The Banality of Politicization

Boy, we've got a doozy this afternoon---the latest in-house investigation of politicization at the Justice Department, released today by AG's Inspector General and Office of Professional Responsibility. You can find it here at the DOJ website.

The investigation focuses on the Attorney General’s Honors and Summer Law Intern Programs for recent law-school graduates. The culprits this time are Mike Elston, chief of staff to Deputy AG Paul McNulty, and Esther MacDonald, an associate AG counsel. There's also a whistleblower---a career prosecutor, as you might guess, named Dan Fridman who served on the screening committee that vetted applicants for the programs along with McNulty and MacDonald. Among this gang, Fridman was the only non-political appointee.

The saga starts with the initial DOJ audit, a department-by-department analysis that uncovered some unusual trends in the intern and honor student selection process:

For example, in trying to determine why 49 of the 53 SLIP candidates the Antitrust Division had chosen were deselected, Antitrust personnel conducted Internet searches on some of the candidates. They discovered that one, a Harvard Law School student with good grades who had graduated summa cum laude in economics from New York University, had worked for Senator Hillary Clinton, while another candidate had a MySpace page on which someone had posted an unflattering cartoon about President Bush and Vice President Cheney. These results, along with the absence of any explanation from the Screening Committee for the large number of deselections, led to speculation in the Antitrust Division that the Committee had considered political affiliations . . .

Similarly, 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. The attorney noted, for example, that in one case, a student who was in the top 5% of his class at Cleveland State Law School and who had worked for Congressman Kucinich was deselected, but the Division was permitted to interview another Cleveland State student who was only in the top 20% of the class but whose application did not identify any particular political experience or leanings . . .

A senior attorney in the Civil Division’s Appellate Branch conducted an analysis of the 59 candidates that were deselected out of 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.

Fridan, who gave ample testimony to the IG's investigation, provided more specific and anecdotal details. Some examples from the report:

Fridman said McDonald also circled or otherwise identified items on candidates’ applications about which she apparently had concern, such as membership in certain organizations like the American Constitution Society, having a clerkship with a judge who was perceived as a liberal, having worked for a liberal Member of Congress, or having worked for a liberal law school professor. Fridman said the general thrust of McDonald’s written objections were to people who had an “activist view” of the law or DOJ’s role in helping laws to evolve. He said that it appeared from McDonald’s notations on the applications that her concerns about candidates’ affiliations led McDonald to put their applications in the questionable pile, regardless of whether they had good grades or had attended a top law school. Fridman said that he considered only the candidate’s grades . . .

This next one is truly remarkable, as an assistant counsel at the US Attorney General's office expresses open contempt for laws her department is tasked to enforce:

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.” She wrote in the e-mail:

Poverty & Race Research Council actively works to extend racial discrimination through increased affirmative action and, while there, [the candidate] helped draft document arguing that federal law requires recipients of federal funding to seek actively to discriminate in favor of minorities (racial, language, and health) rather than merely to treat all applicants equally; Greenaction is an extreme organization founded by Greenpeace members and promoting civil disobedience and engaging in violence in protests, and the organization adheres to the Principles of Environmental Justice, which are positively ridiculous (e.g., recognizing ‘our spiritual interdependence to the sacredness of our Mother Earth’ and ‘oppos[ing] military occupation, repression and exploitation of lands, peoples and cultures, and other life forms’); [the candidate] also is/was a member of Greenpeace; [the candidate’s] essay is filled with leftist commentary and buzz words like ‘environmental justice’ and ‘social justice.’ . . . (Emphasis added.)

Gee, guess there haven't been a whole lotta affirmative actions cases filed lately,eh?

In the e-mail, McDonald noted that she deemed another candidate unacceptable because the candidate was “active in ACS.” Fridman said that he believed McDonald was referring to the American Constitution Society, an organization that was intended to be a progressive” counterpart to the more conservative Federalist Society. However, we determined that this candidate’s application did not mention his membership in the American Constitution Society or ACS. Fridman said he believed that McDonald must have obtained this information from the Internet . . .

In the November 29 e-mail, in voting no for another candidate McDonald also noted, among other things, that the “essay also states that she wants to work for DOJ to ‘have more of an impact on the judicial system.’ DOJ’s purpose is not to impact the judicial system but to enforce the law . . . .” In the same e-mail, 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.”

Okay, how about a paper trail---the aspiring interns' applications themselves? Well, heh heh, this being the Bush crime syndicate Administration, they don't exist anymore.

Elston’s staff assistant told us that [MacDonald's] office did not have room to store the hundreds of applications and, because they contained personal information about the applicants, she placed them in the burn box for destruction shortly after the review process was completed in early 2007. The staff assistant said she did not recall consulting Elston or anyone else before destroying the applications.

Esther MacDonald (surprise, surprise) declined to be interviewed for the IG's report. And Mike Elston? Of course, he don't know nuthin':

We showed Elston many similar applications of highly qualified applicants with either liberal or Democratic Party affiliations who had been deselected. Elston said he could not recall these applications and could not explain why they had been deselected.

A bit later, though, Mikey warms up a bit and takes a stab at a few, er, reasons for disqualifying certain applicants:

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. Elston stated:

[T]hose kinds of things [in essays] strike me as being, as being an indication that this person views it all right to put their own judgment about what’s right and wrong ahead of what the law, or, or policy requires
. . . But it’s just not the job of a line career attorney to, you know, decide in a metaphorical sense what’s right and wrong . . .

Translation: Brain in Justice = good. A moral code? Less so.

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. AAG Keisler had sent Elston an 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.” Elston said he could not recall why he did not grant this appeal and that he would have granted it at the time of his interview with us. Elston noted that the date of the e-mail exchange with Keisler discussing this candidate was November 24 and “by this time I was really tired of these things.”

There's a dedicated civil servant for you:

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,” explained that his interest had been heightened by his friendship with the victim of a sexual assault 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.” Elston stated that his essay was not sufficient to express an interest in the Criminal Division because the Division “doesn’t prosecute sex offenders” and “does very different things than U.S. Attorneys’ Offices.” 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), which was a “pet peeve” of Elston’s.

At this point, the IG report calls rampant bullshit:

We note that Elston’s statement that the Criminal Division does not prosecute sex offenders is incorrect. The Child Exploitation and Obscenity Section of the Criminal Division prosecutes violations of federal law related to producing, distributing, receiving, or possessing child pornography, transporting women or children interstate for the purpose of engaging in criminal sexual activity, and traveling interstate or internationally to sexually abuse children. In addition, this Section has jurisdiction to prosecute cases of child sexual abuse on federal and Indian lands.

And the IG's conclusion? Laws were broken:

Based on the results of our investigation, we concluded that McDonald 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 . . .

As explained below, we concluded that Elston violated federal 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.

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. For example, as discussed above, Elston said he rejected two highly qualified candidates with liberal affiliations because he was offended by the appeals submitted by the Division which he thought showed a lack of deference to the Screening Committee.

Give the entire report a read sometime. It's a fascinating look at how a few well-placed appointees can turn an entire apparatus of government into a partisan political organization. Just in case you needed any more evidence. And if these people went to this much trouble to screen out troublesome interns, just imagine how they scrutinized other employees, like, oh, Assistant AGs and dudes like that.

---Vitelius