the 
Department to me is just not realistic. And I see in particular 
there are a number of people who were hired into the 
Department, who are presumably still there, hired through a 
civil service system that was corrupted in this case. There 
were immigration judges hired, I believe, as you note, several 
instances in which they were hired without even interviews or 
without even a reference to the Executive Office of Immigration 
Review. We count more than 20 judges appointed under this 
process, some there was a little bit more screening, but some 
it appears who have just been assigned out by the politicos.
    Can you guarantee us that those people are qualified? And 
setting that aside, is that really the correct standard, or 
should there be some consequence for folks who come through 
what purports to be a civil service process but is truly a 
bogus one, and now hold a position that grants them civil 
service protection that they frankly do not deserve by virtue 
of the discrepancies from a proper process by which they were 
    Mr. Fine. Simply said, Senator Whitehouse, can I guarantee 
that all are qualified immigration judges? No, I cannot. I do 
know that some of them after they were hired, a few--a very 
few--did not survive the probationary period and are not there 
anymore. I also know that some, according to the Executive 
Office for Immigration Review, are doing well and have been 
good judges.
    I think it is a concern. That is the harm of this process 
because they were not required to compete against all the other 
qualified candidates who did not get an opportunity to do it. 
The Department has changed the process and is now hiring 
according to what I believe is an appropriate process.
    You are right, there were approximately 20 to 40 or so 
immigration judges identified by the process. Not all of them 
were selected and not all of them are still there, but it is a 
small number. There are about 230 or so immigration judges in 
total. So while that is not solace for how the process worked, 
it is not an overwhelming majority of the immigration judges 
who obtained their positions through this flawed process.
    You are right, they do have civil service protections, and 
it would be difficult, if not impossible, to look to see ex 
post facto are they qualified now. I think the important thing 
is for the officials in the Executive Office for Immigration 
Review to manage the program appropriately, make sure that 
people are doing the right thing. And if they are not and are 
not able to be immigration judges, they ought to take action.
    Senator Whitehouse. What is the consequence--you have 
indicated that there is no criminal prosecution that is 
available. Your report points out that it was a violation of 
Federal law to do this. I do not read in your report that there 
is any referral of any kind that you suggest for any legal 
action. It looks like they got away with it scot free and that 
the so-called loyal Bushies that they stuffed into these 
positions would also have gotten away with it and will be there 
essentially indefinitely protected by civil service protections 
that they do not deserve?
    Mr. Fine. Well, Senator Whitehouse, I do not think they got 
away with it. I do think, first, their actions were exposed and 
condemned. Two, the ones--at least one who was with the 
Department should be considered and I believe will be 
considered for appropriate disciplinary action. The ones who 
are no longer with the Department should never get a job with 
the Department or, in my view, any other Federal agency based 
upon the conduct listed, and I hope--and they should consider 
this action. And there are also potential bar issues for the 
attorneys who have committed misconduct.
    And so I do not believe that they got away with it, and I 
believe that both our report and the actions of this Committee 
and potential ramifications belie that.
    Senator Whitehouse. Well, your report was certainly very 
important, and whatever consequences do ensue, I very much 
appreciate that you have done it, and the thoughtful way in 
which it was done. I cannot resist in my last 20 seconds to 
just observe that you are not involved in the investigation 
into the Office of Legal Counsel. That is an OPR investigation. 
Is that correct?
    Mr. Fine. Which one are you talking about? Could you 
amplify that?
    Senator Whitehouse. I am aware that there is an OPR 
investigation into the Office of Legal Counsel with respect to 
whether the opinions that were prepared by the Office of Legal 
Counsel, I think, at the tail end of the process not that 
different from what took place here, heavily politicized in 
which standards were knocked over in order to get the right 
political answer, and whether those opinions met basic 
standards of legal research, legal propriety, and so forth. Are 
you in any respect also looking into anything at the Office of 
Legal Counsel, or is that solely an OPR investigation?
    Mr. Fine. The investigation that you describe is an Office 
of Professional Responsibility investigation. We do not have 
jurisdiction, unfortunately, over attorneys in the exercise of 
their legal duty. I have testified about that, and I am 
hopeful, I hope, that the Congress will do something about 
that, because I believe that the Inspector General's office 
ought to have unlimited jurisdiction in the Department of 
Justice. We are independent, we are transparent, and there is 
no conflict of interest. And so I think that ought to be 
    Senator Whitehouse. And you make your findings public.
    Mr. Fine. Exactly. We are transparent. We transparently 
provide to the Congress and others the basis of our findings, 
and we do that to the extent possible. And so I think that is 
important. I believe our office ought to have jurisdiction 
throughout the Department of Justice.
    Senator Whitehouse. Well, hopefully we will have a chance 
    Senator Coburn. Mr. Chairman, I have got a markup, and we 
usually run this Committee by the early bird rule. I was here 
before Senator Whitehouse, so I would like very much to be 
recognized so I can go to that markup.
    Senator Whitehouse. Actually, nobody was here before me.
    Senator Coburn. Well, you were not here when I got here.
    Senator Whitehouse. I was here when you got here.
    Senator Coburn. You were not sitting there.
    Senator Whitehouse. I was sitting here when you got here. I 
have been here the whole time. I was here before the Chairman. 
I greeted the witness 10 minutes before the hearing.
    Senator Coburn. Either way, may I be recognized?
    Senator Cardin. Of course.
    Senator Whitehouse. I yield.
    Senator Cardin. Senator Coburn.
    Senator Coburn. Thank you.
    Thank you for your report. Is there anything in your 
investigation here--what I am seeing is low-level 
politicization and incompetence above it. Is there anything to 
suggest that there was some grand scheme led by the Attorney 
General to politicize this in multiple ways?
    Mr. Fine. Well, first I would not call it low level. These 
are high officials in the Department of Justice. These are the 
White House Liaison, the Chief of Staff--
    Senator Coburn. I will change my characterization. Is there 
anything--what I am trying to get at, is there anything in your 
investigation to say that the Attorney General had plans to 
politicize the Justice Department?
    Mr. Fine. In terms of these two reports, we did not find 
that the Attorney General knew about the improper political 
    Senator Coburn. But you would agree that there was 
certainly incompetence at the level of management for this to 
be going on with an Attorney General not being aware of it?
    Mr. Fine. As I stated before, I agree that there should 
have been--there was inadequate supervision. They should have 
known what was going on here. They should have more closely 
supervised the junior people who were elevated to very high 
positions, and I think that was part of the problem.
    Senator Coburn. And you feel fairly comfortable that the 
things that needed to be changed within the Justice Department 
in light of your findings have, in fact, been changed in terms 
of procedure, monitoring, and supervision?
    Mr. Fine. We have made recommendations. The Attorney 
General has agreed to implement those recommendations. We will 
continue to monitor that. But he has agreed with the actions 
that we suggest should occur. It does require vigilance. It 
requires not simply changing a procedure, but making sure the 
procedures are followed, and I think that is important as well.
    Senator Coburn. It requires management.
    Mr. Fine. Yes, it does.
    Senator Coburn. Which was the reason that the last Attorney 
General left because of inept management.
    I have several other questions. I will submit them for the 
record because of the time constraints here. I appreciate the 
hard work and I appreciate the transparency that you bring. 
Inspector Generals are very important because they form the 
balance to stop--nobody wants politicization of these types of 
positions. And the fact that we have an IG and we have 
strengthened that, and we are going to continue to strengthen 
that, is very hopeful and it gives a great breath of fresh air 
to the American people that they can see transparently what is 
functioning well, as well as what is not functioning well 
within our Government, and I thank you.
    Mr. Fine. Thank you.
    Senator Cardin. Mr. Fine, first let me thank you for your 
report. The Inspector General was created in order to provide 
an independent review of compliance with rules and laws. And as 
you point out, your findings are open to the public, and I 
think it is extremely important work, and I thank you very much 
for what you have done.
    You have indicated that steps have been taken by the 
Attorney General to correct the circumstance to make sure that 
political considerations are not involved in these decisions. I 
want to go a little bit further. You made six specific 
recommendations. Are you confident that all six are being 
    Mr. Fine. The steps are being taken to implement those 
recommendations, yes.
    Senator Cardin. And you will be monitoring to make sure 
that they are, in fact, implemented?
    Mr. Fine. Yes.
    Senator Cardin. Now, there are other areas in which the 
Department of Justice could be influenced on a political agenda 
where they should not in the hiring of career employees and the 
agenda of certain agencies that are supposed to operate without 
political interference. Does you report go into that at all? 
And has that come up in any of your discussions with the 
Department of Justice as to the extent of political involvement 
in the historic roles of the Department of Justice?
    Mr. Fine. Well, I know--perhaps one of the things you are 
referring to is the concerns about selective prosecution and 
prosecutions made on political decisions.
    Senator Cardin. Correct.
    Mr. Fine. And that relates to the question that Senator 
Whitehouse asked me earlier, and that is, that is a matter that 
the Office of Professional Responsibility has jurisdiction to 
handle, and my understanding, publicly stated, is that they are 
looking into those things. So that is something that we will 
have to await their conclusions. I believe that we ought to 
have jurisdiction, but we do not, so we will see what the 
Office of Professional Responsibility results are.
    Senator Cardin. So you are not involved in any of that 
because of jurisdictional issues?
    Mr. Fine. Yes.
    Senator Cardin. You know, there is also the matter of the 
manner in which U.S. Attorneys were dismissed, the type of 
cases that they were involved with. Those are all areas that 
you are not directly involved in.
    Mr. Fine. No. That issue we are involved with. We are 
looking at the removal of U.S. Attorneys that happened. We are 
doing it jointly with the Office of Professional 
Responsibility. We are looking at the reasons why they were 
removed, and we are doing a thorough investigation of that 
matter. And we will provide that report when it is completed.
    Senator Cardin. Could you give us an indication as to the 
timing of the release of that report?
    Mr. Fine. I really cannot and should not. I have been the 
IG for 8 years, and I am often asked that question, and I am 
often wrong. What I can say is that we are taking this very 
seriously. We are moving as expeditiously as we can. When it is 
completed, we will release it.
    Senator Cardin. Could I just get certain assurances that we 
will get reports before the end of this year?
    Mr. Fine. I would hope so, but, again, we are going to take 
the evidence wherever it leads in whatever fashion it is, and 
we will do as expeditious a job as we can. And so I think I 
really ought to leave it at that, Senator Cardin. I understand 
your question and your reason for wanting to know, but it is 
probably better for me to just simply say that.
    Senator Cardin. Could I ask your assurance that if there 
are delays put in your path by the Department of Justice or the 
administration, that would be brought to our attention?
    Mr. Fine. We will not be shy about raising any concerns 
with problems or delays that are caused by outside entities.
    Senator Cardin. I take that as a yes.
    Mr. Fine. Yes.
    Senator Cardin. I appreciate that. You have indicated that 
you are concerned about the jurisdiction of the Inspector 
General. We have also talked about the civil service system. Is 
there a need or recommendations for change in the civil service 
system's laws in order to strengthen the probability this will 
not happen again?
    Mr. Fine. I do not think so. I think the laws are there. 
They need to be enforced. They need to be adhered to. They need 
to be understood. They need to be managed. I think the problem 
was not necessarily with the law. The problem was with the 
application of the law by the people in the Department of 
Justice, which is very troubling that the Department of Justice 
would not adhere to the law.
    There is one issue that I do think the Department of 
Justice needs to clarify and make clear, and that is, when is 
it appropriate to consider political factors in detailees for 
positions in leadership offices. Some positions are 
policymaking, could be filled by political appointees. And if 
it is a detailee that is being considered, can you use 
political affiliations? There are others that are clearly not 
policymaking and should not in any way be considered a 
political position, for example, ones in the Executive Office 
for U.S. Attorneys that we have described. That ought to be 
made clear which positions and which circumstances is it 
appropriate to consider political affiliations in detailees for 
positions in the leadership offices. So that is one thing the 
Department ought to do. We recommended that in our report. They 
said they are going to do that.
    Senator Cardin. So can we count on your following up to see 
how they, in fact, respond in doing that? I take it that is 
still an open issue. It has not been--
    Mr. Fine. It has not been done, but, yes, you can count on 
us to followup and monitor that.
    Senator Cardin. And let me just underscore the point that I 
think Senator Whitehouse was pursuing. You have a 33-year-old 
ideologue that was able to rule the day in the Department of 
Justice in which senior Justice Department officials either did 
nothing or just refused to take action knowing full well that 
political considerations were being used. How was that allowed 
to continue? What was the motivation here? Did your report 
reflect that? Was this a thought that the White House was 
directing this to occur and, therefore, leave it alone? Or was 
it a concern that certain people would infiltrate the 
Department of Justice that they did not want to see in the 
Department of Justice? Or was this a reward system for 
political loyalty? I mean, how was this allowed to continue in 
an agency that has such a long history of excellence and being 
nonpartisan and carrying out justice?
    Mr. Fine. I think it was allowed to occur because people 
were put in very high positions without very much experience 
and without very much knowledge of the positions.
    Senator Cardin. Put in high positions by whom?
    Mr. Fine. By people in the Department of Justice, by 
others. And I think that they did not understand the traditions 
of the Department of Justice. The tradition of the Department 
of Justice is that it is different, it is special. It is not 
partisan. And when you come to the Department of Justice, you 
put that behind you, particularly in career positions, and that 
you do not try to infuse those kinds of decisions with 
political considerations, particularly hiring of career people. 
And the people who came did not understand that, did not 
appreciate that, and as I stated before, were not monitored and 
were allowed to run uncontrolled, which was very, very 
troubling. And then these actions happened, and the people at 
the top, including Attorney General Gonzales, said he was not 
aware of it. Well, that is a problem. That is a very 
significant problem. And I think that it has created damage to 
the Department of Justice that I believe and hope we will get 
over, but it is very troubling.
    Senator Cardin. Senator Schumer?
    Senator Schumer. Thank you, Mr. Chairman, and I apologize 
to the witness. We have a Joint Economic Committee hearing at 
the same time, but I took a brief break because I wanted to be 
here. And I want to thank you, Mr. Fine, for staying on top of 
things and doing your job as IG, which I know requires a degree 
of independence and a degree of courage, and I think you have 
shown both. I have a few quick questions.
    Although we have long known about the unprecedented 
political decisionmaking in the Justice Department, the details 
of this report are a new low. Over a year ago, when I held the 
first hearing to look into the suspicious firing of several 
U.S. Attorneys, none of us knew that this Committee's 
investigation would implicate much of the Department's senior 
leadership. We heard early on that Monica Goodling might be one 
of the bad actors. That is why I urged Senator Leahy to add her 
to the list of witnesses to subpoena, and now we are all 
rightly appalled by this account of how decisions in the 
Justice Department were made based on political considerations 
rather than individual qualifications. And here we have a great 
civil service. Senator Whitehouse and Senator Cardin know this 
well, and--I hope they are not leaving because of my speeches. 
No, I know we have a vote so go right ahead.
    They know this well. But I just find it despicable that 
senior Justice Department aides broke the law, sullied the 
reputation of the Department and of thousands and thousands of 
people through Democratic and Republican administrations alike 
who just labored and did the right thing, and now may be 
getting off without punishment because they left the Department 
even though they resigned in disgrace and at the height of a 
    But these revelations are not just a blow to the 
Department's reputation, but they also affect our ability to 
keep the country safe, it seems, because as you report, Ms. 
Goodling would not let a former U.S. Attorney from Western New 
York, Mr. Battle, hire his own assistant because she believed 
that his preferred candidate had not proved himself to the 
Republican Party.
    Another qualified New York candidate, a winner of the 
Attorney General's award for exceptional service, was rejected 
for a top Justice Department counterterrorism position because 
of his wife's Democratic political affiliation. Because of 
this, a vital counterterrorism position was filled by a person 
at the Department with no experience.
    So this is not just politics. This is our own safety. When 
you have less qualified people--if we had politics and equally 
qualified people, it would be one thing. But you have less 
qualified people trumping more qualified people because of 
their political affiliation, and that hurts every one of us in 
terms of safety and security and the jobs of the Justice 
    And so most members of the Department, for instance, 
believe that that person in counterterrorism was undeniably 
unqualified, but they met Ms. Goodling's ideological test. That 
is beyond disgraceful, in my view.
    One of the most shocking conclusions in your report is that 
someone like Monica Goodling who politicized the appointment of 
Assistant U.S. Attorneys, immigration judges, and even 
counterterrorism positions, may not face any real consequences 
for her actions simply because she already left the Department. 
Under current law, even though these people broke Federal civil 
service laws and trampled on the Department's own standards, 
they need only change jobs to escape real accountability. It 
could be that someone could leave while you are doing the 
investigation or even the day before you issue your report and 
escape any punishment whatsoever.
    So let me ask you this, Mr. Fine: Should such blatant 
politicization and illegal activity be subject to some criminal 
punishment so there would be ultimately accountability? In your 
view, would a criminal penalty--say a misdemeanor--help prevent 
such behavior in the future, work as a more effective 
deterrent, and provide better accountability? I am sure it 
sticks in many people's craws that these were horrible things 
that were done and because simply you resign from the 
Department you escape any punishment.
    Mr. Fine. Well, let me talk a little about the premise of 
the question, and then I will get to whether the law should be 
changed, my view on that.
    I am not sure it is true to say that she escaped any 
accountability, any punishment. As I discussed with Senator 
Whitehouse earlier, people did leave the Department so they 
cannot be disciplined by the Department, but we have 
recommended that they never get a job with the Department 
again, hopefully never with the Federal Government again, that 
they consider this report if they ever do apply.
    They have been exposed. Their conduct has been exposed in a 
transparent way for all to see. And then there may be--I am not 
saying there is, but there may be appropriate bar sanctions 
possibly for attorneys who have committed misconduct and may 
have violated a bar rule. And so the bar may look into that. 
There is no criminal punishment that we see for this conduct.
    Now, should there be criminal punishment? I am not sure. To 
criminalize violations of civil service law might expose a lot 
of people to potential misdemeanors in circumstances not like 
that. So I would have to think more carefully about that. But 
my initial reaction is we have civil law and criminal law, and 
there ought to be that separation.
    But I recognize the concern about accountability, and I 
believe that the comments that I made about the premise will--
    Senator Schumer. And, you know, even aside from discretion, 
in other words, a minor violation without real intent, 
different than this, might not be prosecuted. I am sure there 
is a way to draft the law to make it a misdemeanor if it was 
repeatedly done. I mean, there are ways to set standards so not 
every civil service violation would be a misdemeanor, don't you 
    Mr. Fine. Yes, but when you draft it that way, I think you 
can sweep in conduct that you may not want to have 
criminalized. There are a lot of difficult issues in the civil 
service law. This one I do not think was a difficult issue. But 
you make a statute to cover the civil service law.
    Senator Schumer. It is something I am exploring, and I 
would like to continue the dialog with you.
    Mr. Fine. Certainly.
    Senator Schumer. OK. One other--did we start our vote?
    Senator Whitehouse. [Presiding.] We have not started the 
    Senator Schumer. We have not started the vote. OK, good. So 
this is about burrowing. As you may know already, Senator 
Feinstein and I wrote a letter to the Attorney General last 
week, and this is before your report came out. In the letter we 
asked the Attorney General to investigate instances of 
burrowing in the Department where political appointees are then 
given career positions and continue to assert influence during 
a future administration, even though that candidate may not be 
the most qualified.
    Now, our letter was based on a report by the GAO that found 
the Department was engaged in improper hiring procedures, like 
refusing to award our war veterans consideration they deserve 
and are legally due. So we are acting--that is, Senator 
Feinstein and I--proactively to ensure that career positions in 
the Federal Government are filled by the best individuals 
available and in accordance with Federal law.
    Did you find any overlap between the GAO findings and the 
particular instances of politicization in hiring that you have 
been investigating?
    Mr. Fine. Well, we did not look at that issue of burrowing, 
but I think sort of the same principles apply and the same 
concerns apply; that is, if you are using any considerations 
other than a fair and open competition and merit-based, based 
upon the skills, knowledge, and ability of someone, then there 
can be those kinds of problems.
    I do know that the GAO is opening a review of this and has 
done reviews in the past. So I think that is important to 
maintain transparency and scrutiny on that subject, and I think 
that is an important issue.
    Senator Schumer. Thank you. My time has expired.
    Thank you, Mr. Chairman.
    Senator Whitehouse. Thank you, Senator Schumer.
    Just to followup on the discussion with Senator Schumer and 
with respect to the consequences of these violations of Federal 
law, first of all, can you identify what bar rules might have 
been broken. I did not see--this is an OIG/OPR joint report, 
    Mr. Fine. Right.
    Senator Whitehouse. I did not see OPR making any referral 
to disciplinary counsel as a result. So I am a little confused 
about what disciplinary consequences lawyers might face for 
their role in the administrative process of hiring, and if you 
are confident that there might be those processes, why the OPR 
side of this did not make any referral to local disciplinary 
    Mr. Fine. My understanding is--and I had discussions with 
OPR about this--that OPR intends to, and we will participate in 
a notification of the bars of individuals who are found to have 
committed misconduct, for them review the conduct. Now, I do 
not believe OPR has done a lengthy review of this and say which 
exact rule, but it does intend to, and I think it is 
appropriate to notify the bars of the individuals who were 
involved. In fact, I think some of them have already been 
notified. I have read that individuals have provided our 
reports to various bars for the bar to look at.
    In terms of the rules, I am not an expert in the area of 
potentially Rule 8.4, which talks about the administration of 
justice and acts going to the fitness of an attorney to 
practice law. I am not saying that necessarily does apply, but 
I think there are things that ought to be reviewed and looked 
at, and the experts in this area ought to do that.
    Senator Whitehouse. OK. And following up on my discussion 
with you and Senator Schumer's discussion with you about not 
only consequences but also, I guess, deterrent effect or 
motivations, if you are not enthusiastic about any criminal 
penalty, even at the misdemeanor level, for a deliberate 
violation of the civil service hiring laws, would you think 
that it might make sense to strip from individuals hired 
pursuant to a deliberately flawed process the protection of 
those civil service laws until they had gone through a 
legitimate process? It strikes me that if something like that 
were set up--you know, this is not done just for fun. This is 
not done just because somebody has an idle hour. This is done 
in order to achieve political ends. And the end is to put 
certain people with certain ideology in certain positions. And 
if the folks who are going about doing that were understood 
that by virtue of distorting and compromising the civil service 
hiring process, they are actually denying the folks that they 
would be planting in the civil service positions the benefit of 
civil service protection, it would seem to me that it would 
operate as a counterincentive to these sorts of attempts to 
subvert the civil service system. Would you--
    Mr. Fine. I would have to think more about that. That is an 
interesting proposition.
    Senator Whitehouse. Take the prize out of the game, 
    Mr. Fine. Yes. I am not sure I am ready to answer that 
question off the cuff. It is an interesting proposition. I 
would say that I am not sure that all of the individuals who 
were selected knew about the improper procedure that was used. 
Maybe some of them did. I am not sure all of them did.
    Senator Whitehouse. And to a certain extent, it would be 
their bad fortune to have been on the losing end of this. But 
from a structural point of view, it would take away the 
incentive, the prize, if you will, of the game for those who 
are manipulating or compromising the civil service process to 
political ends.
    Mr. Fine. That is one way to do it. I would hope that the 
Department would do it directly and to prevent the people from 
actually doing this so we do not have to get to this, the fact 
review, but I understand your point.
    Senator Whitehouse. The last question that I have has to do 
with--you indicated on a number of occasions in this report 
that people gave statements to you in the course of their 
interviews that you described as ``inaccurate,'' and in some 
cases described rather pointedly as ``inaccurate,'' and in what 
looked to me to be circumstances in which it was a little hard 
to believe that it was an innocent mistake. And my question to 
you is: Are the interviews that you conduct within the ambit of 
18 U.S.C. 1001, the False Statements Act? And do you have a 
process for evaluating whether inaccurate statements provided 
to you in these interviewed amount to a false statement under 
that Act? And what is that process for such inaccurate 
statements? How do you get from you just saying it is 
inaccurate in the report to a referral of some kind for some 
prosecuting official to look at whether that criminal law was 
    Mr. Fine. Well, they are within the ambit of Section 1001; 
a false statement to an OIG investigator is covered by that 
statute. And we do analyze that. We analyze whether the 
evidence is sufficient to prove beyond a reasonable doubt that 
the statement both was inaccurate, the very specifics of the 
statement--and you, being a former U.S. Attorney, know the 
difficulty. You have to be very precise about what the question 
is and what the answer is, and it has to be inaccurate and 
false in all respects. And then we go to the intent of the 
person, whether it was a mistake or whether they knew it was 
inaccurate and we can prove that beyond a reasonable doubt.
    So the same processes that an Assistant United States 
Attorney would use--and we do have Assistant United States 
Attorneys, very experienced ones, on our staff who have done 
this over their careers, do that analysis.
    Senator Whitehouse. So is it safe, then, to conclude from 
the report limiting itself to only describing these statements 
as inaccurate and not making any further referral or not 
discussing any further whether the statements might merit 
prosecution, that you did, in fact, look at that and that the 
conclusion that you drew was that these statements, however 
inaccurate, did not amount to what an Assistant U.S. Attorney 
preparing a charge would consider adequate to bring that charge 
under 18 U.S.C. 1001?
    Mr. Fine. That is correct.
    Senator Whitehouse. OK. Very good. Well, we have this vote, 
and everybody has gone to vote, so I probably better do the 
same. I would like to, with unanimous consent, insert into the 
record on behalf of Chairman Leahy a number of editorials from 
papers around the country, including the New York Times, the 
San Francisco Chronicle, the Washington Post, and USA Today 
that have editorialized against the partisanship of the 
Ashcroft and Gonzales regimes and called upon the current 
Attorney General to take action in response to these reports 
and hold people accountable, and a selection of these will be 
put into the record.
    The record will remain open for 1 week in the event anybody 
wishes to add to it, and if there is nothing further, again, 
with my grateful appreciation not only to you but also to the, 
I assume, very busy and hard-working staff members of the 
Office of Inspector General of the Department of Justice, you 
have done your own office and the Department, I think, 
considerable good with this report. And I hope you feel 
considerable pride in it. I think that many of us do. Thank 
    Mr. Fine. Thank you.
    Senator Whitehouse. The hearing is adjourned.
    [Whereupon, at 11:20 a.m., the Committee was adjourned.]
    Questions and answers and submissions for the record