Bush's Department of Just Us
The US Department of Justice is headed by the US Attorney General and provides primary legal services for the Government of the United States, "To enforce the law and defend the interests of the United States according to the law." It is, therefore, not the personal legal representative of the President, to represent the President's interests.
Representing the interests of the United Sates is a high calling and deserves the talents of the best in the land. To that end, the Department of Justice has established a variety of programs to attract new lawyers of the highest caliber to serve. The programs are highly sought after and ruggedly competitive.
The Washington Post has described one of the programs, the Honors Program:
The OIG/OPR report has now been released and it found the Bush's DOJ weeded out lawyers who might not share its political agenda, in violation of civil service laws. Under President Bush, the Department of Justice has been turned into the Department of Just Us.
Some selected and perhaps rearranged and emphasised excerpts from the 115 page report follow:
Positions for DOJ attorneys fall into two broad categories: political and career. It is not improper to consider political or ideological affiliations when hiring for DOJ political positions. However both DOJ policy and civil service law prohibit discrimination in hiring for DOJ career positions on the basis of political affiliations. This prohibition applies to attorneys hired for permanent positions through the Honors Program as well as summer interns hired through the SLIP, because these are considered career positions. The Department’s policy on nondiscrimination is contained in the Code of Federal Regulations, Section 42.1(a) of 28 C.F.R. Part 42, Subpart A.
While the regulation does not define “political affiliation,” courts have considered political affiliation to include “commonality of political purpose, partisan activity, and political support.” See, e.g., Curinga v. City of Clairton, 357 F.3d 305, 311 (3d Cir. 2004).
In addition to Department policies, the Civil Service Reform Act (CSRA) prohibits the Department from discriminating in hiring for career positions based on political affiliation. For example, the CSRA states that federal agencies must adopt hiring practices for career employees in which selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity. 5 U.S.C. § 2301(b).
"employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation . . . .” 5 U.S.C. § 2301(b)(2).
These policies and laws do not define “political affiliation.” Nonetheless, identifying candidates as “liberal” or “conservative” based on the activities or organizations with which they are affiliated can be used as a proxy for political affiliation and thus can violate CSRA’s prohibition.
In 2002, the Honors Program and SLIP hiring process was fundamentally changed as a result of recommendations from a Working Group of senior officials from the offices of the Attorney General, Deputy Attorney General, and Associate Attorney General.
rather than sending career Department attorneys to various locations across the country to conduct regional interviews, all Honors Program candidates would be brought to Washington, D.C., at the Department’s [taxpayers'] expense, for interviews. According to the members of the Working Group we interviewed, this change was intended to allow more Department attorneys, particularly political appointees in leadership positions, to participate in the interview and hiring process.
in July 2002 the Attorney General’s Working Group directed that component heads appoint someone from their front offices to coordinate Honors Program hiring in their components.
a Screening Committee, composed of several members of the Working Group, reviewed and approved the candidates who the components selected for interviews
in general the components did not know who served on the Screening Committee or what criteria it applied in reviewing candidates. In addition, the Screening Committee gave no reasons or explanations for its decision to deselect a candidate from the list of those to be interviewed.
The changes implemented in 2002 remained in effect until 2006.
That changed in 2006 when OARM reported that many complaints surfaced after the Screening Committee took weeks, rather than the normal 2 days, to conduct its review, and deselected an unusually large number of seemingly qualified Honors Program and SLIP candidates.
As a result of the complaints and controversy in 2006, the Department changed the hiring process in 2007. Among other changes, the screening function performed by political appointees during the previous 4 years was replaced with a Screening Committee composed of career employees.
some members of the Screening Committee in 2006 used liberal and conservative affiliations as a proxy for political affiliation.
We found that, in general, the major criteria considered by the components from 2002 through 2006 included grades, quality of law school, judicial clerkships, law review experience, work experience, and a demonstrated interest in public service. Several of the components’ selecting officials told us that they considered it a positive factor when a candidate had a federal clerkship, particularly a federal appellate clerkship. In addition, some components looked for experience that indicated an interest or expertise in the type of law practiced by that component.
OARM Director Louis DeFalaise said that he was aware of general complaints in 2002 that the process had been taken away from the career employees and transferred to political appointees (with the implication that the changes had politicized the process), although DeFalaise said no one specifically complained to him
We conducted extensive data analysis of the applications of Honors Program and SLIP candidates who were approved or deselected by the Screening Committee in 2002 to detect any patterns in the approval and deselection rates between candidates with differing affiliations.
The data indicates that the [Honors] candidates with liberal affiliations were deselected at a much higher rate (15 out of 18) than candidates with conservative affiliations (0 out of 5) or candidates with neutral affiliations (11 out of 48), even though all candidates met the same criteria.
We found that all 7 [Honors] applicants who indicated that they were American Constitution Society members were deselected by the Screening Committee for interviews, while 2 of the 29 applicants who indicated that they were members of the Federalist Society were
deselected.
The proportion of Democratic Party affiliated [Honors] applicants deselected by the Screening Committee was significantly higher (70 percent, or 43 out of 61) than the proportion of Republican Party affiliated applicants
The overall data [for both Honors and SLIP applicants] indicated a pattern of deselecting candidates based on political or ideological affiliations.
The 2002 Screening Committee did not maintain a record of the basis for its decisions on individual candidates, nor did it provide any explanations to the components at the time as to why specific candidates were deselected. We recognize that the passage of time has made it difficult for Screening Committee members to recall the basis for their selection or deselection decisions. After we conducted our data analysis, we contacted the 2002 Screening Committee members again for their comments on the pattern that the data revealed. Higbee stated that the data “surprised” him. Nielson said that he was not certain that he participated in the screening process. Ciongoli stated that he had no recollection of participating in the screening process.
In sum, the data showed that [the 2002] candidates with Democratic Party and liberal affiliations apparent on their applications were deselected at a significantly higher rate than candidates with Republican Party, conservative, or neutral affiliations. This pattern continued to exist when we compared a subset of academically highly qualified candidates from the three groups. However, we found no other evidence that the members of the Screening Committee intentionally considered political or ideological affiliations in making their deselections, and the Committee members all denied doing so.
We did not find evidence indicating that the Screening Committees from 2003 to 2005 used political or ideological affiliations as a basis either to accept or deselect candidates.
In contrast to the Screening Committees in 2003 to 2005, the Screening Committee in 2006 deselected many Honors Program and SLIP candidates. These deselections, made without explanation to the components, generated significant controversy within the Department. based on the results of our investigation we concluded that two of the three members of the Screening Committee inappropriately considered political and ideological affiliations in the deselection process.
Some component officials said they sought an explanation to help them decide whether to appeal the Committee’s decision or to simply understand the basis for what appeared to be inexplicable decisions to deselect candidates with high academic qualifications. Elston generally responded to these requests for explanations by stating that the deselections were made by a committee. While he told us he did not remember the basis for individual deselections, he suggested to the components at the time that poor grades and poor grammar were the reasons for most candidate deselections.
Many component employees involved in the selection process told us they were shocked and upset at the large number of candidates the Screening Committee had deselected. They said the impressive qualifications of many of the deselected candidates, together with no explanation for their deselection, led to widespread speculation that the Screening Committee considered political or ideological affiliations in deselecting candidates.
We conducted extensive data analysis of the applications of those Honors Program and SLIP candidates who had been approved or deselected by the Screening Committee in 2006 to detect any patterns in the approval and deselection rates between candidates with differing affiliations.
Overall, based on the results of our data analysis, we found that Honors Program candidates whose applications reflected liberal affiliations were deselected at more than three times the rate (55 percent) of candidates whose applications reflected conservative affiliations (18 percent) and more than twice the rate of candidates whose applications reflected neutral affiliations (23 percent). We found a similar trend when we examined a subset of highly qualified candidates.
In addition, candidates whose applications reflected a Democratic Party affiliation were deselected at a significantly higher rate (48 percent) than candidates whose applications reflected a Republican Party affiliation (27 percent) or who did not show any party affiliations (30 percent). Similarly, highly qualified candidates who had Democratic Party affiliations were deselected at a much higher rate (37 percent) than candidates who had Republican Party affiliations (7 percent) or who did not show any party affiliation (18 percent).
following deselection of 28 of 74 of the Tax Division’s SLIP candidates, a senior Tax Division attorney reviewed all the candidates’ applications and wrote in a memorandum analyzing the deselections that she was “unable to identify any legitimate reason the students were deselected.” The attorney concluded that all but one candidate who had worked for a Democrat were deselected, while all candidates who listed connections to Republican Members of Congress or the White House were approved.
A senior attorney in the Civil Division’s Appellate Branch conducted an analysis of the 59 candidates that were deselected out of the 135 candidates that were submitted by the various sections in the Division. The senior attorney wrote that, as the approval and deselections of SLIP candidates trickled out in the fall of 2006, a pattern emerged that became impossible to ignore: candidates who had worked for [Democrats] were uniformly rejected, notwithstanding some with outstanding qualifications. In fact, 12 of the 13 candidates on the Civil Division’s list who had worked for a democratic senator or representative were rejected. . . . In addition, 4 out of 5 candidates who had worked for democratic state legislators were rejected. The attorney wrote that “every candidate who had worked for GOP legislators at the state or federal level had been approved.”
Daniel Fridman began his career with the Department in December 2004. Fridman had no responsibility for or involvement in hiring prior to September 2006 when Elston assigned him to work on the Screening Committee. Elston stated that because this was the Attorney General’s Honors Program, they wanted to hire candidates who were supportive of or who had views consistent with the Attorney General’s views on law enforcement. However, Elston did not explain how Fridman would determine whether a candidate supported the Attorney General’s views.
We asked Fridman to review a sample of approximately 50 applications of deselected candidates who had outstanding academic records. Fridman said that he would have voted yes on each of the candidates. Fridman repeatedly expressed surprise that candidates for whom he voted yes, based on their grades, law school, and class rank, were in fact deselected. Fridman said that based on our informing him that these candidates had been deselected by the Screening Committee, Elston must have sided with McDonald in deselecting these candidates.
At the end of the interview, Fridman stated: I’m still kind of reeling from the résumés that you . . . showed me . . . people from Harvard, Yale, Stanford who were deselected. There were a lot of them. And I am shocked and very disappointed about that. . . . I didn’t know that this was going on. I thought that this was being conducted in good faith. I was conducting my reviews in good faith and making my recommendations based on merits and what I thought were the people [who] were going to be the most qualified candidates for the Department. And I’m sickened by this. And I’m not happy that I’m associated with this.
McDonald graduated from law school in May 2003. McDonald was hired as a political appointee as Counsel to Acting Associate Attorney General Mercer and began work on September 5, 2006. Her duties as Counsel included assisting with oversight of the grant issuing components. She was also assigned by Mercer to work on the Honors Program/SLIP Screening Committee after she had been at the Department only a few weeks.
No one we interviewed (including Elston, Fridman, and Mercer) said they gave McDonald any instructions on how to conduct her review of Honors Program and SLIP applications. In a letter to OPR and OIG investigators in which he reiterated McDonald’s unwillingness to be interviewed, McDonald’s attorney stated that she was given no instructions on how to conduct the review, “except for limited high level statements.” McDonald’s attorney did not name the source of this guidance, and he declined to allow McDonald to be questioned about this issue.
Fridman and Elston reported that McDonald conducted Internet searches on the candidates using Google and MySpace. Our search of McDonald’s Internet activities on her Department computer during October and November 2006 confirmed that she conducted searches on many of the candidates’ names. We were able to determine that, among other things, McDonald searched for organizations to which candidates belonged, read blogs by or about candidates, and searched Westlaw, school websites, and school newspapers for articles by or about candidates.
Elston and Fridman both remembered McDonald circling items on candidates’ applications and writing remarks about those items, including employment or affiliations with organizations, judges, law school professors, and legislators who could be considered liberal. In the November 29 e-mail, McDonald wrote that three of the eight candidates were “Unacceptable” based on her objections to the candidates’ ideological affiliations. She objected to one candidate on the basis of the organizations he belonged to and to statements in his essay that she considered “leftist.” McDonald noted that she deemed another candidate unacceptable because the candidate was “active in ACS.” However, we determined that this candidate’s application did not mention his membership in the American Constitution Society or ACS.
McDonald found another candidate questionable because of the candidate’s grammar, writing style, and grades, but noted: “In her favor, she refers to wanting to work for DOJ to fulfill her goal of ‘enforcing the law.’ Leftists usually refer to achieving ‘social justice’ or ‘making policy’ or anything else that involves legislating rather than enforcing.”
Elston joined the Department in 1999 as a career Assistant U.S. Attorney In April 2006, he converted from a career employee to a political appointment. Elston told us that he initially became involved in the 2006 Screening Committee when Monica Goodling called him and asked him to lead it.
Elston confirmed that Fridman raised with him early in the review process Fridman’s concerns that McDonald was deselecting candidates based on “membership in liberal organizations, or those kind of things,” revealed in the candidate’s application or from Internet searches she conducted. Elston said he reviewed the applications Fridman noted and saw that McDonald had either circled or written comments about liberal affiliations on the applications and then voted to deselect those candidates.
Elston said he was aware that if McDonald used liberal affiliations as proxies for party affiliations to deselect applicants, that would be inappropriate. He said he thought at the time of the review process that at least “the appearance of what [McDonald] was doing was problematic.” However, Elston said he did not raise the issue with McDonald. Elston said he did not want to accuse McDonald of doing something inappropriate because he speculated that Goodling may have told McDonald to do what she was doing.
Elston said that he knew the Committee had put a lot of effort into reviewing the applications and he did not want to veto all of McDonald’s decisions. He said he often upheld her no vote, but for reasons other than the ones relied on by McDonald.
Elston acknowledged in our interview that when he became aware in the spring of 2007 of the allegations that Goodling had used political affiliations in hiring career immigration judges, “I had in the back of my mind the concern that, that some of those same things were at work in the Honors Program in hindsight.” He said he became concerned that “there was political stuff going on,” and that the Honors Program and SLIP may have been “Monica-ized.”
In addition to asking Elston about the general criteria he used, we showed Elston applications of approximately 50 highly qualified candidates who were deselected and asked him to explain the decisions. These were candidates Fridman said he believed he approved, which indicated that the two negative votes were cast by McDonald and Elston.
For example, we asked Elston about a deselected Honors Program candidate who was first in his class at Georgetown Law School, had clerked for a judge on the U.S. District Court for the Southern District of New York, was clerking for a judge on the U.S. Court of Appeals for the Second Circuit, and had been an articles editor on a law journal. He had also worked for a Democratic U.S. Senator and a human rights organization. Elston said he did not recall why this candidate was deselected. He noted that the candidate had written a note about using international law as a tool in constitutional interpretation. Elston explained that if McDonald had read the article and confirmed that the candidate was advocating the use of international law in constitutional interpretation, that would “be of concern.”
We asked Elston about another deselected Honors Program candidate who was enrolled in a joint degree program for law and urban planning at Harvard, served as an articles editor on a law journal, graduated in the top 5 percent of his undergraduate class at Harvard, and had worked on a congressional campaign for a Democrat. Elston said he remembered the applicant because he had “chuckled” at the following portion of his essay: In high school I thought that I wanted to captain a Green Peace skiff in the North Atlantic. I figured that was what serious environmentalists did, and I wanted to be a serious environmentalist. I decided later that potential martyrdom on the high seas was not for me, and rather than operate at the margins, I would prefer a job in which I could have a less antagonistic and more direct impact." When asked how he voted on this candidate, Elston said, “A lot of times when I chuckled, I said no.” Elston said he was certain McDonald would have circled items on this application. I couldn’t vote . . . with Dan all the time. I mean, if Esther felt very strongly and it came though clearly on a résumé, I gave that weight. . . . You can review the application package and come away with a, with a conclusion that this is not a person who comes to the Department with [an] . . . evenhanded approach to environmental issues.
We asked Elston about a deselected Honors Program candidate selected by ENRD who was in the top 10 percent of his class at Lewis and Clark University, was an articles editor for an environmental journal, and had worked for Earthjustice and the Northwest Environmental Defense Center.55 The candidate indicated in his essay a strong interest in working in environmental law, including that he wanted “to serve as part of the team charged with enforcing the world’s most comprehensive environmental laws, and with defending the crucial work of our environmental and resource management agencies.” Elston commented that while he did not know anything about the organizations that the candidate worked for the impression I’m left with after a quick look at this is that this is someone who had come to the Environment Division . . . with an agenda, not with an open mind as to the best way to enforce the environment, environmental laws. . . . I had a negative reaction to that. So, I may well have voted with Esther on that one.
We asked Elston about another deselected Honors Program candidate who had graduated from Yale Law School, had been a member of the Yale Law Journal, graduated summa cum laude with a Bachelor of Arts degree from Yale College, was clerking for a judge on the U.S. Court of Appeals for the Second Circuit, had studied Arabic, and had worked with a human rights organization. Elston said he looked for people with Arabic language skills and that he also knew the judge this candidate was clerking for, so he believed he would have been enthusiastic about this candidate. Elston could not explain why the candidate was deselected and said he was “starting to get concerned that some ‘yes’ pile [applications] got in the ‘no’ pile.”
We asked Elston about a deselected SLIP candidate who was a student at Harvard Law School, graduated in the top 5 percent of his undergraduate class from the University of California, Berkeley, was an editor on Harvard’s human rights journal, had interned with a city attorney’s office and a state court judge, and had worked for 5 years in marketing before entering law school. In his essay, the candidate referred to his perception that working for the government would be “work for the people” where “principles forged by experience, prudence and moral obligation” would guide the work. In his last line of the essay, the candidate stated, “It is precisely this ability to have my principles guide my work that inspires me to be a government lawyer.” Elston thought he would have reacted negatively to that last sentence because “I believe that a civil servant enforces the law impartially [and] often times is called upon to set aside his or her own beliefs.” However, Elston stated that he had no recollection of whether he reviewed the application and voted no.
We also questioned Elston about his decisions on the components’ appeals of deselected candidates. As noted above, Elston alone decided the appeals submitted by the components. Elston denied component appeals of 16 of the 32 Honors Program candidates and 13 of the 18 SLIP candidates who had been initially deselected. Because many of the candidates whose appeals were denied had strong academic credentials, we showed Elston some of those candidates’ applications and asked him to explain his decisions.
Elston stated that he had a “bias against overturning the work that the Screening
Committee had done” and accordingly his “bias was to not grant appeals because to do so would undermine the departmental review process.”
We discussed with Elston appeals of specific candidates. For example, we asked Elston why he denied the appeals of two candidates by the Civil Division. One candidate was a student at Harvard Law School, had an undergraduate degree from Princeton University, had worked for Planned Parenthood and a Democratic Senator, and had received high praise for her work during a SLIP internship the previous summer. Another candidate had graduated sixth in his law school class from the University of Alabama, had been a member of the law review, had interned for the Public Defender Service, currently was clerking for a federal judge, and had written a paper on the detention of aliens under the Patriot Act.
Elston’s only explanation for deselecting these candidates was that he was “pretty offended” by the Civil Division’s appeal, which stated that the Division screeners had taken the responsibility of selecting candidates seriously and “given the care we exercise in making these selections, we would urge some deference to the difficult choices.” Elston said he found the appeal offensive because the Division employees were “basically saying we know better” and “you should defer to us.” However, Elston could not explain why he accepted other candidates appealed by the Civil Division but denied these two candidates. Elston recalled that Civil Division AAG Keisler subsequently made a personal appeal in a telephone call on behalf of the candidate who worked for Planned Parenthood, which caused Elston to reverse his decision and reinstate that candidate.
We asked Elston why he denied the appeal of a SLIP candidate who was a student at Yale Law School, a member of the Yale Law Journal, a Rhodes Scholar, a Truman Scholar, graduated summa cum laude from Yale College, interned with the U.S. Attorney’s Office for the Southern District of New York, had researched national security and terrorism issues for Yale Law Professor Bruce Ackerman, and had worked for the Minnesota Advocates for Human Rights, the Coordinating Council for Children in Crisis, and the Legal Services Organization’s Trafficking Clinic.58 AAG Keisler had sent Elston an e-mail indicating that this candidate was the top priority among all those SLIP candidates that the Civil Division was appealing. Elston said that this candidate “looks like a perfectly outstanding candidate, although she doesn’t say much in terms of essay that would give us a view as to why she’s interested in public service.”
We asked Elston why he denied the request of U.S. Attorney Carol Lam to interview a candidate who graduated in the top third of her class at Stanford Law School, was summa cum laude with an undergraduate degree from George Washington University, was clerking for a judge on the U.S. Court of Appeals for the Ninth Circuit, and had previously worked for the Center for the Study of Sexual Minorities in the Military. Elston said he could not recall the reasons for his decision, but thought he may have struck the candidate based on a reference in her essay that being a federal prosecutor would afford her the opportunity to exercise prosecutorial discretion in deciding what charges were appropriate and whether to offer a plea bargain.
We asked Elston about his denial of the Antitrust Division’s appeal on behalf of a candidate who was in the top 10 percent of his class at the University of Minnesota Law School, was a law review editor, graduated from the Wharton School of Business at the University of Pennsylvania, was clerking for a federal appellate judge, and listed membership in both the Federalist Society and the American Constitution Society with a comment that he was “open-minded to all points of view.” The candidate also noted in his essay that he was capable of defending positions such as the constitutionality of the “President’s NSA‘s wiretapping program” even though he “remained personally conflicted” about the program. Elston said he was “surprised” that he did not grant the appeal and could not recall the reason for his decision. Elston said that he may not have granted the appeal because this candidate was listed fourth among six candidates that the component was appealing and he may have assumed that the component listed the candidates in order of priority. However, Elston could not recall why he granted the appeals of other candidates requested by this component, including one who was fifth on the appeal list, had lower grades, attended a lower-tier law school, and had no political or ideological affiliations on his application.
We asked Elston about an appeal he denied of a candidate who was a student at Georgetown Law School with a 3.08 grade point average, who graduated in the top third of his undergraduate class at Georgetown University, and who had worked for Senator John Kerry’s presidential campaign. The candidate selected the Criminal Division as one of the components he was interested in, stated in his essay that he had “always wanted to be a prosecutor,” but that his interest in prosecuting was not “limited to rapists,” and included a paragraph that spoke highly of the role of the U.S. Attorney. Elston denied that the candidate’s work on the Kerry campaign had any negative effect on his decision. Rather, Elston said that one of the reasons he did not grant the appeal was because other than selecting the Criminal Division as one of the components he was interested in, the applicant “didn’t express an interest in the Criminal Division.” the Division “doesn’t prosecute sex offenders” and “does very different things than U.S. Attorneys’ Offices.” We note that Elston’s statement that the Criminal Division does not prosecute sex offenders is incorrect. Elston also said that his grades were not impressive and that he used too many exclamation points (we found three on the three-page application),
We also asked Elston about a SLIP candidate who was a thirdyear student at Yale Law School, had secured a clerkship on the U.S. Court of Appeals for the Ninth Circuit for the fall of 2007, had a master’s degree in history from Harvard University, graduated cumlaude from Yale College, had successfully served as a SLIP with the Department, and had a security clearance. The candidate’s application also stated that she had worked for a Democratic Congressman and had worked at the Yale Lowenstein Human Rights Clinic on human rights issues “arising from the war on terror.” Elston was unable to say why the candidate was deselected. Elston said he remembered being moved in a positive way by the personal essay the candidate had written about some difficulties in her childhood. However, Elston said he found this candidate’s essay “a little bit troublesome” because she said she wanted to work at the Department where she would “be able to consider both the needs of my client and also what is best for my country.” Elston said that “line attorneys in the Department of Justice don’t get to indulge themselves [by] deciding for themselves what’s best for the country.” Nevertheless, Elston said he did not think that statement in the essay would constitute a reason to disqualify somebody with an outstanding record and an otherwise great essay.
We asked Elston why he denied the appeal of a SLIP candidate who was a student at Stanford Law School, an editor on the Stanford Journal of International Law, President of the Stanford International Human Rights Association, and had graduated summa cum laude from Northwestern University. Elston said there was nothing familiar to him about the application so he could not explain why he did not approve it. However, on reading the applicant’s essay when we showed it to him, Elston said that he had a negative reaction to her statement that working for the Department would stimulate her conscience as well as her brain and allow her to work on cases that she cared about.
The evidence demonstrates that McDonald used inappropriate criteria in her evaluations. The November 29, 2006, e-mail from McDonald to Elston and Fridman opining on ATF SLIP candidates is direct evidence that McDonald inappropriately evaluated candidates based on the candidates’ political or ideological affiliations.
McDonald wrote that she voted against candidates because their essays used “leftist commentary and buzz words” such as “environmental justice,” “social justice,” “making policy,” or “anything else that involves legislating rather than enforcing.” She also expressed disapproval of candidates’ affiliations with liberal organizations such as the American Constitution Society, the Poverty and Race Research Action Council, Greenpeace, and Greenaction. Her remarks in the e-mail about “leftist commentary” suggested that this was not an isolated incident or the first time she had applied these criteria. Moreover, Fridman and Elston both told us that McDonald’s comments in the November 29 e-mail were consistent with other comments she made in her review of Honors Program and SLIP applications. Fridman also told us that McDonald circled items and expressed concern about applications that indicated a candidate had worked for a judge, law professor, or legislator she considered liberal, was a member of or had worked for a liberal organization, or expressed views in a law review article that were not entirely consistent with positions taken by the current administration. Elston also acknowledged that McDonald appeared to have considered political or ideological affiliations in her review of applications.
Based on the results of our investigation, we concluded thatMcDonald committed misconduct and violated Department policies and civil service law by considering political or ideological affiliations in assessing Honors Program and SLIP candidates.
However, we believe the most significant misconduct was committed by Elston, the head of the Screening Committee. Elston failed to take appropriate action when he learned that McDonald was routinely deselecting candidates on the basis of what she perceived to be the candidates’ liberal affiliations. We also concluded that Elston deselected some candidates – and allowed the deselection of others – based on impermissible considerations. after he became aware early in the screening process that McDonald was rejecting candidates based upon what she perceived to be their liberal affiliations, he did not discuss that impropriety with her.
Elston told us that he decided not to talk to McDonald about the criteria she was using because even if she was rejecting candidates based on their liberal affiliations, he and Fridman could overrule her. Elston admitted, however, that he frequently gave deference to McDonald’s decisions because he could not always vote against her
we concluded that Elston violated federal law and Department policy by deselecting candidates based on their liberal affiliations. First, the data analysis indicates that highly qualified candidates with liberal or Democratic Party affiliations were deselected at a much higher rate than highly qualified candidates with conservative or Republican Party affiliations.
Second, Elston admitted that he may have deselected candidates in a few instances due to their affiliations with certain liberal causes. Elston also was unable in specific cases to give a credible reason as to why highly qualified candidates with liberal or Democratic Party affiliations were deselected.
While Elston generally denied that he considered political or ideological affiliations in evaluating candidates, he admitted when questioned about certain candidates that he considered aspects of those candidates’ ideological affiliations in his evaluation. For example, Elston admitted that in two instances he would have voted with McDonald to deselect the candidates based on their affiliations with pro-environment causes because he did not want the candidates coming to the Department “with an agenda” or without “an evenhanded approach” to environmental issues.
In addition, Elston consistently was unable to provide credible explanations as to why he denied the appeals of the highly qualified candidates who had liberal or Democratic Party affiliations. His proffered reasons were also inconsistent with other statements he made or actions he took.
Elston tried to minimize his role in selecting candidates when he was questioned by others about the Committee’s decisions. Elston frequently explained that other Committee members had been responsible for the decisions and described his role as a conduit. However, the evidence demonstrated that he was casting the deciding vote on a significant number of candidates that Fridman had approved and McDonald had rejected.
We believe that McDonald’s and Elston’s conduct constituted misconduct and also violated the Department’s policies and civil service law that prohibit discrimination in hiring based on political or ideological affiliations.
In addition, we believe that various employees in the Department deserve credit for raising concerns about the apparent use of political or ideological consideration in the Honors Program and SLIP hiring processes. For example, Daniel Fridman deserves praise for reporting his concerns about the process in 2006 to both his supervisor and Elston and for avoiding the use of improper considerations in his review of candidates for the Honors Program and SLIP. A few DOJ political employees also objected to the apparent use of political or ideological considerations in the hiring process, such as Assistant Attorneys General Peter Keisler and Eileen O’Connor, and they should be credited for raising their concerns. Certain career employees, particularly in the Tax Division and the Civil Division, also pressed concerns about the hiring process. By contrast, we believe that others in the Department, such as Acting Associate Attorney General William Mercer and OARM Director Louis DeFalaise, did not sufficiently address the complaints about the deselections.
Other reports on this topic:
Representing the interests of the United Sates is a high calling and deserves the talents of the best in the land. To that end, the Department of Justice has established a variety of programs to attract new lawyers of the highest caliber to serve. The programs are highly sought after and ruggedly competitive.
The Washington Post has described one of the programs, the Honors Program:
The honors program, established during the Eisenhower administration, is a highly regarded recruiting program that attracts thousands of applicants from top-flight law schools for about 150 spots each year and has been overseen for most of its history by senior career lawyers at Justice.As that WaPo article mentioned, Bush's Attorney General John Ashcroft, and other political appointees in the department, highjacked the recruitment effort from the career lawyers and put it under the thumb of political commissars:
The changes alarmed many current and former Justice officials, who feared that the Bush administration was seeking to pack the department with conservative ideologues. Many law school placement officers said in 2003 that they noticed a marked shift to the right in the students approached for honors program interviews.The career lawyers pushed back, and eventually engineered an independent review of the situation, conducted by an internal DOJ collaboration of the Office of the Inspector General’s (OIG) and the Office of Professional Responsibility (OPR).
The OIG/OPR report has now been released and it found the Bush's DOJ weeded out lawyers who might not share its political agenda, in violation of civil service laws. Under President Bush, the Department of Justice has been turned into the Department of Just Us.
Some selected and perhaps rearranged and emphasised excerpts from the 115 page report follow:
Positions for DOJ attorneys fall into two broad categories: political and career. It is not improper to consider political or ideological affiliations when hiring for DOJ political positions. However both DOJ policy and civil service law prohibit discrimination in hiring for DOJ career positions on the basis of political affiliations. This prohibition applies to attorneys hired for permanent positions through the Honors Program as well as summer interns hired through the SLIP, because these are considered career positions. The Department’s policy on nondiscrimination is contained in the Code of Federal Regulations, Section 42.1(a) of 28 C.F.R. Part 42, Subpart A.
While the regulation does not define “political affiliation,” courts have considered political affiliation to include “commonality of political purpose, partisan activity, and political support.” See, e.g., Curinga v. City of Clairton, 357 F.3d 305, 311 (3d Cir. 2004).
In addition to Department policies, the Civil Service Reform Act (CSRA) prohibits the Department from discriminating in hiring for career positions based on political affiliation. For example, the CSRA states that federal agencies must adopt hiring practices for career employees in which selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity. 5 U.S.C. § 2301(b).
"employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation . . . .” 5 U.S.C. § 2301(b)(2).
These policies and laws do not define “political affiliation.” Nonetheless, identifying candidates as “liberal” or “conservative” based on the activities or organizations with which they are affiliated can be used as a proxy for political affiliation and thus can violate CSRA’s prohibition.
In 2002, the Honors Program and SLIP hiring process was fundamentally changed as a result of recommendations from a Working Group of senior officials from the offices of the Attorney General, Deputy Attorney General, and Associate Attorney General.
rather than sending career Department attorneys to various locations across the country to conduct regional interviews, all Honors Program candidates would be brought to Washington, D.C., at the Department’s [taxpayers'] expense, for interviews. According to the members of the Working Group we interviewed, this change was intended to allow more Department attorneys, particularly political appointees in leadership positions, to participate in the interview and hiring process.
in July 2002 the Attorney General’s Working Group directed that component heads appoint someone from their front offices to coordinate Honors Program hiring in their components.
a Screening Committee, composed of several members of the Working Group, reviewed and approved the candidates who the components selected for interviews
in general the components did not know who served on the Screening Committee or what criteria it applied in reviewing candidates. In addition, the Screening Committee gave no reasons or explanations for its decision to deselect a candidate from the list of those to be interviewed.
The changes implemented in 2002 remained in effect until 2006.
That changed in 2006 when OARM reported that many complaints surfaced after the Screening Committee took weeks, rather than the normal 2 days, to conduct its review, and deselected an unusually large number of seemingly qualified Honors Program and SLIP candidates.
As a result of the complaints and controversy in 2006, the Department changed the hiring process in 2007. Among other changes, the screening function performed by political appointees during the previous 4 years was replaced with a Screening Committee composed of career employees.
some members of the Screening Committee in 2006 used liberal and conservative affiliations as a proxy for political affiliation.
We found that, in general, the major criteria considered by the components from 2002 through 2006 included grades, quality of law school, judicial clerkships, law review experience, work experience, and a demonstrated interest in public service. Several of the components’ selecting officials told us that they considered it a positive factor when a candidate had a federal clerkship, particularly a federal appellate clerkship. In addition, some components looked for experience that indicated an interest or expertise in the type of law practiced by that component.
OARM Director Louis DeFalaise said that he was aware of general complaints in 2002 that the process had been taken away from the career employees and transferred to political appointees (with the implication that the changes had politicized the process), although DeFalaise said no one specifically complained to him
We conducted extensive data analysis of the applications of Honors Program and SLIP candidates who were approved or deselected by the Screening Committee in 2002 to detect any patterns in the approval and deselection rates between candidates with differing affiliations.
The data indicates that the [Honors] candidates with liberal affiliations were deselected at a much higher rate (15 out of 18) than candidates with conservative affiliations (0 out of 5) or candidates with neutral affiliations (11 out of 48), even though all candidates met the same criteria.
We found that all 7 [Honors] applicants who indicated that they were American Constitution Society members were deselected by the Screening Committee for interviews, while 2 of the 29 applicants who indicated that they were members of the Federalist Society were
deselected.
The proportion of Democratic Party affiliated [Honors] applicants deselected by the Screening Committee was significantly higher (70 percent, or 43 out of 61) than the proportion of Republican Party affiliated applicants
The overall data [for both Honors and SLIP applicants] indicated a pattern of deselecting candidates based on political or ideological affiliations.
The 2002 Screening Committee did not maintain a record of the basis for its decisions on individual candidates, nor did it provide any explanations to the components at the time as to why specific candidates were deselected. We recognize that the passage of time has made it difficult for Screening Committee members to recall the basis for their selection or deselection decisions. After we conducted our data analysis, we contacted the 2002 Screening Committee members again for their comments on the pattern that the data revealed. Higbee stated that the data “surprised” him. Nielson said that he was not certain that he participated in the screening process. Ciongoli stated that he had no recollection of participating in the screening process.
In sum, the data showed that [the 2002] candidates with Democratic Party and liberal affiliations apparent on their applications were deselected at a significantly higher rate than candidates with Republican Party, conservative, or neutral affiliations. This pattern continued to exist when we compared a subset of academically highly qualified candidates from the three groups. However, we found no other evidence that the members of the Screening Committee intentionally considered political or ideological affiliations in making their deselections, and the Committee members all denied doing so.
We did not find evidence indicating that the Screening Committees from 2003 to 2005 used political or ideological affiliations as a basis either to accept or deselect candidates.
In contrast to the Screening Committees in 2003 to 2005, the Screening Committee in 2006 deselected many Honors Program and SLIP candidates. These deselections, made without explanation to the components, generated significant controversy within the Department. based on the results of our investigation we concluded that two of the three members of the Screening Committee inappropriately considered political and ideological affiliations in the deselection process.
Some component officials said they sought an explanation to help them decide whether to appeal the Committee’s decision or to simply understand the basis for what appeared to be inexplicable decisions to deselect candidates with high academic qualifications. Elston generally responded to these requests for explanations by stating that the deselections were made by a committee. While he told us he did not remember the basis for individual deselections, he suggested to the components at the time that poor grades and poor grammar were the reasons for most candidate deselections.
Many component employees involved in the selection process told us they were shocked and upset at the large number of candidates the Screening Committee had deselected. They said the impressive qualifications of many of the deselected candidates, together with no explanation for their deselection, led to widespread speculation that the Screening Committee considered political or ideological affiliations in deselecting candidates.
We conducted extensive data analysis of the applications of those Honors Program and SLIP candidates who had been approved or deselected by the Screening Committee in 2006 to detect any patterns in the approval and deselection rates between candidates with differing affiliations.
Overall, based on the results of our data analysis, we found that Honors Program candidates whose applications reflected liberal affiliations were deselected at more than three times the rate (55 percent) of candidates whose applications reflected conservative affiliations (18 percent) and more than twice the rate of candidates whose applications reflected neutral affiliations (23 percent). We found a similar trend when we examined a subset of highly qualified candidates.
In addition, candidates whose applications reflected a Democratic Party affiliation were deselected at a significantly higher rate (48 percent) than candidates whose applications reflected a Republican Party affiliation (27 percent) or who did not show any party affiliations (30 percent). Similarly, highly qualified candidates who had Democratic Party affiliations were deselected at a much higher rate (37 percent) than candidates who had Republican Party affiliations (7 percent) or who did not show any party affiliation (18 percent).
following deselection of 28 of 74 of the Tax Division’s SLIP candidates, a senior Tax Division attorney reviewed all the candidates’ applications and wrote in a memorandum analyzing the deselections that she was “unable to identify any legitimate reason the students were deselected.” The attorney concluded that all but one candidate who had worked for a Democrat were deselected, while all candidates who listed connections to Republican Members of Congress or the White House were approved.
A senior attorney in the Civil Division’s Appellate Branch conducted an analysis of the 59 candidates that were deselected out of the 135 candidates that were submitted by the various sections in the Division. The senior attorney wrote that, as the approval and deselections of SLIP candidates trickled out in the fall of 2006, a pattern emerged that became impossible to ignore: candidates who had worked for [Democrats] were uniformly rejected, notwithstanding some with outstanding qualifications. In fact, 12 of the 13 candidates on the Civil Division’s list who had worked for a democratic senator or representative were rejected. . . . In addition, 4 out of 5 candidates who had worked for democratic state legislators were rejected. The attorney wrote that “every candidate who had worked for GOP legislators at the state or federal level had been approved.”
Daniel Fridman began his career with the Department in December 2004. Fridman had no responsibility for or involvement in hiring prior to September 2006 when Elston assigned him to work on the Screening Committee. Elston stated that because this was the Attorney General’s Honors Program, they wanted to hire candidates who were supportive of or who had views consistent with the Attorney General’s views on law enforcement. However, Elston did not explain how Fridman would determine whether a candidate supported the Attorney General’s views.
We asked Fridman to review a sample of approximately 50 applications of deselected candidates who had outstanding academic records. Fridman said that he would have voted yes on each of the candidates. Fridman repeatedly expressed surprise that candidates for whom he voted yes, based on their grades, law school, and class rank, were in fact deselected. Fridman said that based on our informing him that these candidates had been deselected by the Screening Committee, Elston must have sided with McDonald in deselecting these candidates.
At the end of the interview, Fridman stated: I’m still kind of reeling from the résumés that you . . . showed me . . . people from Harvard, Yale, Stanford who were deselected. There were a lot of them. And I am shocked and very disappointed about that. . . . I didn’t know that this was going on. I thought that this was being conducted in good faith. I was conducting my reviews in good faith and making my recommendations based on merits and what I thought were the people [who] were going to be the most qualified candidates for the Department. And I’m sickened by this. And I’m not happy that I’m associated with this.
McDonald graduated from law school in May 2003. McDonald was hired as a political appointee as Counsel to Acting Associate Attorney General Mercer and began work on September 5, 2006. Her duties as Counsel included assisting with oversight of the grant issuing components. She was also assigned by Mercer to work on the Honors Program/SLIP Screening Committee after she had been at the Department only a few weeks.
No one we interviewed (including Elston, Fridman, and Mercer) said they gave McDonald any instructions on how to conduct her review of Honors Program and SLIP applications. In a letter to OPR and OIG investigators in which he reiterated McDonald’s unwillingness to be interviewed, McDonald’s attorney stated that she was given no instructions on how to conduct the review, “except for limited high level statements.” McDonald’s attorney did not name the source of this guidance, and he declined to allow McDonald to be questioned about this issue.
Fridman and Elston reported that McDonald conducted Internet searches on the candidates using Google and MySpace. Our search of McDonald’s Internet activities on her Department computer during October and November 2006 confirmed that she conducted searches on many of the candidates’ names. We were able to determine that, among other things, McDonald searched for organizations to which candidates belonged, read blogs by or about candidates, and searched Westlaw, school websites, and school newspapers for articles by or about candidates.
Elston and Fridman both remembered McDonald circling items on candidates’ applications and writing remarks about those items, including employment or affiliations with organizations, judges, law school professors, and legislators who could be considered liberal. In the November 29 e-mail, McDonald wrote that three of the eight candidates were “Unacceptable” based on her objections to the candidates’ ideological affiliations. She objected to one candidate on the basis of the organizations he belonged to and to statements in his essay that she considered “leftist.” McDonald noted that she deemed another candidate unacceptable because the candidate was “active in ACS.” However, we determined that this candidate’s application did not mention his membership in the American Constitution Society or ACS.
McDonald found another candidate questionable because of the candidate’s grammar, writing style, and grades, but noted: “In her favor, she refers to wanting to work for DOJ to fulfill her goal of ‘enforcing the law.’ Leftists usually refer to achieving ‘social justice’ or ‘making policy’ or anything else that involves legislating rather than enforcing.”
Elston joined the Department in 1999 as a career Assistant U.S. Attorney In April 2006, he converted from a career employee to a political appointment. Elston told us that he initially became involved in the 2006 Screening Committee when Monica Goodling called him and asked him to lead it.
Elston confirmed that Fridman raised with him early in the review process Fridman’s concerns that McDonald was deselecting candidates based on “membership in liberal organizations, or those kind of things,” revealed in the candidate’s application or from Internet searches she conducted. Elston said he reviewed the applications Fridman noted and saw that McDonald had either circled or written comments about liberal affiliations on the applications and then voted to deselect those candidates.
Elston said he was aware that if McDonald used liberal affiliations as proxies for party affiliations to deselect applicants, that would be inappropriate. He said he thought at the time of the review process that at least “the appearance of what [McDonald] was doing was problematic.” However, Elston said he did not raise the issue with McDonald. Elston said he did not want to accuse McDonald of doing something inappropriate because he speculated that Goodling may have told McDonald to do what she was doing.
Elston said that he knew the Committee had put a lot of effort into reviewing the applications and he did not want to veto all of McDonald’s decisions. He said he often upheld her no vote, but for reasons other than the ones relied on by McDonald.
Elston acknowledged in our interview that when he became aware in the spring of 2007 of the allegations that Goodling had used political affiliations in hiring career immigration judges, “I had in the back of my mind the concern that, that some of those same things were at work in the Honors Program in hindsight.” He said he became concerned that “there was political stuff going on,” and that the Honors Program and SLIP may have been “Monica-ized.”
In addition to asking Elston about the general criteria he used, we showed Elston applications of approximately 50 highly qualified candidates who were deselected and asked him to explain the decisions. These were candidates Fridman said he believed he approved, which indicated that the two negative votes were cast by McDonald and Elston.
For example, we asked Elston about a deselected Honors Program candidate who was first in his class at Georgetown Law School, had clerked for a judge on the U.S. District Court for the Southern District of New York, was clerking for a judge on the U.S. Court of Appeals for the Second Circuit, and had been an articles editor on a law journal. He had also worked for a Democratic U.S. Senator and a human rights organization. Elston said he did not recall why this candidate was deselected. He noted that the candidate had written a note about using international law as a tool in constitutional interpretation. Elston explained that if McDonald had read the article and confirmed that the candidate was advocating the use of international law in constitutional interpretation, that would “be of concern.”
We asked Elston about another deselected Honors Program candidate who was enrolled in a joint degree program for law and urban planning at Harvard, served as an articles editor on a law journal, graduated in the top 5 percent of his undergraduate class at Harvard, and had worked on a congressional campaign for a Democrat. Elston said he remembered the applicant because he had “chuckled” at the following portion of his essay: In high school I thought that I wanted to captain a Green Peace skiff in the North Atlantic. I figured that was what serious environmentalists did, and I wanted to be a serious environmentalist. I decided later that potential martyrdom on the high seas was not for me, and rather than operate at the margins, I would prefer a job in which I could have a less antagonistic and more direct impact." When asked how he voted on this candidate, Elston said, “A lot of times when I chuckled, I said no.” Elston said he was certain McDonald would have circled items on this application. I couldn’t vote . . . with Dan all the time. I mean, if Esther felt very strongly and it came though clearly on a résumé, I gave that weight. . . . You can review the application package and come away with a, with a conclusion that this is not a person who comes to the Department with [an] . . . evenhanded approach to environmental issues.
We asked Elston about a deselected Honors Program candidate selected by ENRD who was in the top 10 percent of his class at Lewis and Clark University, was an articles editor for an environmental journal, and had worked for Earthjustice and the Northwest Environmental Defense Center.55 The candidate indicated in his essay a strong interest in working in environmental law, including that he wanted “to serve as part of the team charged with enforcing the world’s most comprehensive environmental laws, and with defending the crucial work of our environmental and resource management agencies.” Elston commented that while he did not know anything about the organizations that the candidate worked for the impression I’m left with after a quick look at this is that this is someone who had come to the Environment Division . . . with an agenda, not with an open mind as to the best way to enforce the environment, environmental laws. . . . I had a negative reaction to that. So, I may well have voted with Esther on that one.
We asked Elston about another deselected Honors Program candidate who had graduated from Yale Law School, had been a member of the Yale Law Journal, graduated summa cum laude with a Bachelor of Arts degree from Yale College, was clerking for a judge on the U.S. Court of Appeals for the Second Circuit, had studied Arabic, and had worked with a human rights organization. Elston said he looked for people with Arabic language skills and that he also knew the judge this candidate was clerking for, so he believed he would have been enthusiastic about this candidate. Elston could not explain why the candidate was deselected and said he was “starting to get concerned that some ‘yes’ pile [applications] got in the ‘no’ pile.”
We asked Elston about a deselected SLIP candidate who was a student at Harvard Law School, graduated in the top 5 percent of his undergraduate class from the University of California, Berkeley, was an editor on Harvard’s human rights journal, had interned with a city attorney’s office and a state court judge, and had worked for 5 years in marketing before entering law school. In his essay, the candidate referred to his perception that working for the government would be “work for the people” where “principles forged by experience, prudence and moral obligation” would guide the work. In his last line of the essay, the candidate stated, “It is precisely this ability to have my principles guide my work that inspires me to be a government lawyer.” Elston thought he would have reacted negatively to that last sentence because “I believe that a civil servant enforces the law impartially [and] often times is called upon to set aside his or her own beliefs.” However, Elston stated that he had no recollection of whether he reviewed the application and voted no.
We also questioned Elston about his decisions on the components’ appeals of deselected candidates. As noted above, Elston alone decided the appeals submitted by the components. Elston denied component appeals of 16 of the 32 Honors Program candidates and 13 of the 18 SLIP candidates who had been initially deselected. Because many of the candidates whose appeals were denied had strong academic credentials, we showed Elston some of those candidates’ applications and asked him to explain his decisions.
Elston stated that he had a “bias against overturning the work that the Screening
Committee had done” and accordingly his “bias was to not grant appeals because to do so would undermine the departmental review process.”
We discussed with Elston appeals of specific candidates. For example, we asked Elston why he denied the appeals of two candidates by the Civil Division. One candidate was a student at Harvard Law School, had an undergraduate degree from Princeton University, had worked for Planned Parenthood and a Democratic Senator, and had received high praise for her work during a SLIP internship the previous summer. Another candidate had graduated sixth in his law school class from the University of Alabama, had been a member of the law review, had interned for the Public Defender Service, currently was clerking for a federal judge, and had written a paper on the detention of aliens under the Patriot Act.
Elston’s only explanation for deselecting these candidates was that he was “pretty offended” by the Civil Division’s appeal, which stated that the Division screeners had taken the responsibility of selecting candidates seriously and “given the care we exercise in making these selections, we would urge some deference to the difficult choices.” Elston said he found the appeal offensive because the Division employees were “basically saying we know better” and “you should defer to us.” However, Elston could not explain why he accepted other candidates appealed by the Civil Division but denied these two candidates. Elston recalled that Civil Division AAG Keisler subsequently made a personal appeal in a telephone call on behalf of the candidate who worked for Planned Parenthood, which caused Elston to reverse his decision and reinstate that candidate.
We asked Elston why he denied the appeal of a SLIP candidate who was a student at Yale Law School, a member of the Yale Law Journal, a Rhodes Scholar, a Truman Scholar, graduated summa cum laude from Yale College, interned with the U.S. Attorney’s Office for the Southern District of New York, had researched national security and terrorism issues for Yale Law Professor Bruce Ackerman, and had worked for the Minnesota Advocates for Human Rights, the Coordinating Council for Children in Crisis, and the Legal Services Organization’s Trafficking Clinic.58 AAG Keisler had sent Elston an e-mail indicating that this candidate was the top priority among all those SLIP candidates that the Civil Division was appealing. Elston said that this candidate “looks like a perfectly outstanding candidate, although she doesn’t say much in terms of essay that would give us a view as to why she’s interested in public service.”
We asked Elston why he denied the request of U.S. Attorney Carol Lam to interview a candidate who graduated in the top third of her class at Stanford Law School, was summa cum laude with an undergraduate degree from George Washington University, was clerking for a judge on the U.S. Court of Appeals for the Ninth Circuit, and had previously worked for the Center for the Study of Sexual Minorities in the Military. Elston said he could not recall the reasons for his decision, but thought he may have struck the candidate based on a reference in her essay that being a federal prosecutor would afford her the opportunity to exercise prosecutorial discretion in deciding what charges were appropriate and whether to offer a plea bargain.
We asked Elston about his denial of the Antitrust Division’s appeal on behalf of a candidate who was in the top 10 percent of his class at the University of Minnesota Law School, was a law review editor, graduated from the Wharton School of Business at the University of Pennsylvania, was clerking for a federal appellate judge, and listed membership in both the Federalist Society and the American Constitution Society with a comment that he was “open-minded to all points of view.” The candidate also noted in his essay that he was capable of defending positions such as the constitutionality of the “President’s NSA‘s wiretapping program” even though he “remained personally conflicted” about the program. Elston said he was “surprised” that he did not grant the appeal and could not recall the reason for his decision. Elston said that he may not have granted the appeal because this candidate was listed fourth among six candidates that the component was appealing and he may have assumed that the component listed the candidates in order of priority. However, Elston could not recall why he granted the appeals of other candidates requested by this component, including one who was fifth on the appeal list, had lower grades, attended a lower-tier law school, and had no political or ideological affiliations on his application.
We asked Elston about an appeal he denied of a candidate who was a student at Georgetown Law School with a 3.08 grade point average, who graduated in the top third of his undergraduate class at Georgetown University, and who had worked for Senator John Kerry’s presidential campaign. The candidate selected the Criminal Division as one of the components he was interested in, stated in his essay that he had “always wanted to be a prosecutor,” but that his interest in prosecuting was not “limited to rapists,” and included a paragraph that spoke highly of the role of the U.S. Attorney. Elston denied that the candidate’s work on the Kerry campaign had any negative effect on his decision. Rather, Elston said that one of the reasons he did not grant the appeal was because other than selecting the Criminal Division as one of the components he was interested in, the applicant “didn’t express an interest in the Criminal Division.” the Division “doesn’t prosecute sex offenders” and “does very different things than U.S. Attorneys’ Offices.” We note that Elston’s statement that the Criminal Division does not prosecute sex offenders is incorrect. Elston also said that his grades were not impressive and that he used too many exclamation points (we found three on the three-page application),
We also asked Elston about a SLIP candidate who was a thirdyear student at Yale Law School, had secured a clerkship on the U.S. Court of Appeals for the Ninth Circuit for the fall of 2007, had a master’s degree in history from Harvard University, graduated cumlaude from Yale College, had successfully served as a SLIP with the Department, and had a security clearance. The candidate’s application also stated that she had worked for a Democratic Congressman and had worked at the Yale Lowenstein Human Rights Clinic on human rights issues “arising from the war on terror.” Elston was unable to say why the candidate was deselected. Elston said he remembered being moved in a positive way by the personal essay the candidate had written about some difficulties in her childhood. However, Elston said he found this candidate’s essay “a little bit troublesome” because she said she wanted to work at the Department where she would “be able to consider both the needs of my client and also what is best for my country.” Elston said that “line attorneys in the Department of Justice don’t get to indulge themselves [by] deciding for themselves what’s best for the country.” Nevertheless, Elston said he did not think that statement in the essay would constitute a reason to disqualify somebody with an outstanding record and an otherwise great essay.
We asked Elston why he denied the appeal of a SLIP candidate who was a student at Stanford Law School, an editor on the Stanford Journal of International Law, President of the Stanford International Human Rights Association, and had graduated summa cum laude from Northwestern University. Elston said there was nothing familiar to him about the application so he could not explain why he did not approve it. However, on reading the applicant’s essay when we showed it to him, Elston said that he had a negative reaction to her statement that working for the Department would stimulate her conscience as well as her brain and allow her to work on cases that she cared about.
The evidence demonstrates that McDonald used inappropriate criteria in her evaluations. The November 29, 2006, e-mail from McDonald to Elston and Fridman opining on ATF SLIP candidates is direct evidence that McDonald inappropriately evaluated candidates based on the candidates’ political or ideological affiliations.
McDonald wrote that she voted against candidates because their essays used “leftist commentary and buzz words” such as “environmental justice,” “social justice,” “making policy,” or “anything else that involves legislating rather than enforcing.” She also expressed disapproval of candidates’ affiliations with liberal organizations such as the American Constitution Society, the Poverty and Race Research Action Council, Greenpeace, and Greenaction. Her remarks in the e-mail about “leftist commentary” suggested that this was not an isolated incident or the first time she had applied these criteria. Moreover, Fridman and Elston both told us that McDonald’s comments in the November 29 e-mail were consistent with other comments she made in her review of Honors Program and SLIP applications. Fridman also told us that McDonald circled items and expressed concern about applications that indicated a candidate had worked for a judge, law professor, or legislator she considered liberal, was a member of or had worked for a liberal organization, or expressed views in a law review article that were not entirely consistent with positions taken by the current administration. Elston also acknowledged that McDonald appeared to have considered political or ideological affiliations in her review of applications.
Based on the results of our investigation, we concluded thatMcDonald committed misconduct and violated Department policies and civil service law by considering political or ideological affiliations in assessing Honors Program and SLIP candidates.
However, we believe the most significant misconduct was committed by Elston, the head of the Screening Committee. Elston failed to take appropriate action when he learned that McDonald was routinely deselecting candidates on the basis of what she perceived to be the candidates’ liberal affiliations. We also concluded that Elston deselected some candidates – and allowed the deselection of others – based on impermissible considerations. after he became aware early in the screening process that McDonald was rejecting candidates based upon what she perceived to be their liberal affiliations, he did not discuss that impropriety with her.
Elston told us that he decided not to talk to McDonald about the criteria she was using because even if she was rejecting candidates based on their liberal affiliations, he and Fridman could overrule her. Elston admitted, however, that he frequently gave deference to McDonald’s decisions because he could not always vote against her
we concluded that Elston violated federal law and Department policy by deselecting candidates based on their liberal affiliations. First, the data analysis indicates that highly qualified candidates with liberal or Democratic Party affiliations were deselected at a much higher rate than highly qualified candidates with conservative or Republican Party affiliations.
Second, Elston admitted that he may have deselected candidates in a few instances due to their affiliations with certain liberal causes. Elston also was unable in specific cases to give a credible reason as to why highly qualified candidates with liberal or Democratic Party affiliations were deselected.
While Elston generally denied that he considered political or ideological affiliations in evaluating candidates, he admitted when questioned about certain candidates that he considered aspects of those candidates’ ideological affiliations in his evaluation. For example, Elston admitted that in two instances he would have voted with McDonald to deselect the candidates based on their affiliations with pro-environment causes because he did not want the candidates coming to the Department “with an agenda” or without “an evenhanded approach” to environmental issues.
In addition, Elston consistently was unable to provide credible explanations as to why he denied the appeals of the highly qualified candidates who had liberal or Democratic Party affiliations. His proffered reasons were also inconsistent with other statements he made or actions he took.
Elston tried to minimize his role in selecting candidates when he was questioned by others about the Committee’s decisions. Elston frequently explained that other Committee members had been responsible for the decisions and described his role as a conduit. However, the evidence demonstrated that he was casting the deciding vote on a significant number of candidates that Fridman had approved and McDonald had rejected.
We believe that McDonald’s and Elston’s conduct constituted misconduct and also violated the Department’s policies and civil service law that prohibit discrimination in hiring based on political or ideological affiliations.
In addition, we believe that various employees in the Department deserve credit for raising concerns about the apparent use of political or ideological consideration in the Honors Program and SLIP hiring processes. For example, Daniel Fridman deserves praise for reporting his concerns about the process in 2006 to both his supervisor and Elston and for avoiding the use of improper considerations in his review of candidates for the Honors Program and SLIP. A few DOJ political employees also objected to the apparent use of political or ideological considerations in the hiring process, such as Assistant Attorneys General Peter Keisler and Eileen O’Connor, and they should be credited for raising their concerns. Certain career employees, particularly in the Tax Division and the Civil Division, also pressed concerns about the hiring process. By contrast, we believe that others in the Department, such as Acting Associate Attorney General William Mercer and OARM Director Louis DeFalaise, did not sufficiently address the complaints about the deselections.
Other reports on this topic:
Inquiry Shows Hiring Based on Ideology
Ideology-Based Hiring at Justice Broke Laws, Investigation Finds
Audit: DOJ Played Politics, Broke Law in Hiring
posted by Guambat Stew at Wednesday, June 25, 2008
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