A Second Hand Conjecture

Is it possible that for the second straight time a presidential administration is permanently hobbled by someone named Monica?
For whatever reason, frequent commenter “glasnost” decided to take me to task because I was not sufficiently incensed enough about the admission by Monica Goodling that she broke the law. By taking political considerations into her calculus for deciding on who should be hired for career positions in the DOJ, Ms. Goodling certainly did break the law. I don’t pretend that there is any excuse for that. It just seemed rather obvious to me that, when confronted with a choice between otherwise equally qualified candidates for a job, the person doing the hiring will opt for the one most like her — i.e. a Republican would hire other Republicans, and Democrats would hire other Democrats. Accordingly, Goodling’s admission seemed like pretty small potatoes in the grand scheme of things.

However, when I originally wrote about her testimony, I only knew of her admission (“I may have gone too far, and I may have taken inappropriate political considerations into account on some occasions. And I regret those mistakes.“) and that her hiring practices were already under investigation, but not the details of the whole affair. In the past several days much more has come to light, including yet more evidence that Gonzales was completely absent in managing his department, that Kyle Sampson was either given, or arrogated to himself, near dictatorial control over DOJ personnel matters, and that the White House may have knowingly directed the DOJ to ignore civil service rules in the hiring of immigration judges.

First, the meat of the story:

The Justice Department considered political affiliation in screening applicants for immigration court judgeships for several years until hiring was frozen in December after objections from department lawyers, current and former officials said yesterday.

The disclosures mean that the Justice Department may have violated civil service laws, which prohibit political considerations in hiring, for as long as two years before the tenure of Monica M. Goodling, the former aide to Attorney General Alberto R. Gonzales who testified about the practice this week.

Goodling told the House Judiciary Committee on Wednesday that she “crossed the line” in considering political affiliation for several categories of career applicants at Justice, including immigration judges.

[…]

The department’s hiring practices have come under scrutiny in the furor over the firings last year of nine U.S. attorneys. A Justice Department investigation of the dismissals has been expanded to include whether Goodling and other Gonzales aides improperly took politics into account in hiring for nonpolitical jobs.

Goodling testified that Sampson told her that the department’s Office of Legal Counsel had concluded that immigration judges were not covered by civil service rules. The Justice Department said after her testimony that it had “located no record” of an OLC opinion that reached that conclusion.

Goodling’s attorney, John M. Dowd, said in a statement yesterday that Goodling was referring in her testimony to the verbal advice from Sampson, not to any formal opinion from OLC.

Apparently, Goodling was under the mis-impression that the hiring of immigration judges could be done in essentially the same manner as other judges. However, immigration judges are a different animal, per statute, in that they are career civil service positions:

… this appears to be basic outline: 5 U.S.C. 2302(b)(1)(E) prohibits all personnel actions — including appointments — with respect to “covered positions,” on the basis of political affiliation. “Covered positions,” in turn, include “any position in the competitive service, a career appointee position in the Senior Executive Service, or a position in the excepted service.” Section 2302(a)(2)(B).

Members of the BIA [ed.: “BIA” = Bureau of Immigration Appeals] and IJ judges are part of the “excepted service,” and therefore political affiliation cannot be a basis for any personnel actions regarding them, unless those positions are subject to the exception described in subsection 2302(a)(2)(B), i.e., “any position which is, prior to the personnel action–

(i) excepted from the competitive service because of its confidential, policy-determining, policy-making, or policy-advocating character; or
(ii) excluded from the coverage of this section by the President based on a determination by the President that it is necessary and warranted by conditions of good administration.”

The Legal Times actually noted some discrepancy in the hiring of immigration judges last June:

As a story in The Legal Times [ed.: subscriber link] last year explained, immigration judges are different from other federal judges in that they’re civil service employees — meaning that there’s a formal application process with the Justice Department’s Executive Office of Immigration Review.

But, Jason McLure reported, “according to an immigration-judge hiring policy released by the Justice Department, the attorney general also has the option to pre-empt the formal vetting process and directly hire a judge of his choosing.”

It was apparently this option that allowed Goodling, and others at the department before her, to do their thing.

You can find an excerpt of the Legal Times story here.

If the AG had made use of the option to skip the normal competitive hiring process for immigration judges, then the President would have first had to have made some sort of official determination pursuant to Section 2302(a)(2)(B) that the positions were either (i) policy related, or (ii) “good administration” required the positions to be excepted from the normal rules. However, according to the DOJ, no such determination was made, and in fact it is the Department’s position that such judges do fall under the civil service rules (HT: TPMM):

[Goodling] cited a conversation she had with another Gonzales aide, D. Kyle Sampson, who said the department’s Office of Legal Counsel had declared the practice to be lawful.

Justice Department officials said no such opinion existed.

They also denied Goodling’s assertion that the hiring of immigration judges had been frozen after the department’s civil division raised concerns about using a political litmus test.

“There is no disagreement within the department, including between the civil division and the Office of Legal Counsel, about whether the civil service laws apply to the appointment of immigration judges,” said Dean Boyd, a Justice Department spokesman. “They do apply.”

Keep in mind, that Goodling’s testimony all leads directly to Kyle Sampson being the purveyor of bad information, and that there are no direct links to Gonzales or the White House, save one; John Ashcroft. Despite the denial of any such policy from the DOJ, evidence exists to suggest that the Bush Administration deemed IJ’s to fall within the exceptions indicated above, such as the large number of IJ’s without any immigration background, but most notably the housecleaning done by John Ashcroft in the BIA:

Until this Administration, BIA members and IJs were not thought to be included within the exception. But there is some reason to think that the Bush Justice Department determined that, because the Attorney General has the authority to appoint members of the BIA and IJs, those positions must therefore be of a “policy-determining [or] policy-making character,” and thus exempted from civil service protections. In his recent article in the Cornell Law Review, Deportation and the War on Independence, 91 Cornell L. Rev. 369 (2006), Steve Legomsky points to a 2002 final regulation, 67 Fed. Reg. 54,878, 54,893 (Aug. 26, 2002), as suggesting that, in the view of AG Ashcroft, the AG has virtually unbounded discretion to remove all attorneys in DOJ, including in particular BIA members and IJs. (The commentary to the reg does not quite say that in so many words — but there’s a strong insinuation.) And one year later, Ashcroft in fact removed many BIA members, virtually all of them viewed as liberal or more sympathetic to aliens’ claims. Similarly, as Jason McClure reported last June, since 2004, appointments to be IJs have been largely reserved for persons whose principal qualification appears to be that they have been loyal Republicans.

Thus, there is some circumstantial evidence, at least, supporting Goodling’s testimony that DOJ had determined that the civil service laws do not protect IJs and members of the BIA.

See also here:

Given the housecleaning of the BIA by Attorney General John Ashcroft in President Bush’s first term, it should not be too surprising that politics went into BIA and IJ appointments. Nonetheless, it is somewhat surprising that these issues were considered and discussed at the highest levels of the Department of Justice.

If, as Marty Lederman asserts, IJ and BIA positions were not previously deemed to fall within the policy exceptions (which would seem to be borne out by the DOJ denial), and if Ashcroft was under the same misapprehension as Goodling, Sampson, and supposedly Gonzales (assuming that he had any clue as to what was going on in the DOJ), then it would stand to reason that evasion of competitive hiring rules under the civil service statute must have come directly from the top.

That in and of itself would not be a problem if, as the statute reads, the President had declared such positions to fall within the exception. But the DOJ contends that no such determination was ever made, and that the White House never had any policy exempting IJ and BIA hires from the normal competitive process. That leaves Goodling and Sampson hanging in the wind. And Goodling comes across as the more reliable witness IMHO.

But then, there is the other Gonzalez:

Few people in El Paso know more about immigration law than Guadalupe Gonzalez, a lawyer who has prosecuted illegal immigration cases along the Texas border for nearly 25 years. In 2002, after seeing an advertisement, she applied — and was passed over — for an opening on the local bench of one of the nation’s 54 immigration courts. But when two more vacancies arose in 2004, nobody bothered to tell Gonzalez. In fact, the positions were never advertised.

Instead, the Justice Department’s leadership, which oversees the immigration courts, used a little-known power to appoint two lower-level attorneys — both of whom Gonzalez had supervised at the Immigration and Customs Enforcement office in El Paso — to the $115,000-a-year positions.

Gonzalez sued the DOJ for discrimination and it was during that case, which came to a close this past December, that some interesting facts about the hiring process were disclosed:

The authority used to bypass the competitive hiring process would be employed again and again during the last year of Attorney General John Ashcroft’s tenure and continue when Alberto Gonzales succeeded him in 2005. And according to the immigration court’s former administrator, it also allowed top political aides at Justice, including former Gonzales chief of staff D. Kyle Sampson and former White House liaison Monica Goodling, to fast-track candidates of their choosing — including a number of lawyers with no immigration law experience but strong ties to the Republican Party or President George W. Bush’s election campaigns.

[…]

Nor was it well-known that a discrimination suit filed by Guadalupe Gonzalez led to internal debate within the Justice Department over the appointment process and to a hiring freeze of immigration judges that began in December — a freeze that wasn’t lifted until last month. Justice’s immigration judge selection process is currently being probed by the department’s inspector general and its Office of Professional Responsibility for potential violations of federal civil service laws.

[…]

Historically, those hired for the positions were vetted by the Executive Office of Immigration Review and its recommendations were forwarded to the Office of the Deputy Attorney General — where they were almost uniformly approved. Sometimes this process took place without public advertisements for the posts and without competing candidates. But in recent years, that process came to be inverted: instead the attorney general’s office exercised “direct-hire” authority in selecting a candidate who was then sent to EOIR. Rarely, if ever, did EOIR object to a candidate — even if the person lacked any background in immigration law.

Whether the department had the legal right to use the direct-appointing authority to make political hires has been a matter of debate within Justice.

So what does that leave us with? We know the following:

(1) Political considerations were taken into account in the hiring of IJ’s by the admission of Monica Goodling.

(2) The weight of the evidence suggests that Ashcroft also took such considerations into account when re-staffing the BIA.

(3) Kyle Sampson is alleged to be the information source (pdf, p.6) for Goodling (from a statement by Goodling’s attorney, John Dowd):

“Ms. Goodling is aware of the fact that the Office of Legal Counsel never issued a formal opinion on the matter, and she did not suggest otherwise in her testimony before the House Judiciary Committee. Around the time Ms. Goodling became White House liaison in April 2005, Mr. Kyle Sampson told her that Acting Assistant Attorney General Daniel Levin had advised that Immigration Judgeships were not subject to the civil service rules applicable to other career positions. Ms. Goodling testified consistently with these facts before the House Judiciary Committee.”

(4) The DOJ claims that no policy exempting IJ or BIA employees from the civil service rules is in place.

(5) According to information gleaned from the Gonzalez case, the DOJ had been using fast-track authority to appoint IJ and BIA personnel for years prior to either Goodling or Sampson working there.

Obviously there is a conflict here, and one that will get very interesting for the White House, and for Kyle Sampson in particular. I should note that Sampson is a very tempting fall guy here, since not only does the Goodling testimony finger him as the person who told her the civil service rules didn’t apply, he is also the source of the List. But Facts #2 and #5 above would seem to destroy any possibility that Sampson acted on his own volition, and made a decision on his own to ignore federal law. Nevertheless, there are only two choices here: (A) Sampson acted on his own and directed Goodling to ignore the civil service rules, or (B) the DOJ had a policy in place of “fast-tracking” IJ and BIA hires that circumvented the civil service rules, which policy came directly from the White House.

Neither scenario is particularly rosy for the Administration. If Sampson truly was the rogue deputy running roughshod over the DOJ without the knowledge or consent of Gonzales, then the AG was remarkably incompetent both in hiring Sampson and in managing him, and Gonzales should be fired.

If, on the other hand, Sampson was acting in concert with instructions from the AG and the White House (as seems likely), then Gonzales and the Administration actively flouted the law, and therefore the AG must go and the Administration should face further scrutiny as well as possible criminal charges.

The one saving grace for the White House is that the law on hiring IJ and BIA personnel does appear to be “murky”, as described by law professor Bill Ong Hing, who teaches immigration law at the University of California-Davis School of Law. Accordingly, there may not have been anything illegal that took place. Even so, the Administration’s statements now in denying any such policy signal that they at least think there was something amiss. As they say, it’s always the cover up.

No matter what happens from here on out, the Bush Administration will suffer for this whole fiasco. Even if Sampson acted completely on his own (which I really doubt at this point), he will lie about it and his eventual testimony will be used to cripple further Executive endeavors. The worst case scenario is, or course, that the Bush Administration directed that such hires be done outside the usual vetting process, never made the appropriate official determinations as required by the law, pursued that policy with vigor, and then tried to cover it up after the Goodling testimony came to light.

Pending new information on the matter, I’ll make the bold predictions that Alberto Gonzales is gone before the end of the week, and that the Administration faces criminal proceedings over this mess before the end of the year. Potentially, there is Watergate level of seriousness to these charges, but I have little confidence in the Democrats’ ability to push for more than short-term political gain on the matter. Accordingly, the end result will be a new AG (please not Miers!) and a settled criminal case that permanently puts the Bush Administration in “lame duck” status.

Technorati Tags: Gonzales, Attorney-Gate, Monica Goodling, Kyle Sampson, immigration judges, Bureau of Immigration Appeals, DOJ, civil service rules, White House scandal

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