One assistant U.S. attorney, whom Goodling called “politically unreliable,” explained to then-Office of Legal Policy chief Richard Hertling that she wasn’t a Democrat. She said Hertling replied that since Goodling thought she was a Democrat, she couldn’t be detailed to the legal policy office.
DOJ’s Brat Pack
When Mark Metcalf, then a lawyer in the Civil Rights Division who had worked on the 2004 Bush-Cheney campaign, expressed an interest in becoming an immigration judge, all it took was an e-mail.
“Immigration judge?” wrote White House liaison Jan Williams in an August 2005 message to Sampson, then a counselor to Attorney General Ashcroft. Sampson responded the same day: “Ok.”
Not long after, Williams formally offered Metcalf a position in Orlando, Fla., without interviewing him. Neither she nor Sampson thought to tell Kevin Ohlson, the deputy director of the Executive Office of Immigration Review.
From 2004 to 2007, in violation of civil service laws, Sampson, Williams, and Goodling hired about 40 immigration judges, most of whom came recommended by the White House or Republicans in Congress.
Sampson told investigators he thought immigration judgeships were political positions. They are not.
Until 2004, the EOIR took the lead on hiring immigration judges. The office publicly announced vacancies, and eligible candidates needed at least seven years of legal experience, plus some knowledge of either judicial procedure or immigration law.
Then came Sampson and a change in the rules: No more advertising; only the attorney general’s office would be notified of vacancies. The screening process also changed. Sampson, Williams, and Goodling routinely pushed through candidates without interviewing them, as long as they had the proper Republican credentials. The EOIR rubberstamped all but one of them.
The new process created a serious problem for the immigration courts. The attorney general’s staff was unable to keep up with the vacancies at a time when immigration enforcement was increasing. In July 2005, Ohlson begged Williams to allow him to advertise open slots—noting they were about to have another six.
“I am concerned that at some point people on the Hill will start to ask why we have not been filling these IJ vacancies as part of the administration’s effort to ensure that illegal aliens who pose a danger to us are deported in an expeditious manner,” Ohlson wrote in a July 22 e-mail to Williams.
The report found that Williams ignored résumés sent to her by Ohlson unless the candidate was independently backed by the White House or a political appointee.
Not much changed when Goodling took over in March 2006. At one point, Goodling was relying on Metcalf for candidates. Metcalf had partnered with two other Florida immigration judges—former Reagan official Rex Ford and Sampson pick Garry Malphrus—to identify judge picks for Goodling. They recommended 10 names, all with Republican connections or affiliations.
Goodling, too, ignored Ohlson’s requests that she fill judgeships more quickly. By November of that year, Ohlson noted there were 25 vacant positions—some of which hadn’t been filled since Williams was in charge.
Sampson’s system was exposed in a 2005 lawsuit filed by Guadalupe Gonzalez, a career government immigration lawyer who alleged she had been passed over for a judgeship because of her gender and ethnicity. Civil Division lawyers interviewed Goodling, who told them she never considered political factors when vetting candidates.
The DOJ lawyers found that Sampson and the others had misused the attorney general’s direct appointment power, and hiring was suspended in January 2007. Four months later, AG Gonzales returned the hiring process to the EOIR.
DOJ Inspector General Glenn Fine told senators last week that a few of the judges hired by Sampson, Goodling, and Williams didn’t make it past the probationary period. Fine suggested there was little that could be done to vet the others.
“It would be difficult, if not impossible, to see ex post facto if they’re qualified now,” Fine said.
The Monica Problem
When Sen. Ben Cardin (D-Md.) asked Fine last week how it was that “a 33-year-old was able to rule the day,” Fine answered, pointedly, that too few DOJ officials were willing to challenge Goodling—let alone supervise her.
The report cites Justice officials for brooking Goodling’s decisions to block “politically unreliable” career candidates from details in the Executive Office for U.S. Attorneys, the Office of Legal Policy, and the Office of the Deputy Attorney General.
“Senior officials in these offices sometimes objected to Goodling’s decisions, and argued with her about the quality of these candidates,” the report says. “Sometimes their appeals were successful, but more often they were not.”
On at least 10 occasions noted in the report, officials shrank from a fight with Goodling.
One detailee, an assistant U.S. attorney, had the backing of Deputy Attorney General McNulty and Associate Deputy Attorney General Ronald Tenpas, but Goodling refused to extend the AUSA’s six-month detail because she was a Democrat, the report says.
Elston, McNulty’s chief of staff, told the AUSA that he had “humiliated himself and gotten down on his knees” to get a three-month extension.
When the Buffalo, N.Y.-based prosecutor of the Lackawanna Six (a group of Yemeni-Americans convicted of providing support to al-Qaida), William Hochul Jr., applied for a counterterrorism detail in the EOUSA in 2006, Director Michael Battle and his staff raved that Hochul was head and shoulders above the rest of the candidates. But Goodling turned him away. She confided to Battle’s deputy that Hochul’s wife’s ties to the local Democratic Party doomed his bid.
Battle, a former U.S. attorney in the Western District of New York, did not appeal Goodling’s decision. He told investigators that he thought it would be futile “given that Goodling worked in the OAG,” the report says.
Battle also unsuccessfully tried to secure a deputy slot in his office for an AUSA on detail from the Western District of New York. He told investigators that Goodling vetoed his pick because she didn’t like the AUSA and because she thought he was a “political infant” who had not “proved himself” to the Republican Party by being involved in political campaigns.
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Again, Battle said he figured the attorney general’s office presided over both career and political senior executive service positions in the executive office.
When Goodling rejected a 14-year career attorney vying for a detail in the Office of Legal Policy for refusing to state his political beliefs in an interview, then Assistant Attorney General Rachel Brand was annoyed but said it wasn’t a “fight worth picking.”
A few went after Goodling, though. Regina Schofield, then assistant attorney general for the Office of Justice Programs, complained to Sampson that Goodling was asking OJP candidates inappropriate questions. She told Sampson that Goodling “needed to be trained,” according to the report.
Undoing the Damage
It’s said the healing starts when the wounding stops.
There are two more inspector general reports to come—one on the firing of eight U.S. attorneys and another about politicization of the Civil Rights Division—but Justice officials, including Attorney General Michael Mukasey, maintain that the department is the better for the pain.
“Although the publication of these reports and the headlines they generate are painful for all who work here,” Mukasey wrote in a department-wide letter last week, “they are an important part of determining and acknowledging what went wrong and why it went wrong, and crucial to ensuring that we do not again have to face such problems.”
Mukasey and Gonzales before him have already taken steps to fix the problems outlined in the reports, but it’s unclear whether any of the lawyers accused of violating federal law will face punishment.
Before he left, Gonzales barred political appointees from deciding waiver requests from U.S. attorneys and limited the Executive Office for U.S. Attorneys’ review of waiver requests to budget considerations.
On July 25, 2007, three days before Goodling testified before Congress about her role in politicizing hiring at the department, Gonzales rescinded the regulation and the internal order that gave Goodling and Sampson authority over hiring in the Offices of the Deputy Attorney General and the Associate Attorney General.
Mukasey has limited the department’s communication with the White House, reinforced merit system principles—particularly within the department’s Honors Program, the subject of a June inspector general report—and pledged to adopt the recommendations in the most recent report, which include clarifying department policies on whether politics may play a role in the selection of career attorneys to fill temporary details.
Only one of the officials accused of violating civil service laws and DOJ policy—John Nowacki, who was deputy director of the EOUSA in the period covered by the report—remains at the department.
“We are reviewing the report and considering what, if any, actions should be taken based upon the findings contained in the report,” says Justice Department spokesman Peter Carr.
Goodling, now a consultant based in Northern Virginia, and Sampson, a partner at Hunton & Williams in the District, could face sanctions by their state bars, but it’s unlikely they’ll see anything more serious.
“We did not think there was a sufficient basis for criminal prosecution for false statements,” Fine told senators last week.
Akin Gump Strauss Hauer & Feld’s John Dowd, Goodling’s attorney, said the response to the report has been overheated, considering the OIG found no criminal violation, and he pointed out Goodling was “the only witness in this whole affair who could, and did, recall” in congressional hearings over the U.S. attorney firings.
“Ms. Goodling . . . described how politics sometimes influenced her decisions with respect to AUSA waiver requests, temporary details to Main Justice offices, and the hiring of Immigration Judges,” Dowd wrote in an e-mail. “These, of course, are precisely the three categories addressed in the OIG’s ‘stunning’ report. Perhaps the OIG’s indebtedness to Ms. Goodling explains why hers is the only name to appear in the title.”
Joe Palazzolo can be contacted at [email protected].
