Mukasey Rules Out Charges in DOJ's Hiring Probe

Current and former Justice Department officials who used a political litmus test in violation of civil service laws to guide the hiring process at the agency won’t be prosecuted or disciplined, Attorney General Michael Mukasey said Tuesday.

In a speech before the American Bar Association (ABA) in New York, Mukasey said the public humiliation the former officials endured upon resigning from the Department of Justice last year was punishment enough.

“The officials most directly implicated in the misconduct left the Department to the accompaniment of substantial negative publicity,” Mukasey said. “Their misconduct has now been laid bare by the Justice Department for all to see. As a general matter in such cases, where disciplinary referrals are appropriate, they are made. To put it in concrete terms, I doubt that anyone in this room would want to trade places with any of those people.”

The Department of Justice’s Inspector General and the agency’s Office of Professional Responsibility issued two reports over the past couple of months found that seven former officials at the agency broke federal laws on numerous occasions by basing their hiring decisions on politics and refused to promote career prosecutors they suspected of being gay.

The report singled out Monica Goodling, the DOJ’s White House liaison, and Kyle Sampson, the chief of staff to former Attorney General Alberto Gonzales, for the most egregious offenses.

For example, Goodling rejected an applicant who had decades of experience in counterterrorism because his wife was involved in Democratic politics in their hometown. And Sampson rejected immigration judges he perceived were too liberal. Sampson said he was under the impression that immigration judges were political appointees and therefore could allow politics to guide his hiring decisions.

But the inspector general’s report said Sampson came to that conclusion on his own.

“Even if Sampson was confused or mistaken in his interpretation of the rules that applied to [immigration judge] hiring, we do not believe that would excuse his actions," the report states. "His actions, which were carried out over a lengthy period of time and were not based on formal advice from anyone, systematically violated federal law and Department policy and constituted misconduct."

Sampson, who is now in private practice, and Goodling resigned from the Justice Department in disgrace last year and both testified before Congress about the inner workings of the DOJ under Gonzales’s tenure. Goodling testified before Congress under a grant of immunity.

Revelations about the politicization of the agency surfaced during a congressional investigation into the firings of nine U.S. attorneys in December 2006. Internal Justice Department documents released last year suggested that the dismissals of the federal prosecutors were based on partisan politics.

Mukasey told the ABA that he is “well aware that some people have called on me and on the Department to take even more drastic steps than those I have described.”

“For example, some commentators have suggested that we should criminally prosecute the people found in the reports to have committed misconduct,” Mukasey said. “Where there is evidence of criminal wrongdoing, we vigorously investigate it. And where there is enough evidence to charge someone with a crime, we vigorously prosecute. But not every wrong, or even every violation of the law, is a crime. In this instance, the two joint reports found only violations of the civil service laws.”

 

House Judiciary Committee Chairman John Conyers said he is "distressed" that Mukasey has decided not to prosecute the former DOJ officials who broke the law.

“I am distressed that Attorney General Mukasey has been so quick to determine that no criminal offense has been committed in connection with the illegal hiring practices at the Department of Justice,” Conyers said Friday. “It is not enough for Mr. Mukasey to assert that things are different under his watch. The Department of Justice cannot reestablish its credibility so long as it persists in a strategy designed to avoid revealing all the facts that have so compromised the integrity of the Department of Justice and to prevent real accountability for misconduct by former DOJ officials.”

Sen. Patrick Leahy, (D-Vt.), agreed, saying Mukasey's "blanket conclusions appear premature based on the facts and evidence that congressional investigators and the Inspector General have uncovered so far."

“The Attorney General, the nation’s top law enforcement officer, seems intent on insulating this administration from accountability," Leahy said Tuesday. "We must continue to pursue the truth and facts, and hold any wrongdoers accountable.”

Since becoming Attorney General in December 2007, Mukasey has balked at investigating crimes allegedly committed earlier by Bush administration officials – from torturing detainees to arranging political prosecutions – a "no-look-back" approach that drew criticism from the Senate Judiciary Committee.

Most recently, Mukasey advised President George W. Bush to use his broad assertion of executive privilege to block release of Vice President Dick Cheney’s interview with a special prosecutor about possible criminal violations in the leaking of a CIA officer’s covert identity. Mukasey had rebuffed congressional requests for interviews conducted with both Cheney and Bush about the disclosure of CIA officer Valerie Plame Wilson’s identity.

In the case of politicization at the DOJ, Mukasey told the ABA that he has already implemented “institutional reforms” at the agency “substantial both in number and in reach.”

“Among other things, the Department now has new hiring processes for immigration judges, members of the Board of Immigration appeals, honors program candidates, and summer law interns – with codified roles for career attorneys in the decision-making process,” the attorney general said. “We have instituted mandatory training for all political appointees regarding Merit System Principles and Prohibited Personnel Practices, and we will shortly be expanding that training to include all Department employees, whether political appointees or not, involved in career hiring. And we have revised various orders to reiterate the Department’s commitment to merit systems principles and to remove political appointees in the Attorney General’s Office from the process of hiring career attorneys.”

Mukasey added that applicants who were denied federal employment by Goodling and Sampson as a result of their political affiliation or sexual orientation would be called back and encouraged to reapply for jobs.

“To the extent we can, we intend to contact candidates for the Attorney General’s Honors Program who may have been improperly eliminated from consideration and encourage them to apply for any vacancies at the Department,” Mukasey said. “Each of them will be assured a fair evaluation. Similarly, we will contact those who may have been improperly denied temporary details to jobs at Main Justice to see if they are interested in any new opportunities that are or may become available.”

But Mukasey said applicants who were hired for various positions, including judgeships, based on their conservative credentials won’t be removed from their positions because those individuals “did not do anything wrong.”

“There is a principle of equity that we all learned in the schoolyard, and that remains as true today as when we first heard it: two wrongs do not make a right,” Mukasey said. “That some of the officials involved in hiring gave improper consideration to politics does not mean that the people they hired are unqualified for their jobs. It therefore would be unfair – and quite possibly illegal given their civil service protections – to fire them or to reassign them without individual cause.”

The DOJ’s Inspector General and Office of Professional Responsibility is still conducting an investigation on how the Bush administration let politics influence prosecutorial judgments and is expected to issue a report in the weeks ahead.

David Iglesias, the former U.S. Attorney from New Mexico who was one of those fired in the federal prosecutor purge, said former Attorney General Alberto Gonzales may face new legal jeopardy when the report is released.

That installment is expected to address the firings of nine U.S. Attorneys in 2006 and could set the stage for criminal charges against Gonzales and his former deputy, Paul McNulty, according to Iglesias, the former U.S. Attorney for New Mexico who was one of those fired in the purge.

In an interview with The Public Record, Iglesias said he believes Inspector General Glenn Fine will recommend that Mukasey appoint a special prosecutor to investigate Gonzales, McNulty and others for perjury, obstruction of justice and possibly other crimes related to the firings.

However, given Mukasey’s unwillingness to pursue past crimes that implicate the Bush administration, Iglesias said accountability for Gonzales and others may have to wait until a new President takes office.