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Legal Times: It All Started With Ashcroft

August 11, 2008
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By GAP Homeland Security Director Jesselyn Radack.

Recent reports from the Justice Department’s watchdog agencies focus on politicized hiring, but not politically motivated firing. Unfortunately, the department under President George W. Bush has engaged in both. I know. I have the scars to prove it.

The report released on July 28 by the Justice Department’s Office of Inspector General and its Office of Professional Responsibility concluded that the department had systematically and illegally inserted politics into its hiring process for career prosecutors and immigration judges. That report follows another that looked at partisanship infecting the honors and intern hiring programs. The focus of media coverage has been on actions taken after Alberto Gonzales became attorney general in early 2005.

I’ve no interest in defending Gon­zales, but it didn’t start with him. It started with his predecessor, John Ashcroft.

These days Ashcroft is enjoying a flurry of favorable notice, a function of historical amnesia. It should be remembered that he was the one who first decided that the honors program—long overseen by career attorneys and viewed as highly competitive and apolitical—would benefit from more direct participation by himself and other political appointees.

VOTER REGISTRATION?

In 2001, I was already a senior attorney with the Justice Department, having been recruited through the honors program. I had a history of positive performance reviews, promotions, and merit bonuses. In June of that year, I applied for a counsel position with the Office of the Deputy Attorney General. Noti­fi­cation came back that the office had forwarded my application and résumé “to Kyle Sampson, Associate Director of the Office of Presidential Personnel at the White House. Mr. Sampson works closely with senior Department officials in identifying and selecting qualified candidates for employment.” (Sampson, coincidentally, later followed Gonzales to the Jus­tice Department, becoming his chief of staff.)

It seemed odd that the White House was vetting Justice Department candidates, as the department had always prided itself on being independent and selecting employees on merits alone. But what really caught my attention was when the Presidential Personnel Office requested a copy of my voter registration card.

Although my résumé contained a few left-leaning indicia—for instance, I had served as a student editor on the Yale Journal of Law and Feminism—I had also published pro-government law review articles and earned favorable references from prominent Repub­licans, not to mention the quality of my work with the department over the previous six years. Little did I know that there was a litmus test, and that volunteering for Planned Parent­hood was an automatic disqualifier. Needless to say, I didn’t get the job.

To be fair, I can’t prove that partisanship lost me the job in the deputy attorney general’s office. But that voter registration card does stick in my memory.

GET OUT NOW

I am confident about what happened not too long after that: I was thrown into the dumpster of career attorneys ousted for political reasons.

As an ethics attorney consulted in the high-profile case of John Walker Lindh, dubbed the “American Taliban,” I was forced out after discovering that the full e-mail trail of my advice not to question him without his counsel—advice that was ignored—was missing from the file. During this same time period, I was presented with an untimely, unsigned, and unprecedented blistering performance evaluation and told that if I did not find another job, this evaluation would be placed in my permanent personnel file—a sure career-killer for someone who planned on being a lifelong public servant.

So I resigned in 2002. But I also reported these incidents to the inspector general’s office. And a few months later, my e-mails appeared in a story by Newsweek reporter Michael Isikoff.

Sadly, the only investigation that resulted centered not on how the e-mails disappeared from the file, but on the person who pointed out the problem. The department was far more worried about looking bad in the Lindh prosecution than it was in following rules about ethical lawyering. I became the target of a Kafkaesque investigation by the inspector general, who after six months referred me for criminal prosecution. For what crime I was never told. After nearly a year, the case closed with no charges being brought.

But the Justice Department was not through with me—one month later, the Office of Professional Responsibility referred me to the state bars in which I’m licensed as a lawyer. This referral was based on an inspector general report to which I did not have access. Maryland dismissed the charges in 2005; the D.C. Bar charges are still pending after nearly five years.

Needless to say, I’m not the only lawyer who was booted from the department for political reasons. This race to the partisan bottom eventually climaxed with the summary firings of nine stellar U.S. attorneys in 2006, some of whom the Justice Department said were being terminated for performance reasons. It quickly became clear that the reasons were political.

Last month, we learned that politicized hiring had metastasized throughout the Justice Department. It’s good news that the Office of Inspector General and the Office of Professional Responsibility are finally doing their jobs. It’s too bad that it took six years, hundreds of thousands of taxpayer dollars, and many destroyed careers to get them moving.

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