[Senate Hearing 110-550]
[From the U.S. Government Publishing Office]
S. Hrg. 110-550
POLITICIZED HIRING AT THE DEPARTMENT OF JUSTICE
=======================================================================
HEARING
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
RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
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
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STATEMENTS OF COMMITTEE MEMBERS
Page
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
WITNESS
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
POLITICIZED HIRING AT THE DEPARTMENT OF JUSTICE
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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.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
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
Department.
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
competence.
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?
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
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.
[Laughter.]
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
leave.
STATEMENT OF HON. JOSEPH R. BIDEN, JR., A U.S. SENATOR FROM THE
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.
[Laughter.]
STATEMENT OF GLENN A. FINE, INSPECTOR GENERAL, DEPARTMENT OF
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
positions.
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
Government?
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
appointments?
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
questioned?
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
happened.
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
involved--
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
promoted?
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
Columbia?
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.
[Laughter.]
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
reflects.
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
hired?
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
changed.
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
to--
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
considerations.
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
implemented?
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
scandal.
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
Department.
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
think?
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
vote.
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,
correct?
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
counsel?
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,
basically.
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
violated?
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
you.
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
follow.)
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