U.S. Department of Justice

Office of the Inspector General

June 24, 2008

An Investigation of Allegations of 

Politicized Hiring in the 

Department of Justice Honors Program 

and 

Summer Law Intern Program

U.S. Department of Justice

Office of Professional Responsibility
TABLE OF CONTENTS 

I. Introduction......................................................................................1

II. Background on Honors Program and Summer Law Intern 

Program (SLIP)..................................................................................3

A. Changes to Hiring Process Made in 2002 ................................. 4

B. Department Hiring Standards.................................................. 6

III. Hiring for Honors Program and SLIP from 2002 to 2006....................9

A. Component Selection Process .................................................. 9

1. Overview of Processes Used by the Components ............. 9

2. Summary of Processes Used by Individual 

Components................................................................. 12

B. The 2002 Screening Committee ............................................. 15

1. Process Used by the Screening Committee.................... 16

2. 2002 Honors Program and SLIP Data Analysis ............. 19

3. Conclusions on 2002 Honors Program and SLIP 

Hiring Process.............................................................. 32

C. The 2003 to 2005 Screening Committees ............................... 34

1. 2003 Honors Program and SLIP Data Analysis ............. 35

2. 2004 Honors Program and SLIP Data Analysis ............. 35

3. 2005 Honors Program and SLIP Data Analysis ............. 36

4. Conclusions on the 2003 to 2005 Honors Program 

and SLIP Hiring Process ............................................... 37

D. The 2006 Screening Committee ............................................. 37

1. The Screening Committee’s Decisions........................... 37

2. Concerns About the Screening Committee Process 

Raised with the OARM Director .................................... 59

3. Concerns About the Screening Committee Process 

Raised with Elston ....................................................... 60

4. Concerns About the Screening Committee Process 

Raised with the Acting Associate Attorney General ....... 63

E. Initial Proposed Changes to the Honors Program and SLIP 

Hiring Process ....................................................................... 65

F. Additional Revisions to the Honors Program and SLIP 

Hiring Process ....................................................................... 66

G. Evidence as to Whether 2006 Screening Committee 

Members Considered Political and Ideological Affiliations....... 68

i 
1. Lack of a Written Record .............................................. 68

2. Daniel Fridman............................................................ 69

3. Esther Slater McDonald ............................................... 75

4. Michael Elston ............................................................. 79

H. Conclusions on 2006 Honors Program and SLIP Hiring 

Process.................................................................................. 92

IV. Conclusions and Recommendations................................................ 98

APPENDIX.............................................................................................. 103

ii 
INDEX OF CHARTS 

Chart 1: Average Number of Honors Program and SLIP Candidates 

Hired Each Year by Select Components between 2002 

and 2006............................................................................ 10

Chart 2: 2002 Honors Program Candidate Universe.......................... 21

Chart 3: Affiliations of 2002 Honors Program Candidates ................. 22

Chart 4: Affiliations of Academically Highly Qualified 2002 Honors 

Program Candidates ........................................................... 23

Chart 5: 2002 Honors Program Candidate Membership in the 

American Constitution Society and the Federalist Society ... 24

Chart 6: Political Affiliations of 2002 Honors Program Candidates .... 25

Chart 7: Political Affiliations of Academically Highly Qualified 2002 

Honors Program Candidates ............................................... 26

Chart 8: 2002 SLIP Candidate Universe............................................ 27

Chart 9: Affiliations of 2002 SLIP Candidates ................................... 28

Chart 10: Affiliations of Academically Highly Qualified 2002 SLIP 

Candidates....................................................................... 29

Chart 11: 2002 SLIP Candidate Membership in the American 

Constitution Society and the Federalist Society ................ 30

Chart 12: Political Affiliations of 2002 SLIP Candidates .................... 31

Chart 13: Political Affiliations of Academically Highly Qualified 

2002 SLIP Candidates ...................................................... 32

Chart 14: Honors Program Deselection Rates from 2002 to 2006 ...... 39

Chart 15: 2006 Honors Program Candidate Universe........................ 41

Chart 16: Affiliations of 2006 Honors Program Candidates ............... 42

Chart 17: Affiliations of Academically Highly Qualified 2006 Honors 

Program Candidates......................................................... 43

Chart 18: 2006 Honors Program Candidate Membership in 

the American Constitution Society and the 

Federalist Society ............................................................. 44

Chart 19: Political Affiliations of 2006 Honors Program Candidates .. 45

Chart 20: Political Affiliations of Academically Highly Qualified 

2006 Honors Program Candidates .................................... 46

Chart 21: 2006 SLIP Candidate Universe.......................................... 54

Chart 22: Affiliations of 2006 SLIP Candidates ................................. 54

iii 
Chart 23: Affiliations of Academically Highly Qualified 2006 SLIP 

Candidates....................................................................... 55

Chart 24: 2006 SLIP Candidate Membership in the American 

Constitution Society and the Federalist Society ................ 56

Chart 25: Political Affiliations of 2006 SLIP Candidates .................... 57

Chart 26: Political Affiliations of Academically Highly Qualified 

2006 SLIP Candidates ...................................................... 58

iv 
I. Introduction 

This report describes the Office of the Inspector General’s (OIG) 

and the Office of Professional Responsibility’s (OPR) joint investigation 

concerning whether the political or ideological affiliations of applicants 

were improperly considered in the selection of candidates for the 

Attorney General’s Honors Program and the Summer Law Intern 

Program (SLIP) from 2002 to 2006. The Honors Program is a highly 

competitive hiring program for entry-level attorneys in the Department 

of Justice (Department or DOJ), while the SLIP is a competitive paid 

summer internship program in the Department. 

Allegations regarding the politicization of the Honors Program and 

SLIP hiring process received widespread public attention in April 2007 

as a result of a letter to Congress anonymously signed by “A Group of 

Concerned Department of Justice Employees.”1 The OIG and OPR 

already were jointly investigating issues related to the removal of certain 

United States Attorneys, and we decided to expand the scope of our 

investigation to include allegations regarding Honors Program and SLIP 

hiring. 

The OIG/OPR investigation examined Honors Program and SLIP 

hiring from 2002 to 2006. As explained in more detail in Section II, the 

hiring process for the Honors Program and SLIP was significantly 

changed in 2002 when the involvement of political appointees at the 

Department in the hiring process was greatly expanded.

Our investigation examined: (1) whether Department 

components used political or ideological affiliations in assessing 

candidates for the Honors Program and SLIP, and (2) whether the 

Screening Committee convened each year by the Office of the Deputy 

Attorney General (ODAG) to review the list of candidates chosen by the 

various Department components improperly considered political or 

ideological affiliations in deciding whether to approve interviews of these 

candidates. 

This OIG/OPR investigation was conducted by a team of OIG and 

OPR attorneys and OIG program analysts. The team interviewed more 

than 70 individuals who participated in the hiring process, including 

 1 The letter claimed that a number of highly qualified candidates who had 

been selected by career employees to be interviewed for the Honors Program and SLIP 

were rejected by a Screening Committee chaired by the Chief of Staff to the Deputy 

Attorney General. The letter stated that most of the candidates rejected by the 

Committee had Democratic or liberal affiliations. 

1 
political appointees, career attorneys, and human resources personnel. 

The team reviewed thousands of pages of applications, e-mails, and 

other documents from the components who participated in the Honors 

Program and SLIP between 2002 and 2006; from the Office of Attorney 

Recruitment and Management (OARM), which oversees the Honors 

Program and SLIP; and from the Office of the Attorney General (OAG), 

the ODAG, and the Office of the Associate Attorney General (OASG). In 

addition, the team conducted extensive analyses of the applications of 

those candidates who had been approved or deselected by the ODAG 

Screening Committees each year to determine whether candidates with 

apparent liberal or Democratic affiliations on their applications were 

treated in the same or disparate manner as candidates with neutral, 

conservative, or Republican affiliations.2

This report is divided into four sections. Following this 

introduction, the second section provides background information on 

the history of the Honors Program and SLIP, the changes to the hiring 

process in 2002, the complaints about the hiring process that arose 

between 2002 and 2006, and the revamping of the process after 

complaints and public attention in 2007. The second section also 

discusses the standards that govern the Department in hiring career 

employees. The third section contains the findings and analysis of the 

OIG/OPR investigation, focusing first on the hiring decisions made by 

the components and then on the hiring and deselection decisions made 

by the ODAG Screening Committees. The fourth section summarizes 

conclusions reached by the OIG and OPR and our recommendations for 

improvements to the Honors Program and SLIP hiring process. 

 2 In this report, the term “deselected” refers to those candidates the Screening 

Committees removed from the components’ interview lists. 

2 
II. Background on Honors Program and Summer Law Intern 

Program 

The Attorney General’s Honors Program is the exclusive means by 

which the Department hires recent law school graduates and judicial 

law clerks who do not have prior legal experience. The Department’s 

litigating divisions and a few other Department components participate 

in the Honors Program hiring process, which is overseen by the 

Department’s Office of Attorney Recruitment and Management 

(OARM).3 Traditionally, students and judicial clerks apply for the 

Honors Program in late August or early September, interviews are 

conducted in October, and offers are extended by the individual 

components in November. The Honors Program historically has been

very competitive, with the Department receiving hundreds more 

applications than available positions. 

 

 While the Honors Program applications are centrally processed by 

OARM, each component individually hires its own Honors Program 

attorneys. With few exceptions, all Honors Program positions are 

permanent.4 Many component officials told us that they view the 

Honors Program as an extremely valuable recruiting tool and that many 

of the Honors Program attorneys spend a significant portion of their 

legal careers with the Department. 

 The Summer Law Intern Program is the Department’s hiring 

program for paid summer interns.5 Law students apply in the fall for 

summer internships following their second year of law school, or 

following their third year of law school if they will be entering a judicial 

clerkship or full-time graduate law program following graduation. 

Hiring for SLIP positions follows the same general schedule and 

procedure as the Honors Program, except that SLIP candidates are 

interviewed by telephone or are hired based on their applications 

3 In addition to the Department’s litigating divisions, the other Department 

components that participated in the Honors Program and SLIP hiring process included 

the Federal Bureau of Prisons (BOP), the Executive Office for Immigration Review 

(EOIR), the Drug Enforcement Administration (DEA), the Office of Justice Programs 

(OJP), the U.S. Trustee Program, and several U.S. Attorneys’ Offices. We list all the 

components involved in footnote 10. 

4 The DEA and EOIR offer 1- to 2-year clerkships. The BOP and some 

U.S. Attorneys’ Offices hire Honors Program attorneys for 2-year term appointments 

that can lead to permanent employment. 

5 Many components also use volunteer student interns. These volunteers do 

not receive a salary and are not hired as part of the SLIP. 

3 
without an interview. Not all Department components who participate 

in the Honors Program also participate in the SLIP. 

A. Changes to Hiring Process Made in 2002 

In 2002, the Honors Program and SLIP hiring process was 

fundamentally changed as a result of recommendations from a Working 

Group of senior officials from the offices of the Attorney General, 

Deputy Attorney General, and Associate Attorney General. 

 Prior to that time, the number of Honors Program applications 

had begun to decline and, according to the members of the Attorney 

General’s Working Group we interviewed, Department leadership 

wanted to increase both the quantity of applications and the quality of 

the candidates who were applying. In addition, Working Group 

members said they were concerned that the Department was not 

successfully competing with law firms and other employers to attract 

the highest quality candidates. Because it was the “Attorney General’s” 

Honors Program, Working Group members said that Attorney General 

Ashcroft wanted to ensure that the program maintained its prestige and 

attracted the highest quality candidates for all the participating 

components. 

 In addition, the Department had been planning to eliminate the 

paper-based application system for the Honors Program and SLIP and 

instead require candidates to submit applications electronically using a 

computerized program called Avue Digital Services (Avue). Using Avue, 

the Department’s components could view applications online and 

designate the candidates they wanted to interview. The Attorney 

General’s Working Group directed OARM to begin the automated 

process in the 2002 hiring cycle so that it could implement other 

changes the Working Group had recommended. 

 The Attorney General’s Working Group also determined that 

rather than sending career Department attorneys to various locations 

across the country to conduct regional interviews, all Honors Program 

candidates would be brought to Washington, D.C., at the Department’s 

expense, for interviews. According to the members of the Working 

Group we interviewed, this change was intended to allow more 

Department attorneys, particularly political appointees in leadership 

positions, to participate in the interview and hiring process. 

Department officials also told us that they hoped that providing 

candidates an opportunity to meet senior Department officials in 

Washington, D.C., would attract more candidates and allow the 

Department to better compete with law firms for the best candidates. 

4 
 Therefore, in July 2002 the Attorney General’s Working Group 

directed that component heads appoint someone from their front offices 

to coordinate Honors Program hiring in their components. Senior 

Department officials also were encouraged to speak at top law schools 

to recruit applicants for the Honors Program. In addition, a Screening 

Committee, composed of several members of the Working Group, 

reviewed and approved the candidates who the components selected for 

interviews in the 2002 Honors Program and SLIP.6 

The changes implemented in 2002 remained in effect until 2006. 

While the composition of the Screening Committee changed from year to 

year, in general the components did not know who served on the 

Screening Committee or what criteria it applied in reviewing candidates. 

In addition, the Screening Committee gave no reasons or explanations 

for its decision to deselect a candidate from the list of those to be 

interviewed. 

 As discussed in greater detail in Section III, after changes to the 

candidate screening process were implemented in 2002, a few 

complaints arose that the hiring process had been politicized. However, 

OARM officials reported that they received few complaints about the 

process or the decisions of the Screening Committee during 2003 

through 2005. That changed in 2006 when OARM reported that many 

complaints surfaced after the Screening Committee took weeks, rather 

than the normal 2 days, to conduct its review, and deselected an 

unusually large number of seemingly qualified Honors Program and 

SLIP candidates. 

 As a result of the complaints and controversy in 2006, the 

Department changed the hiring process in 2007. Among other changes, 

the screening function performed by political appointees during the 

previous 4 years was replaced with a Screening Committee composed of 

career employees. In Section III, we describe in more detail the changes 

to the hiring process in 2007 and how it currently operates. 

 In the sections that follow, we discuss the evidence we found 

regarding Honors Program and SLIP hiring from 2002 through 2006. 

We then examine the hiring in 2006 in more detail, because in that year 

there were many more complaints that political considerations were 

used in the hiring process. 

 6 Although the Working Group focused on the Honors Program, many of the 

changes, such as automated applications and screening of candidates, were 

implemented for SLIP candidates as well. 

5 
 First, however, we briefly summarize the legal requirements that 

apply to hiring for career attorney positions in the Honors Program. 

B. Department Hiring Standards 

 Positions for DOJ attorneys fall into two broad categories: 

political and career. It is not improper to consider political or 

ideological affiliations when hiring for DOJ political positions. However, 

as discussed below, both DOJ policy and civil service law prohibit 

discrimination in hiring for DOJ career positions on the basis of 

political affiliations. This prohibition applies to attorneys hired for 

permanent positions through the Honors Program as well as summer 

interns hired through the SLIP, because these are considered career 

positions. 

 The Department’s policy on nondiscrimination is contained in the 

Code of Federal Regulations, Section 42.1(a) of 28 C.F.R. Part 42, 

Subpart A, which states: 

It is the policy of the Department of Justice to seek to 

eliminate discrimination on the basis of race, color, 

religion, sex, sexual orientation, national origin, marital 

status, political affiliation, age, or physical or mental 

handicap in employment within the Department and to 

assure equal employment opportunity for all employees and 

applicants for employment (emphasis added). 

While the regulation does not define “political affiliation,” courts have 

considered political affiliation to include “commonality of political 

purpose, partisan activity, and political support.” See, e.g., Curinga v. 

City of Clairton, 357 F.3d 305, 311 (3d Cir. 2004). 

 OARM, the Department component with primary responsibility 

for overseeing career attorney hiring, states on its website: 

The U.S. Department of Justice is an Equal Opportunity/ 

Reasonable Accommodation Employer. Except where 

otherwise provided by law, there will be no discrimination 

based on color, race, religion, national origin, politics, 

marital status, disability, age, sex, sexual orientation, 

status as a parent, membership or nonmembership in an 

employee organization, or personal favoritism (emphasis 

added).7

 7 See www.usdoj.gov/oarm/attvacancies.html. 

6 
In addition to Department policies, the Civil Service Reform Act 

(CSRA) prohibits the Department from discriminating in hiring for 

career positions based on political affiliation. For example, the CSRA 

states that federal agencies must adopt hiring practices for career 

employees in which 

selection and advancement should be determined solely on 

the basis of relative ability, knowledge, and skills, after fair 

and open competition which assures that all receive equal 

opportunity. 

5 U.S.C. § 2301(b). 

Moreover, the CRSA sets forth a series of merit system principles 

by which federal agencies are to manage personnel decisions. One 

principle directly addresses employment discrimination: 

All employees and applicants for employment should 

receive fair and equitable treatment in all aspects of 

personnel management without regard to political 

affiliation, race, color, religion, national origin, sex, 

marital status, age, or handicapping condition, and with 

proper regard for their privacy and constitutional rights. 

5 U.S.C. § 2301(b)(2) (emphasis added). 

Another section of the CSRA also prohibits the consideration of 

political affiliation in personnel matters involving career employees. 

Section 2302(b)(1)(E) prohibits “discriminat[ing] for or against any 

employee or applicant for employment . . . on the basis of . . . political 

affiliation, as prohibited under any law, rule, or regulation.”8 

Section 2302(b)(12) of the CSRA makes it unlawful to “take or fail 

to take any other personnel action if the taking or failure to take such 

action violates any law, rule, or regulation implementing, or directly 

concerning, the merit systems principles contained in section 2301 of 

this title.” As noted above, one merit system principle is that “all 

 8 Use of political affiliation violates Section 2302(b)(1)(E) only when it also 

violates some other “law, rule or regulation.” We asked the Department’s Office of 

Legal Counsel (OLC) whether 28 C.F.R. § 42.1(a) qualified as a predicate for a violation 

of section 2302(b)(1)(E). OLC responded that “[o]ur informal conclusion is that 

28 C.F.R. § 42.1 (2007) and the First Amendment constitute ‘law[s], rule[s] or 

regulation[s]’ that prohibit considering political affiliation in hiring career attorneys to 

Excepted Service Schedule A positions at DOJ.” Career attorneys in the Department 

are Excepted Service Schedule A positions. 

7 
employees and applicants for employment should receive fair and 

equitable treatment in all aspects of personnel management without 

regard to political affiliation . . . .” 5 U.S.C. § 2301(b)(2). 

 These policies and laws do not define “political affiliation.” 

Nonetheless, identifying candidates as “liberal” or “conservative” based 

on the activities or organizations with which they are affiliated can be 

used as a proxy for political affiliation and thus can violate CSRA’s 

prohibition. As we demonstrate later, some members of the Screening 

Committee in 2006 used liberal and conservative affiliations as a proxy 

for political affiliation. 

 Using ideological affiliation can also create the appearance that 

candidates are being discriminated against based on political affiliation. 

In addition, using political or ideological affiliation can violate the 

requirement that the government use hiring practices for career 

positions that ensure it identifies qualified applicants through fair and 

open competition. See 5 U.S.C. §§ 2301(b)(1) – (2). 

As a result, Department policy and the CSRA prohibit using 

political affiliations and may also prohibit using certain ideological 

affiliations in assessing candidates for the Honors Program and SLIP. 

8 
III. Hiring for Honors Program and SLIP from 2002 to 2006 

A. Component Selection Process 

This section examines whether Department components 

considered politics or ideology in selecting Honors Program and SLIP 

candidates to interview and hire. The allegations we received during 

this investigation that political and ideological affiliations were 

considered as factors in evaluating candidates largely centered on the 

decisions of the Screening Committee. We also received complaints 

that the Civil Rights Division used political considerations in hiring for 

the Honors Program. In addition, three Department career employees 

we interviewed said they suspected that, in two separate instances, a 

political appointee involved in the Criminal Division’s hiring process 

may have taken political and ideological factors into account when 

making decisions about candidates. 

In this section, we summarize the hiring process that different 

components used in the Honors Program and SLIP and we describe the 

involvement of political appointees in each component. We also address 

the concerns raised regarding the Criminal Division’s hiring process. 

The issues concerning the Civil Rights Division’s hiring practices are 

being examined in our separate investigation on the hiring, transfer, 

and case assignment decisions in the Civil Rights Division. Thus, for 

purposes of this section, references to “the components” do not include 

the Civil Rights Division unless otherwise specified.9

1. Overview of Processes Used by the Components 

 We determined that in addition to the Civil Rights Division, 14 

components, and 3 U.S. Attorneys’ Offices participated in the Honors 

Program and SLIP between 2002 and 2006.10 Chart 1 shows the 

 

(Cont’d.)

9 The investigation regarding the Civil Rights Division is ongoing. Our findings 

from that investigation will be contained in a separate report when the investigation is 

completed. In addition, the OIG and OPR are jointly investigating the removal of 

various U.S. Attorneys and allegations of politicized hiring decisions by Monica 

Goodling and others. The results of these investigations, which are also ongoing, will 

be described in forthcoming reports. 

10 The 15 participating components included the 6 Department litigating 

divisions – Antitrust, Civil, Civil Rights, Criminal, the Environmental and Natural 

Resources Division (ENRD), and Tax – and the Bureau of Alcohol, Tobacco, Firearms 

and Explosives (ATF), BOP, DEA, EOIR, the Office of Information and Privacy, the 

Office of Intelligence Policy Review, the Office of Justice Programs, the Professional 

Responsibility Advisory Office (PRAO) and the Executive Office for U.S. Trustees. The 

9 
average number of Honors Program and SLIP candidates that were 

hired each year by each of the major components that participated in 

the Honors Program and SLIP during this period. 

Chart 1: Average Number of Honors Program and SLIP Candidates 

Hired Each Year by Select Components between 2002 and 2006 

17

6

25

7

10

15

30

17

4

21

12

25

0

11

2

11

13

0

0

5

10

15

20

25

30

35

ATR BOP CIV CRM CRT ENRD EOIR TAX UST

Honors

SLIP

ATR – Antitrust Division; BOP – Federal Bureau of Prisons; CIV – Civil Division; 

CRM – Criminal Division; CRT – Civil Rights Division; ENRD – Environmental and 

Natural Resources Division; EOIR – Executive Office for Immigration Review; TAX – 

Tax Division; UST – U.S. Trustees. 

 

Each component was responsible for screening applications in 

the Avue system to identify candidates to interview and for submitting 

its candidates to OARM for approval by the Screening Committee. After 

these candidates were approved or deselected by the Screening 

Committee, each component was responsible for interviewing the 

candidates and selecting which candidates would receive offers. 

 

three U.S. Attorneys’ Offices were the Southern District of California, the Western 

District of Michigan, and the Western District of Texas. As discussed in footnote 4, all 

Honors Program attorneys were hired for permanent positions with the exception of 

applicants hired in the BOP, DEA, EOIR, and some U.S. Attorneys’ Offices. In 

addition, the Immigration and Naturalization Services (INS) hired 25 Honors Program 

attorneys and 7 SLIP interns during the fall 2003 hiring cycle, but did not participate 

in the Honors Program or SLIP after that because the INS was transferred to the 

Department of Homeland Security in 2003. Finally, the Office of Legal Counsel and 

the Office of the Solicitor General each hired only a few SLIP interns each year.

10 
 In 2002, after the Attorney General’s Working Group had directed 

that changes be made to the Honors Program screening and interview 

process, Andrew Hruska, then Senior Counsel to the Deputy Attorney 

General, met with the component heads of the Department’s litigating 

divisions to explain the new process. He told them that component 

heads or their immediate front office staff should decide which Honors 

Program candidates they wanted to interview and to interview every 

candidate themselves. We found that as a result of this directive, 

participation by the political leadership of most components in the 

hiring process increased in 2002, but significantly dropped off after 

that. 

We also determined that, other than the directive by Hruska in 

2002 to increase the participation of the political leadership of the 

components, the components were not given other guidance from the 

Department on how to conduct their selection process for Honors 

Program and SLIP hiring. A few components told us that they received 

guidance from the human resource officers within their components on 

the hiring process. 

 We found that, in general, the major criteria considered by the 

components from 2002 through 2006 included grades, quality of law 

school, judicial clerkships, law review experience, work experience, and 

a demonstrated interest in public service. Several of the components’ 

selecting officials told us that they considered it a positive factor when a 

candidate had a federal clerkship, particularly a federal appellate 

clerkship. In addition, some components looked for experience that 

indicated an interest or expertise in the type of law practiced by that 

component. For example, the Antitrust Division valued a background 

in economics, ENRD a background in environmental issues, and the 

Civil Division’s Office of Immigration Litigation (OIL) or EOIR a 

background in immigration law. 

The litigating divisions – Antitrust, Civil (with the exception of 

OIL), Criminal, ENRD, and Tax – told us that they attracted highquality candidates who attended top-tier law schools or who were 

highly ranked at their law schools. In contrast, other components such 

as ATF, BOP, DEA, EOIR, OJP, and PRAO reported that they had more 

difficulty attracting candidates with top grades or from the top-ranked 

law schools. As a result, they did not rely solely on academic standing 

and often placed greater emphasis on factors such as interest and 

expertise in their components’ subject matter. For candidates who 

made it to the interview stage, the selecting officials said that 

performance in interviews, writing samples, and references were also 

considered. 

11 
 The components employed a variety of processes to select 

candidates for the Honors Program and SLIP. With the exception of the 

Criminal Division, which we discuss below, and the Civil Rights 

Division, which will be the subject of a separate report, the witnesses 

we interviewed from the other components said that they did not 

observe any evidence that either political officials or career employees 

involved in the components’ part of the hiring process considered 

political or ideological affiliations in selecting candidates. In addition, 

our review of documents and e-mails did not reveal any evidence that 

those components took into account political or ideological affiliations. 

 We summarize below the selection process used by each of the 

components and the involvement of political appointees in that process. 

We discuss the Criminal Division last, including the concerns raised by 

three Criminal Division employees involved in the selection process. 

2. Summary of Processes Used by Individual 

Components 

 The Antitrust Division used career attorneys to review 

applications, and almost all of the Antitrust Division interviewers were 

career attorneys. An Antitrust Division human resources official told us 

that the Division was generally aware of a directive that had been sent 

at some point from the Department to involve political appointees in 

interviews. However, she said the Division usually included a career 

employee from the Assistant Attorney General’s office rather than a 

political appointee because the political appointees were too busy to 

attend the interviews. All Antitrust Divisions employees we interviewed 

reported that they did not see any signs of political or ideological 

affiliations being taken into account during the component’s review of 

Honors Program or SLIP applications or during the interview process. 

A human resources officer in the Civil Division told us that in 

2002, three or four Counsels in the Division’s front office who were 

political appointees and one career employee detailed to the front office 

reviewed applications and determined who to interview. She said this 

process was used in response to the directive that the front office 

should be involved in all aspects of the hiring process. However, she 

said there were no complaints about the selection process, and the 

committee appeared to make its selections based on merit. 

 The Civil Division human resources officer said that the 

involvement of front office political appointees dropped off significantly 

after 2002. Several other Civil Division employees confirmed that after 

2002 the Civil Division’s Honors Program and SLIP hiring process was 

handled almost entirely by career employees. All Civil Division 

12 
employees we interviewed reported that they had not seen any evidence 

of political or ideological affiliations being taken into account during the 

component’s review of applications or during interviews. 

In the Environmental and Natural Resources Division, a 

committee composed of two senior career attorneys and one political 

official reviewed the applications and compiled the list of candidates to 

be interviewed. One ENRD attorney recalled that they were instructed 

to have a politically appointed official at every interview. The attorney 

said this was impractical because of the busy schedules of the political 

officials. The attorney said that after Attorney General Ashcroft’s 

tenure, the interviews were primarily conducted by career employees. 

He said that the interviewers would meet as a group at the conclusion 

of all interviews to determine whom to recommend for hiring, and the 

list would be submitted to the Assistant Attorney General for ENRD for 

approval. Other witnesses recalled that occasionally the Assistant 

Attorney General would remove a candidate or two from the list, but 

these candidates were always near the bottom of the list and the cuts 

could be explained by lack of merit. All ENRD employees we 

interviewed reported that they did not see any signs of political or 

ideological affiliations being taken into account during the component’s 

review of applications or during the component’s interview process. 

Witnesses from the Tax Division told us that their Division used 

primarily career employees to screen applications and conduct 

interviews. After the interviews, the interviewers would meet as a group 

to determine who would receive offers. According to one witness, 

usually one political employee participated in this meeting in which 

candidates were discussed. This witness said this political official only 

commented upon candidates’ academic qualifications and did not 

appear to take into account the candidates’ political or ideological 

affiliations. All Tax Division employees we interviewed reported that 

they did not see any evidence of political or ideological affiliations being 

taken into account during the Division’s review of applications or 

during the Division’s interview process. 

The witnesses we interviewed from all the non-litigating 

components reported that they used only career employees to screen 

and interview candidates. They told us they were not aware of political 

or ideological affiliations being taken into account in their respective 

components’ selection process. 

The three U.S. Attorneys’ Offices that participated in the Honors 

Program and SLIP hired a total of only four candidates from 2002 to 

2006. No one alleged that political or ideological affiliations were used 

as a factor in selecting these candidates. 

13 
 With regard to the Criminal Division, a Division human resources 

officer told us that the human resources staff would pick the top 400 

Honors Program candidates based on academic standing and then 

divide those applications among the 7 to 10 career attorneys who were 

on the hiring committee.11 Each committee member would individually 

review approximately 40 applications and pick the top 10 in the group. 

The recommendations of the committee members formed the list of 

candidates that the Criminal Division submitted to the Screening 

Committee for approval to interview. 

Teams of Criminal Division political appointees and career 

employees conducted the interviews. All selecting officials would meet 

after the interviews to compile a list of the top-tier candidates in rank 

order, which would be given to a Criminal Division Deputy Assistant 

Attorney General (DAAG) for approval. Witnesses told us that the 

various Criminal Division DAAGs did not always follow the rankings on 

the list and occasionally made offers to candidates who were lower on 

the list of top-tier candidates or who had been interviewed but had not 

made the top-tier list. 

 Three career employees told us they were concerned that on one 

occasion Deputy Chief of Staff Robert Coughlin, a political official on 

the hiring committee, may have taken into account candidates’ political 

or ideological affiliations. One career employee wondered whether 

Coughlin rejected one highly qualified candidate because of the 

candidate’s liberal affiliations. Two other career employees wondered 

whether Coughlin voted to accept a less qualified candidate because of 

the candidate’s conservative and Republican Party affiliations. The 

candidate with liberal affiliations was rated highly by the career 

employees who interviewed him, but he did not receive an offer. 

Conversely, the candidate with conservative and Republican Party 

affiliations was not rated highly by the career employees who 

interviewed him yet received an offer of employment. 

 The career employees also told us that when they questioned 

Coughlin about his ranking of candidates during the group meeting in 

which the candidates were ranked, Coughlin stated that he was basing 

his recommendation on his reactions to the candidates’ interview 

demeanor and interview skills. 

In our interview of him, Coughlin told us he never considered 

political or ideological affiliations in evaluating Honors Program 

 11 The Criminal Division did not participate in the SLIP from 2002 to 2006. 

14 
candidates. While Coughlin said he did not recall any details 

concerning the specific candidate with liberal affiliations, he recalled 

that he recommended the candidate with conservative affiliations 

because the candidate had received a strong recommendation from a 

previous internship with the Criminal Division and not because of the 

candidate’s ideological affiliations. 

 We reviewed the two candidates’ applications and determined 

both candidates had been ranked as having strong credentials, such as 

federal appellate clerkships or high grades that indicated the 

candidates were qualified. In addition, Coughlin’s stated reasons to his 

colleagues and to us for his decisions – the strength of the candidates’ 

performances in interviews and high recommendations from a previous 

internship with the Department – can be appropriate bases to choose 

between two otherwise qualified candidates. Further, our other witness 

interviews and our review of documents and e-mails did not reveal 

evidence that Coughlin considered political or ideological affiliations 

when making his recommendations. Accordingly, we did not conclude 

that Coughlin used inappropriate factors in choosing between the two 

candidates. 

 In sum, we found that while the components had slightly different 

selection processes and criteria for selecting candidates to be forwarded 

to the Screening Committee, the processes were largely controlled by 

career employees, particularly after 2002. Moreover, the components 

considered relevant criteria, including grades, quality of law school, 

judicial clerkships, law review experience, and work experience, 

particularly work experience that related to the components’ areas of 

expertise. We did not find evidence indicating that the components 

considered political or ideological affiliations in selecting candidates. As 

for the Criminal Division, while concerns were raised by several 

employees, we did not find sufficient evidence to conclude that political 

or ideological affiliations were used either to approve or eliminate 

candidates for the Honors Program. 

B. The 2002 Screening Committee 

In this section we examine whether the Screening Committees 

that Department leadership formed each year from 2002 through 2006 

considered politics or ideology in approving or deselecting Honors 

Program and SLIP candidates that the components wanted to interview. 

We examine in turn the decisions made by each year’s Screening 

Committee, beginning with 2002. 

For each year, we provide a summary of our review of documents 

and witness interviews. We also describe the data analysis we 

15 
conducted to determine if there were any patterns in the approval and 

deselection rates between candidates with differing affiliations on their 

applications. 

1. Process Used by the Screening Committee 

We examined the documentary evidence from the Attorney 

General’s Working Group that formulated the changes to the Honors 

Program and SLIP hiring process in 2002, including what criteria 

should be used in approving candidates for interviews.12 E-mails 

indicated the Working Group suggested a range of factors to evaluate 

applicants, including considering only applicants who met at least one 

of the following criteria: ranked within the top 20 percent to 33 percent 

of the law school class, had a federal judicial clerkship, was a member 

of a law review, or attended one of the top 10 to 20 law schools 

identified by U.S. News and World Report. However, according to the 

Working Group members we interviewed, the Working Group did not 

reach a consensus on what criteria to require the components to use. 

We did not find any evidence in the e-mails indicating that the 

Working Group members considered using political or ideological 

affiliations as criteria to evaluating the candidates. In addition, all 

Working Group members we interviewed said that political or 

ideological affiliations were never discussed as criteria to be used in 

screening candidates. For example, Christopher Wray, then Principal 

Associate Deputy Attorney General, said that politics and ideology only 

arose in the context of the concern of trying to be more inclusive. He 

said there was a perception that in past administrations the career 

employees doing the screening may have weeded out candidates 

because the selecting officials were not “comfortable with their political 

persuasion.” He said the political persuasion he was referring to 

pertained to candidates who had been in the military or law 

enforcement, “whether you call that conservative or not.” 

We also examined the process used by the Screening Committee 

in 2002 to approve or deselect candidates that the components 

submitted for interviews. In 2002 the components submitted to the 

Screening Committee a list of 911 Honors Program applicants they 

 12 Andrew Hruska, then Senior Counsel to the Deputy Attorney General, 

described himself as the “scribe” of the Working Group and the point-of-contact for 

OARM. The other Working Group members were Adam Ciongoli, then Counselor to 

the Attorney General; Paul Clement, then Principal Deputy Solicitor General; David 

Higbee, then Deputy Associate Attorney General; Howard Nielson, then Counselor to 

the Attorney General; and Christopher Wray, then Principal Associate Deputy 

Attorney General. 

16 
wanted to interview. However, OARM said that based on that year’s 

budget, only approximately 600 candidates could be brought to 

Washington, D.C., to be interviewed. Therefore, the Screening 

Committee had to pare down the list of nominated Honors Program 

candidates by approximately one-third. 

The components also chose 498 candidates to interview for SLIP 

positions via telephone. OARM said that because the SLIP candidates 

were not being brought to Washington for interviews, there was no 

budgetary reason to limit the number of SLIP interviewees.13

Based on e-mails we reviewed and interviews we conducted, we 

determined that Andrew Hruska, then Senior Counsel to the Deputy 

Attorney General, and David Higbee, then Deputy Associate Attorney 

General, participated in the screening process, and that Howard 

Nielson, then Counselor to the Attorney General, and Adam Ciongoli, 

then Counselor to the Attorney General, may also have participated in 

the screening process. We refer to these four individuals as the 

Screening Committee. 

Hruska and Higbee recalled participating in the screening process 

but could not recall with certainty who else was involved. Nielson said 

he believed that he may have participated, but said he could not recall 

with certainty. Ciongoli said he recalled attending an initial meeting 

where the screening process was discussed, but did not recall 

participating in the screening itself. According to e-mails, OARM 

trained Hruska, Higbee, Nielson, and Ciongoli on using the Avue system 

around the time the Screening Committee conducted its review. All 

four told us that their involvement with the Honors Program and SLIP 

was a very small part of their work duties, and because of that and the 

passage of the time they said they had difficulty recalling with 

specificity anything about their work on Honors Program and SLIP 

hiring. 

 Hruska and Higbee told us they recalled individually reviewing 

applications rather than meeting as a group to review them. Hruska 

said he did not recall how the final decisions were made. Higbee said 

he believed the each screener reviewed the same set of applications and 

that someone in the Deputy Attorney General’s office tallied the votes 

and made the final decisions. 

 13 Hruska said he believed there were constraints other than the travel budget 

that required the number of SLIP candidates to be cut, but he could not recall what 

those constraints were. 

17 
With one exception, our review of e-mails did not disclose 

evidence that the Committee members discussed political or ideological 

affiliations in evaluating the candidates. However, in one e-mail 

exchange Hruska forwarded an application from a candidate from 

Montana to William Mercer, then U.S. Attorney for the District of 

Montana. Hruska asked Mercer if this was “someone we want at DOJ?” 

Mercer responded by e-mail that he was inquiring with a reference the 

candidate listed whom Mercer knew to find out “the scoop on intellect, 

personality, etc.” Mercer added: 

My initial reaction is that the guy is probably quite liberal. 

He is clerking for a very activist, ATLA-oriented justice.14 

His law review article appears to favor reintroduction of 

wolves on federal lands, a very controversial issue here 

which pits environmentalists against lots of other interests, 

including virtually all conservative and moderate thinkers. 

I know of better candidates through our internship and 

clerkship programs who have applied to the honors 

program.

When we questioned Mercer about this e-mail, he said he did not 

recall being asked about this candidate, although he had a vague 

recollection of talking to the reference named in the candidate’s 

application about the candidate. Mercer said he probably assumed that 

Hruska was asking about a candidate for a political appointment such 

as a special assistant, rather than for the Honors Program. However, 

Mercer said he could not say why he referred to the Honors Program in 

his e-mail. He said he understood in 2002 that while the candidates’ 

liberal affiliations would have been legitimate considerations for a 

political position, they would not have been legitimate considerations 

for an Honors Program position.15

We determined that the Screening Committee deselected 307 

Honors Program candidates and approved 604, while it deselected 185 

SLIP candidates and approved 313. 

Hruska said he recalled that the Committee was pressed for time 

and that the Committee members had trouble getting the application 

materials to review either in print or on the computer. He said that it 

was a more scattered review process and not the complete analysis that 

he originally had envisioned. Hruska and Higbee said that they used 

 14 ATLA refers to the American Trial Lawyers Association. 

15 This candidate was deselected by the 2002 Screening Committee. 

18 
criteria such as grades, quality of law school, extracurricular activities, 

and clerkships to evaluate the candidates. Hruska, Higbee, Nielson, 

and Ciongoli all said they had no reason to believe that anyone 

considered political or ideological affiliations in screening the 

candidates.16

At the time, some newspaper articles reported concern within the 

Department about the changes in the Honors Program hiring process.17 

OARM Director Louis DeFalaise said that he was aware of general 

complaints in 2002 that the process had been taken away from the 

career employees and transferred to political appointees (with the 

implication that the changes had politicized the process), although 

DeFalaise said no one specifically complained to him that political or 

ideological affiliations were considered in the screening process. 

2. 2002 Honors Program and SLIP Data Analysis 

We conducted extensive data analysis of the applications of 

Honors Program and SLIP candidates who were approved or deselected 

by the Screening Committee in 2002 to detect any patterns in the 

approval and deselection rates between candidates with differing 

affiliations. First, we examined the work experience and extracurricular 

activities of all candidates reviewed by the Screening Committee and 

compared the deselection rates for candidates who had affiliations with 

liberal groups on their applications with the deselection rates for 

candidates who listed affiliations with conservative groups.18

 

(Cont’d.)

16 Our review of the records indicates that at least two components, ENRD 

and the Civil Division, complained that the Screening Committee had cut quality SLIP 

candidates without explanation. Hruska said he believed the Committee resolved 

those complaints, but he could not recall the specifics. 

17 For example, a 2003 Washington Post article reported that the Honors 

Program had been moved “firmly under the control of Attorney General John D. 

Ashcroft and his senior aides, prompting complaints that the effort is being politicized, 

according to current and former department officials.” Dan Eggen, Justice Dept. 

Hiring Changes Draw Fire; Law Grads Chosen Based on Politics, Say Critics, The 

Washington Post, Jan. 12, 2003. 

18 We recognize that these determinations are not precise and that 

categorizing organizations as liberal or conservative can be somewhat subjective. The 

appendix contains a listing of those organizations we categorized as liberal or 

conservative in our analysis of the candidates’ affiliations. For example, we 

categorized as “liberal” organizations promoting causes such as choice in abortion 

issues, gay rights, defense of immigrants, separation of church and state, and privacy 

rights. Examples of organizations we considered liberal include Earthjustice, the 

American Civil Liberties Union, Planned Parenthood, Lambda Law Association, and 

Ayuda. We categorized as “conservative” groups promoting causes such as defense of 

religious liberty, traditional family values, free enterprise, limited government, and 

19 
Second, we examined the applications of deselected candidates 

who met high academic standards to determine if there were any 

differences in the deselection rates between highly qualified candidates 

with liberal affiliations on their applications and highly qualified 

candidates with conservative affiliations. 

Third, we separately analyzed the applications for candidates who 

listed membership in the Federalist Society, a group generally 

considered to be conservative, and the American Constitution Society, a 

group generally considered to be liberal, to determine if there were any 

differences in the deselection rates for candidates who reported an 

affiliation with either group.19

Finally, we examined the candidates’ applications to determine 

whether the candidate listed work experience or membership with a 

Republican or Democratic politician or organization. We grouped these 

candidates as “Republican Party affiliated” or “Democratic Party 

affiliated” and compared the deselection rates between these two 

groups. 

The results of our analysis for the Honors Program and SLIP 

candidates that were reviewed by the 2002 Screening Committee are 

discussed in the sections below. 

a. 2002 Honors Program Data Analysis 

As noted above, OARM stated that the 2002 budget could only 

support bringing approximately 600 candidates to Washington for 

interviews. We found that 11 components submitted 911 Honors 

Program applicant names to the Screening Committee for review, of 

which 604 (66 percent) were approved and 307 (34 percent) were 

initially deselected by the Screening Committee. The components 

subsequently appealed 20 deselected candidates and the Committee 

agreed that all of those candidates could be interviewed. 

 

right to life issues. Examples of groups we considered conservative include the 

Federalist Society, the Alliance Defense Fund, the Christian Legal Society, and the 

Family Research Council. In reviewing candidates’ applications, we considered a 

candidate’s affiliations to be “neutral” if the organizations listed did not have an 

apparent liberal or conservative viewpoint, or if the candidate listed affiliations with 

both liberal and conservative organizations. 

19 According to its website, the Federalist Society for Law and Public Policy 

Studies is “a group of conservatives and libertarians interested in the current state of 

the legal order.” www.fed-soc.org (accessed May 9, 2008). The American Constitution 

Society for Law and Policy, according to its website, “is one of the nation’s leading 

progressive legal organizations.” www.acslaw.org (accessed May 9, 2008). 

20 
Chart 2: 2002 Honors Program Candidate Universe 

20 (2 percent)

307 (34 percent)

604 (66 percent)

0

100

200

300

400

500

600

700

Approved Deselected Reinstated After Appeal

(1) Ideological Affiliations 

Based on the results of our analysis of the applications, we found 

that 100 (11 percent) of the candidates nominated by the components 

had liberal affiliations, while 46 (5 percent) had conservative affiliations, 

and 765 (84 percent) had neutral affiliations. Chart 3 shows the 

approval and deselection rates for candidates grouped by their 

affiliations.20

 20 The appendix contains the listing of affiliations that we categorized as 

conservative or liberal. 

21 
Chart 3: Affiliations of 2002 Honors Program Candidates 

20

42

542

80

4

223

0

100

200

300

400

500

600

Liberal (n=100) Conservative (n=46) Neutral (n=765)

Approved

Deselected

As the chart indicates, the Screening Committee deselected 80 

(80 percent) of the 100 applicants with liberal affiliations, 4 (9 percent) 

of the 46 applicants with conservative affiliations, and 223 (29 percent) 

of the 765 candidates with neutral affiliations.

We next examined a subset of deselected candidates who met 

high academic standards to determine if there were any differences in 

the deselection rates between highly qualified candidates with liberal 

affiliations and highly qualified candidates with conservative affiliations. 

We considered candidates to be highly qualified if they met each of the 

four criteria that the Working Group had discussed in evaluating 

applicants: 

• Attended a top 20 ranked law school,21

• Was in the top 20 percent of the class, 

• Had a federal judicial clerkship, and 

• Was a member of the law review. 

 21 We used the top 20 law schools in 2002 as ranked by U.S. News and World 

Report: Yale, Stanford, Harvard, Columbia, New York University, University of 

Chicago, University of Michigan, University of California at Berkeley, Duke, University 

of Pennsylvania, Northwestern, Cornell, Georgetown, University of Texas, University of 

California at Los Angeles, Vanderbilt, University of Iowa, University of Minnesota, 

University of Southern California, and Washington and Lee. 

22 
There were a total of 71 candidates selected by the components 

who met all four criteria. Forty-five (63 percent) were approved by the 

Committee, and 26 (37 percent) were deselected. Chart 4 illustrates the 

breakdown of approved and deselected applicants who met all of these 

criteria. 

Chart 4: Affiliations of Academically Highly 

Qualified 2002 Honors Program Candidates 

3 5

37

15

0

11

0

5

10

15

20

25

30

35

40

Liberal (n=18) Conservative (n=5) Neutral (n=48)

Approved

Deselected

The data indicates that the candidates with liberal affiliations 

were deselected at a much higher rate (15 out of 18) than candidates 

with conservative affiliations (0 out of 5) or candidates with neutral 

affiliations (11 out of 48), even though all candidates met the same 

criteria. 

We also examined membership in the American Constitution 

Society and Federalist Society to determine if there were any differences 

in the selection rates for candidates who reported an affiliation with 

either of these groups. The following chart describes these results. 

23 
Chart 5: 2002 Honors Program Candidate Membership in the 

American Constitution Society and the Federalist Society 

0

27

7

2

0

5

10

15

20

25

30

American Constitution Society

(n=7)

Federalist Society (n=29)

Approved

Deselected

We found that all 7 applicants who indicated that they were 

American Constitution Society members were deselected by the 

Screening Committee for interviews, while 2 of the 29 applicants who 

indicated that they were members of the Federalist Society were 

deselected.22

(2) Political Affiliations 

We next examined those applications where the candidate 

indicated he or she worked for a politician or political group. We 

grouped these as applicants affiliated with the Democratic Party or the 

Republican Party.23

 22 One of the two deselected Federalist Society members was subsequently 

reinstated after appeal. 

23 There were also some cases where the applicants worked for both 

Democrats and Republicans. We considered these cases to be neutral. In addition, 

there were instances where we were unable to determine which party the applicant 

worked for because the information provided on the application was not detailed 

enough, such as when an applicant stated he worked for the Senate Judiciary 

Committee without any further specification. 

24 
Of the 911 applications reviewed by the Committee, 61 contained 

information indicating Democratic Party affiliations and 46 contained 

information indicating Republican Party affiliations. Chart 6 shows the 

approval and deselection rates for each group. 

Chart 6: Political Affiliations of 2002 Honors Program Candidates 

18

41

545

43

5

259

0

100

200

300

400

500

600

Democrat (n=61) Republican (n=46) Neutral (n=804)

Approved

Deselected

The proportion of Democratic Party affiliated applicants 

deselected by the Screening Committee was significantly higher 

(70 percent, or 43 out of 61) than the proportion of Republican Party 

affiliated applicants (11 percent, or 5 of 46) or the proportion of neutral 

affiliated applicants (32 percent, or 259 out of 804) deselected by the 

Committee. 

We also examined the 71 highly qualified candidates (both 

approved and deselected) who met all of the Screening Committee’s 

criteria and determined that 14 of those candidates indicated an 

affiliation with the Democratic or Republican Party. Chart 7 shows the 

approval and deselection proportions for these groups. 

25 
Chart 7: Political Affiliations of Academically 

Highly Qualified 2002 Honors Program Candidates 

5

3

37

6

0

20

0

5

10

15

20

25

30

35

40

Democrat (n=11) Republican (n=3) Neutral (n=57)

Approved

Deselected

We found that the highly qualified candidates meeting all of the 

Screening Committee’s criteria whose applications reflected Democratic 

Party affiliations were deselected at a higher rate (54 percent, or 6 out 

of 11) than highly qualified candidates whose applications reflected 

Republican Party affiliations (0 percent, or 0 out of 3) or neutral 

affiliations (35 percent, or 20 out of 57). 

b. 2002 SLIP Data Analysis 

 In 2002, 8 components submitted 498 SLIP applicant names to 

the Screening Committee for review, of which 313 (63 percent) were 

approved and 185 (37 percent) were deselected. No component 

appealed any of the deselected applicants. As discussed above, the 

components interviewed SLIP candidates by telephone. 

26 
Chart 8: 2002 SLIP Candidate Universe 

0

185 (37 percent)

313 (63 percent)

0

50

100

150

200

250

300

350

Approved Deselected Reinstated After Appeal

Similar to the analysis conducted with the 2002 Honors Program 

candidates explained in the previous section, we analyzed the 

applications and affiliations of the SLIP candidates who had been 

approved or deselected by the Screening Committee.

(1) Ideological Affiliations 

Our analysis of the applications indicated that 81 (16 percent) of 

the SLIP candidates had liberal affiliations, 29 (6 percent) had 

conservative affiliations, and 388 (78 percent) had neutral affiliations. 

Chart 9 shows the approval and deselection rates for candidates 

grouped by their affiliations.

27 
Chart 9: Affiliations of 2002 SLIP Candidates 

13

28

272

68

1

116

0

50

100

150

200

250

300

Liberal (n=81) Conservative (n=29) Neutral (n=388)

Approved

Deselected

Similar to the Honors Program, the proportion of applicants with 

liberal affiliations who were deselected by the Committee (68 out of 81, 

or 84 percent) was significantly higher than that of applicants with 

conservative affiliations deselected by the Committee (1 out of 29, or 

3 percent) and applicants with neutral affiliations who were approved 

by the Committee (116 out of 388, or 30 percent). 

We designated 112 applicants as highly qualified because they 

met at least three out of the four academic criteria that had been 

identified by the Working Group as indicative of a qualified candidate.24 

Seventy-five of these applicants were approved (67 percent) by the 

Screening Committee and 37 (33 percent) were deselected. Chart 10 

shows the ideological affiliations of approved and deselected applicants 

who met at least three of the Committee’s criteria. 

 24 Because most SLIP applicants are first- or second-year law students, they 

would not have received judicial clerkships yet. As a result, we examined a subset of 

candidates who met any three of the Screening Committee’s four criteria of quality 

candidates. 

28 
Chart 10: Affiliations of Academically Highly Qualified 

2002 SLIP Candidates 

7 6

62

18

0

19

0

10

20

30

40

50

60

70

Liberal (n=25) Conservative (n=6) Neutral (n=81)

Approved

Deselected

Seventy-two percent (18 out of 25) of the applicants with liberal 

affiliations who met at least 3 of the Committee’s academic criteria were 

deselected, while none of the applicants who indicated a conservative 

affiliation and met at least 3 of the Committee’s criteria were deselected. 

Twenty-three percent (19 out of 81) of the candidates with neutral 

affiliations were deselected. 

Chart 11 illustrates the difference between the approved and 

deselected SLIP applicants who listed membership in the American 

Constitution Society or the Federalist Society. 

29 
Chart 11: 2002 SLIP Candidate Membership in the 

American Constitution Society and the Federalist Society 

1

12 12

0

0

2

4

6

8

10

12

14

American Consitution Society

(n=13)

Federalist Society (n=12)

Approved

Deselected

We found that 12 of the 13 applicants (92 percent) whose 

applications indicated that they were American Constitution Society 

members were deselected by the Screening Committee for interviews, 

while none of the applicants who indicated they were Federalist Society 

members were deselected by the Screening Committee for interviews.

(2) Political Affiliations 

We next examined applicants who indicated they worked for a 

politician or political group. Chart 12 illustrates the breakdown among 

the approved and deselected applicants who listed a Democratic or 

Republican Party affiliation on their applications. 

30 
Chart 12: Political Affiliations of 2002 SLIP Candidates 

10

21

282

39

4

142

0

50

100

150

200

250

300

Democrat (n=49) Republican (n=25) Neutral (n=424)

Approved

Deselected

The proportion of Democratic Party affiliated applicants 

deselected by the Screening Committee was significantly higher 

(80 percent, or 39 of 49) than the proportion of either Republican Party 

affiliated applicants (16 percent, or 4 of 25) or neutral candidates 

(33 percent, or 142 of 424) deselected by the Committee. 

We also examined the 112 highly qualified applicants (both 

approved and deselected) who met at least three out of the four 

academic criteria and determined that 12 of those candidates indicated 

an affiliation with the Democratic or Republican Party. Chart 13 shows 

the approval and deselection proportions for these groups. 

31 
Chart 13: Political Affiliations of Academically 

Highly Qualified 2002 SLIP Candidates 

3 5

67

4

0

33

0

10

20

30

40

50

60

70

80

Democrat (n=7) Republican (n=5) Neutral (n=100)

Approved

Deselected

We found that the highly qualified candidates whose applications 

reflected Democratic Party affiliations were deselected at a higher rate 

(57 percent, or 4 out of 7) than highly qualified candidates whose 

applications reflected Republican Party affiliations (0 percent, or 0 out 

of 5) or neutral affiliations (33 percent, or 33 out of 100).

3. Conclusions on 2002 Honors Program and SLIP 

Hiring Process 

The overall data indicated a pattern of deselecting candidates 

based on political or ideological affiliations. A disproportionate number 

of the deselected Honors Program and SLIP candidates had liberal 

affiliations as compared to the candidates with conservative affiliations. 

This disproportionate pattern continued to exist when we examined a 

subset of highly qualified candidates based on their academic 

performance. Similarly, the pattern was evident when we compared 

membership in the American Constitution Society versus the Federalist 

Society. The disproportionate pattern of deselection was also evident 

when we compared applicants with Democratic Party affiliations versus 

Republican Party affiliations. 

32 
The 2002 Screening Committee did not maintain a record of the 

basis for its decisions on individual candidates, nor did it provide any 

explanations to the components at the time as to why specific 

candidates were deselected. In our interviews with Screening 

Committee members, conducted in 2007 and 2008, the members stated 

that they did not use political or ideological affiliations in evaluating 

candidates and they could not recall the reasons why individual 

candidates were accepted or deselected. 

We recognize that the passage of time has made it difficult for 

Screening Committee members to recall the basis for their selection or 

deselection decisions. However, even at the time it made its decisions 

the Screening Committee provided no information to the components 

about the deselection decisions or even the criteria the Committee used. 

After we conducted our data analysis, we contacted the 2002 

Screening Committee members again for their comments on the pattern 

that the data revealed. Hruska, through his attorney, declined an 

opportunity to review and comment on the data analysis. The three 

members who reviewed the data analysis said that they never would 

have considered political or ideological affiliations in considering 

candidates for the Honors Program or SLIP. Higbee stated that the data 

“surprised” him and that he did not feel like it was a reflection of the 

work that he did. He noted that he did not know who made the final 

decisions on the applications he reviewed and did not know whether his 

recommendations were overruled.25 Nielson said that he was not 

certain that he participated in the screening process. He also said that 

he was not in a position to go behind our analysis, but that if he took it 

at face value, the results were not what the Department had intended 

and could also indicate that the changes the Working Group 

implemented were a mistake. Ciongoli stated that he had no 

recollection of participating in the screening process, so he could not 

comment on the data analysis. 

In sum, the data showed that candidates with Democratic Party 

and liberal affiliations apparent on their applications were deselected at 

a significantly higher rate than candidates with Republican Party, 

conservative, or neutral affiliations. This pattern continued to exist 

when we compared a subset of academically highly qualified candidates 

from the three groups. However, we found no other evidence that the 

members of the Screening Committee intentionally considered political 

or ideological affiliations in making their deselections, and the 

 25 Higbee also stated that he was not familiar with the American Constitution 

Society and what principles it supported. 

33 
Committee members all denied doing so. While we were unable to 

prove that any specific members intentionally made deselections based 

on these prohibited factors, the data indicated that the Committee 

considered political or ideological affiliations when deselecting 

candidates. 

C. The 2003 to 2005 Screening Committees 

Similar to 2002, each fall between 2003 and 2005 the Office of 

the Deputy Attorney General formed a new Screening Committee of four 

to five members to review the Honors Program and SLIP candidates who 

the components selected for interviews. The members were recruited 

from the Office of the Attorney General, Office of the Deputy Attorney 

General, and the Office of the Associate Attorney General, with at least 

one member from the previous year’s Committee sitting on the newly 

formed Committee in 2004 and in 2005. 

We determined from our interviews and document review that the 

process followed by the Screening Committee remained the same 

between 2003 and 2005. 

Each year, the Screening Committee met at least twice, first to 

review the Honors Program candidates and then to review the SLIP 

candidates the components wanted to interview. According to the 

Committee members we interviewed, each year the Committee followed 

a policy that two Committee members had to vote to deselect a 

candidate, a policy that was not in place with the 2002 Screening 

Committee.26 The Committee members we interviewed said they 

focused on grades, quality of law school, extracurricular activities such 

as law review, and work experience, especially clerkships. Matt Zabel, a 

former Counsel to the Associate Attorney General who served on the 

Screening Committee in both 2003 and 2004, said that he and others 

took their screening duty “very seriously” and tried to err on the side of 

inclusion because “it’s a big deal to get in through the Honors 

Program.” 

The Committee members we interviewed said they were not aware 

of any candidates being deselected due to the candidates’ political or 

ideological affiliations. Based on the results of our review of documents 

and e-mails, we found no evidence that Screening Committee members 

 26 We interviewed Matt Zabel, former Counsel to the Associate Attorney 

General and a Screening Committee member in 2003 and 2004; Theodore 

Cooperstein, former Counsel to the Deputy Attorney General and a Screening 

Committee member in 2003 and 2004; and Wendall Taylor, former Counsel for the 

Deputy Attorney General and a Screening Committee member in 2004 and 2005. 

34 
considered political or ideological affiliation in evaluating the candidates 

from 2003 to 2005. 

In addition, we found that the Screening Committee met the tight 

deadlines established by OARM and made its decisions within a few 

days. 

As described below, we found that each year from 2003 to 2005 

the Screening Committee deselected a relatively small number of 

Honors Program and SLIP candidates. We also analyzed the credentials 

of these deselected candidates to determine if any trends could be 

discerned.

1. 2003 Honors Program and SLIP Data Analysis 

 The 2003 Screening Committee deselected 6 out of 635 Honors 

Program candidates (1 percent) and 10 out of 553 SLIP candidates 

(2 percent) who were nominated by the components for interviews. The 

components did not appeal any of the deselected candidates. 

None of the six deselected Honors Program candidates attended a 

top 20 law school. Three of the six candidates ranked in the bottom 

half of their respective law school classes, while two candidates ranked 

in the top 34 to 50 percent of their law school classes and had C grade 

averages. The remaining deselected candidate did not provide grades 

on his application and attended a law school U.S. News and World 

Report ranked in the bottom quarter of the top 100 law schools. 

Of the 10 deselected SLIP candidates in 2003, only 1 attended a 

top 20 law school, and that candidate was in the bottom half of his 

class. Six additional candidates were ranked in the bottom half of their 

respective law school classes, two of the remaining candidates had 

grade averages in the C range, and the final candidate had a grade 

average in the B range at a law school ranked in the bottom half of the 

top 100 law schools by U.S. News and World Report.

We concluded that the deselection of the 6 Honors Program 

candidates and the 10 deselected SLIP candidates could reasonably be 

explained by a combination of low class rank, low grades, and 

attendance at a lower-tier law school. 

2. 2004 Honors Program and SLIP Data Analysis 

The 2004 Screening Committee deselected 13 out of the 572 

Honors Program candidates (2 percent) and 17 out of an undetermined 

35 
number of SLIP candidates who were nominated by the components for 

interviews.27 

Of the 13 Honors Program candidates deselected in 2004, 9 were 

ranked in the bottom half of their respective law school classes. The 

four remaining candidates had grade averages in the C range, with one 

of those four at a top 20 law school and the other three at schools in 

the bottom half of the top 100 law schools ranked by U.S. News and 

World Report.

Of the 17 SLIP candidates deselected in 2004, 12 had grade 

averages in the C range. Three candidates had grades in the B range at 

schools that were not in the top 20 law schools. The two remaining 

candidates were at top 10 law schools, one with a low B grade average 

and the other with a majority of “passes” rather than “honors” marks 

for grades. 

We concluded that the deselections of these candidates could 

reasonably be explained by a combination of low class rank, low grades, 

and attendance at a lower-tier law school. 

3. 2005 Honors Program and SLIP Data Analysis 

 The 2005 Screening Committee deselected slightly more 

candidates than in the previous 2 years: 46 out of 624 Honors Program 

candidates (7 percent) and 23 out of 433 SLIP candidates (5 percent) 

nominated by the components for interviews. 

Of the 46 Honors Program candidates deselected in 2005, 20 

were in the bottom half of their law school classes. Eight candidates 

were in the top half of their classes but below the top third. Seven of 

those 8 candidates did not attend a top 20 law school, and the 

remaining candidate who attended a top 20 law school had a grade 

average in the low B range. An additional eight of the deselected 

candidates in 2005 attended law schools that did not provide class 

ranks, but their applications revealed they had grades primarily in the 

B, C, “pass” range, or did not provide grades. While 10 deselected 

Honors Program candidates ranked in either the top 20 percent or the 

top 33 percent of their law school classes, all 10 of these candidates 

attended lower-tier law schools. 

 27 The Department was unable to provide the total number of SLIP candidates 

components selected in 2004 for interviews. However, the median number of SLIP 

applications received in 2002, 2003, 2005, and 2006 was 493. 

36 
Of the 23 SLIP candidates deselected in 2005, 21 ranked in the 

lower half of their respective law school classes; another candidate was 

unranked but listed a C grade average; and the one remaining 

candidate ranked in the top 20 percent of his law school class at a law 

school ranked between 40 and 50 with a grade average of 3.48 out of 

4.0. This candidate had only neutral affiliations on his application. We 

did not find the deselection of this 1 candidate out of 23 significant 

enough to represent a trend of academically qualified candidates being 

deselected by the Screening Committee. 

As was the case in 2003 and 2004, we concluded that the 

deselection of these candidates could reasonably be explained by a 

combination of low class rank, low grades, and attendance at a lowertier law school. 

4. Conclusions on the 2003 to 2005 Honors Program 

and SLIP Hiring Process 

We did not find evidence indicating that the Screening 

Committees from 2003 to 2005 used political or ideological affiliations 

as a basis either to accept or deselect candidates. First, there is no 

indication from the documents, e-mails, or witness interviews that the 

Screening Committee members used ideological or political affiliations 

to evaluate candidates. Second, the Screening Committee deselected a 

small percentage of candidates each year, which supports the 

statement by Zabel that Screening Committee members were reluctant 

to deselect candidates and only did so if the candidates did not have 

strong academic credentials. Third, our review of the credentials of the 

deselected candidates supports the conclusion that the deselection 

decisions could reasonably be explained on the basis of a combination 

of low class rank, low grades, and attendance at lower-tier law schools. 

D. The 2006 Screening Committee 

In contrast to the Screening Committees in 2003 to 2005, the 

Screening Committee in 2006 deselected many Honors Program and 

SLIP candidates. These deselections, made without explanation to the 

components, generated significant controversy within the Department. 

We therefore discuss the 2006 process in detail. As we describe below, 

based on the results of our investigation we concluded that two of the 

three members of the Screening Committee inappropriately considered 

political and ideological affiliations in the deselection process. 

1. The Screening Committee’s Decisions 

In 2006, the Screening Committee was chaired by Michael Elston, 

the Deputy Attorney General’s Chief of Staff. The other two members 

37 
were Daniel Fridman, an Assistant U.S. Attorney (AUSA) from the 

Southern District of Florida on detail to the Deputy Attorney General’s 

office, and Esther Slater McDonald, a Counsel to the Associate Attorney 

General. Elston and McDonald were political appointees, and Fridman 

was a career prosecutor.

a. Honors Program Deselections 

On September 29, 2006, 11 components and 1 U.S. Attorney’s 

Office forwarded 602 Honors Program candidates to the Screening 

Committee for review.28 According to the schedule established by 

OARM, the Screening Committee was supposed to provide its list of 

deselected candidates to OARM by October 3 so that interviews could 

begin on October 23. According to OARM, adherence to this tight 

timetable was important to ensure that the Department would not lose 

the best candidates to other employers. However, the Committee did 

not meet OARM’s deadline and did not provide a final list of deselected 

candidates until October 11. 

The Screening Committee deselected 186 out of the 602 Honors 

Program candidates (31 percent). The components were allowed to 

appeal the Screening Committee’s decisions via e-mail to Elston no later 

than the following day, October 12. The components appealed 32 of the 

deselections, and 16 were granted. 

(1) The Components’ Reaction to the 

Screening Committee’s Deselections 

As shown in Chart 14, the number of deselected candidates in 

2006 was much higher than in most previous years (with the exception 

of 2002, when a large number of candidates had to be deselected due to 

budgetary constraints). In 2006, 186 candidates – almost one-third of 

all Honors Program applicants selected by the components for 

interviews – were deselected by the Screening Committee. Screening 

Committees in each of the previous 3 years had deselected no more 

than 46 candidates, or 7 percent. 

 28 The 11 components were the Antitrust Division, the Civil Division, 

the Civil Rights Division, the Criminal Division, the Environmental and Natural 

Resources Division, the Tax Division, the Bureau of Alcohol, Tobacco, Firearms 

and Explosives, the Executive Office for Immigration Review, the Office of 

Justice Programs, the Federal Bureau of Prisons, and the Professional 

Responsibility Advisory Office. 

38 
Chart 14: Honors Program Deselection Rates 

from 2002 to 2006 

911

635

572 624 602

307

6 13 46

186

0

100

200

300

400

500

600

700

800

900

1000

2002 2003 2004 2005 2006

Total

Deselected

As in previous years, the 2006 Screening Committee provided to 

OARM a list of deselected candidates without explanation. As noted 

above, the list was unusually large and some components requested an 

explanation as to why certain candidates had been deselected. Some 

component officials said they sought an explanation to help them 

decide whether to appeal the Committee’s decision or to simply 

understand the basis for what appeared to be inexplicable decisions to 

deselect candidates with high academic qualifications. 

Elston generally responded to these requests for explanations by 

stating that the deselections were made by a committee. While he told 

us he did not remember the basis for individual deselections, he 

suggested to the components at the time that poor grades and poor 

grammar were the reasons for most candidate deselections. 

Many component employees involved in the selection process told 

us they were shocked and upset at the large number of candidates the 

Screening Committee had deselected. They said the impressive 

qualifications of many of the deselected candidates, together with no 

explanation for their deselection, led to widespread speculation that the 

Screening Committee considered political or ideological affiliations in 

deselecting candidates. 

(2) 2006 Honors Program Data Analysis 

We conducted extensive data analysis of the applications of those 

Honors Program and SLIP candidates who had been approved or 

deselected by the Screening Committee in 2006 to detect any patterns 

39 
in the approval and deselection rates between candidates with differing 

affiliations. We first examined the applications of all candidates 

reviewed by the Screening Committee and compared the deselection 

rates for candidates who had affiliations with liberal groups on their 

applications with candidates who had affiliations with conservative 

groups. 

Second, we analyzed the applications of deselected candidates 

who met high academic standards to determine if there were any 

differences in the deselection rates between highly qualified liberally 

affiliated candidates and highly qualified conservatively affiliated 

candidates. 

Third, we separately analyzed the applications for membership in 

the American Constitution Society and the Federalist Society to 

determine if there were any differences in the selection rates for 

candidates who reported an affiliation with either of these groups. 

Finally, we examined the candidates’ applications to determine 

whether the candidates listed work experience or membership with a 

Republican or Democratic politician or organization. We grouped these 

candidates as Republican Party affiliated or Democratic Party affiliated 

and compared the deselection rates between these two groups. 

The results of our analyses for the Honors Program and SLIP 

candidates reviewed by the 2006 Screening Committee are discussed in 

the sections below. 

As noted, in 2006, 11 components and the U.S. Attorney’s Office 

for the Southern District of California forwarded 602 candidates to the 

Screening Committee for review. Of those, 416 candidates (69 percent) 

were approved and 186 (31 percent) were initially deselected by the 

Screening Committee. The components appealed 32 of the deselections 

and 16 were reinstated. Chart 15 illustrates the 2006 Honors Program 

candidate universe. 

40 
Chart 15: 2006 Honors Program Candidate Universe 

16 (3 percent)

186 (31 percent)

416 (69 percent)

0

50

100

150

200

250

300

350

400

450

Approved Deselected Reinstated After Appeal

i. Ideological Affiliations 

Based on the results of our analysis of the applications, we found 

that 150 (25 percent) of the candidates nominated by the components 

had liberal affiliations, while 28 (5 percent) had conservative affiliations, 

and 424 (70 percent) had neutral ideological affiliations. 

Chart 16 shows the approval and deselection rates for candidates 

grouped by their affiliations.29

 29 As noted above in footnote 18, we recognize that these determinations are 

not precise, and categorizing organizations in these ways is subjective. As also 

discussed in Section III(G), according to Fridman and Elston, McDonald determined 

whether candidates had liberal affiliations based in part upon information she found 

when conducting Internet searches that was not reflected on the candidates’ 

applications. However, because we were unable to reconstruct what information 

McDonald obtained from the Internet, our analysis of candidates’ affiliations is based 

upon the information in their applications. Each time we present an analysis where 

the candidates are categorized as having liberal or conservative affiliations, we have 

also included in the appendix the groups that we relied upon in making these 

determinations. 

41 
Chart 16: Affiliations of 2006 Honors Program Candidates 

67

23

326

83

5

98

0

50

100

150

200

250

300

350

Liberal (n=150) Conservative (n=28) Neutral (n=424)

Approved

Deselected

As the chart shows, candidates whose applications indicated 

liberal affiliations were deselected at a higher rate (83 out of 150, or 

55 percent) than candidates who had conservative affiliations (5 out of 

28, or 18 percent) or neutral affiliations (98 out of 424, or 23 percent). 

We also examined a subset of deselected candidates who met 

high academic standards to determine if there were any differences in 

the deselection rates between highly qualified candidates with liberal 

affiliations and highly qualified candidates with conservative affiliations.

To identify a subset of highly qualified candidates, we relied on 

criteria that one of the Screening Committee members, Daniel Fridman, 

described as an indication that the candidates were so highly qualified 

that they merited just a quick check before he approved them. Fridman 

said that if candidates attended a top 20 law school, were in the top 

20 percent of their respective classes, or were at a school that did not 

rank students, he tended to approve them automatically unless they 

had a C on their transcripts.30 We refer to these criteria as the 

“Fridman criteria.” These criteria are consistent with Elston’s 

statements to component officials that he was looking for candidates 

 30 Fridman said that he also frequently approved candidates with lesser 

academic credentials than those described above, but that he would first look at the 

essays or at other factors on those candidates’ applications before making a 

determination.

42 
with good grades who attended good law schools. Thus, all candidates 

meeting the Fridman criteria met academic standards that both 

Fridman and Elston stated they were looking for. 

Therefore, we identified all Honors Program candidates 

nominated by the components who either attended a top 20 law school, 

were ranked in the top 20 percent of the class, or attended a law school 

that did not rank candidates. We then eliminated from that group all 

candidates who had a grade lower than a B on their transcripts.

Chart 17 shows all candidates (both approved and deselected) 

who met the Fridman criteria, and compares the deselection rates 

between candidates of liberal, conservative, and neutral affiliations.

Chart 17: Affiliations of Academically Highly Qualified 

2006 Honors Program Candidates 

52

16

240

35

1

35

0

50

100

150

200

250

300

Liberal (n=87) Conservative (n=17) Neutral (n=275)

Approved

Deselected

Candidates who met the Fridman academic criteria but whose 

applications indicated liberal affiliations were deselected at a much 

higher rate (35 out of 87, or 40 percent) than candidates meeting the 

criteria who had conservative affiliations (1 out of 17, or 6 percent) or 

neutral affiliations (35 out of 275, or 13 percent). 

We also examined all approved and deselected Honors Program 

candidate applications for membership in the American Constitution 

Society and the Federalist Society to determine if there were any 

differences in the selection rates for candidates who reported an 

43 
affiliation with either of these groups.31 Chart 18 describes these 

results. 

Chart 18: 2006 Honors Program Candidate Membership in the 

American Constitution Society and the Federalist Society32

2

4

15

5

0

2

4

6

8

10

12

14

16

American Constitution Society

(n=7)

Federalist Society (n=19)

Approved

Deselected

We found that 5 of the 7 applicants whose applications indicated 

that they were American Constitution Society members (71 percent) 

were approved by the Screening Committee, while 15 of the 19 

candidates (79 percent) who mentioned that they were members of the 

Federalist Society were approved by the Screening Committee for 

interviews. Thus, there was little difference in the selection rates for 

Honors Program candidates based on their stated affiliation with the 

American Constitution Society and the Federalist Society. 

 31 The Federalist Society and the American Constitution Society are 

described further in footnote 19. 

32 One deselected Honors Program candidate was a member of both the 

Federalist Society and the American Constitution Society. That candidate was 

not included in this analysis.

44 
ii. Political Affiliations 

We next examined the applications where the candidates 

indicated work experience with a politician, such as a Member of 

Congress or a state legislator, or membership in a political organization. 

We grouped these as candidates affiliated with the Democratic Party or 

the Republican Party.33 Chart 19 shows the approval and deselection 

proportions for these subsets. 

Chart 19: Political Affiliations of 2006 Honors Program 

Candidates

24 16

376

22

6

158

0

50

100

150

200

250

300

350

400

Democrat (n=46) Republican (n=22) Neutral (n=534)

Approved

Deselected

Candidates who had Democratic Party affiliations were deselected 

at a higher rate (22 out of 46, or 48 percent) than candidates who had 

Republican Party affiliations (6 out of 22, or 27 percent) or did not show 

any party affiliations (158 out of 534, or 30 percent). 

We also examined the 379 highly qualified candidates (both 

approved and deselected) who met the Fridman criteria and determined 

that 45 of those candidates indicated an affiliation with the Democratic 

 33 In some cases, candidates worked for both Democrats and Republicans. We 

considered these candidates to be neutral in affiliation. 

45 
or Republican Party. Chart 20 shows the approval and deselection 

proportions for these groups.34

Chart 20: Political Affiliations of Academically 

Highly Qualified 2006 Honors Program Candidates 

19 13

276

11

1

59

0

50

100

150

200

250

300

Democrat (n=30) Republican (n=14) Neutral (n=335)

Approved

Deselected

 Candidates meeting the academic criteria who had Democratic 

Party affiliations on their applications were deselected at a much higher 

rate (11 out of 30, or 37 percent) than candidates meeting the criteria 

who had Republican Party affiliations (1 out of 14, or 7 percent) or no 

party affiliations (59 out of 335, or 18 percent).

iii. Summary of 2006 Honors Program 

Data Analysis 

Overall, based on the results of our data analysis, we found that 

Honors Program candidates whose applications reflected liberal 

affiliations were deselected at more than three times the rate 

(55 percent) of candidates whose applications reflected conservative 

affiliations (18 percent) and more than twice the rate of candidates 

whose applications reflected neutral affiliations (23 percent). We found 

a similar trend when we examined a subset of highly qualified 

candidates. Highly qualified candidates meeting the Fridman academic 

criteria whose applications reflected liberal affiliations were deselected 

 34 One academically highly qualified candidate worked for both a Democratic 

and Republican official. This candidate was counted as neutral in our analysis. 

46 
at a substantially higher rate (40 percent) than highly qualified 

candidates whose applications reflected conservative affiliations 

(6 percent) or neutral affiliations (13 percent). 

In addition, candidates whose applications reflected a Democratic 

Party affiliation were deselected at a significantly higher rate 

(48 percent) than candidates whose applications reflected a Republican 

Party affiliation (27 percent) or who did not show any party affiliations 

(30 percent). Similarly, highly qualified candidates who had Democratic 

Party affiliations were deselected at a much higher rate (37 percent) 

than candidates who had Republican Party affiliations (7 percent) or 

who did not show any party affiliation (18 percent).

(3) Appeals of Deselected Honors Program 

Candidates 

As noted above, 7 components appealed the deselection of 32 

Honors Program candidates to Elston. Elston granted 16 of the 

appeals, and those candidates were added to the list of interviewees. 

Eleven additional appeals were withdrawn by the components before 

Elston acted on them. In this section, we describe the experience 

encountered by several components in appealing deselected Honors 

Program candidates.

For example, Carol Lam, U.S. Attorney for the Southern District 

of California, appealed the deselection of a candidate and pointed out to 

Elston in an e-mail on October 11 that the candidate had graduated 

from Stanford Law School with distinction and had a Ninth Circuit 

Court of Appeals clerkship. Lam told us she speculated that the 

Committee may have deselected the candidate because the candidate 

was clerking for a judge who was a Clinton appointee or because she 

had written an article on gender discrimination in the military. In her 

e-mail to Elston, Lam asked for an explanation for the deselection. 

Elston replied by e-mail that most deselections were for poor 

grades. He acknowledged, however, that poor grades did not appear to 

be the issue with this candidate, and he offered to check into the 

application and let Lam know whether an appeal would be successful. 

Elston replied later that day: “I have reviewed her application 

materials, Carol. I do not think an appeal will be successful. If it helps, 

she was not selected by the other components to which she applied.” 

Lam responded: “Thanks Mike. Just curious, though – I don’t see 

anything unacceptable in her online application that was made 

available to us. Do the other components see something that I don’t?” 

Elston replied: “Not that I know of, Carol.” 

47 
The Civil Division also attempted to obtain from Elston the 

rationale for the deselection of certain candidates with strong academic 

records before it submitted any appeals. Elston responded to the Civil 

Division that the “vast majority were cut for poor grades. I cannot 

speak to the individual applicants you named at this point.” However, 

when the Civil Division pointed out the excellent academic credentials 

of a deselected candidate who was sixth in his law school class and was 

currently clerking for a federal judge, Elston responded: “There was a 

committee (which was not made up of exclusively ODAG staffers) . . . so 

I am not in a good position to give you reasons others may have had for 

their decision.” This candidate had been an intern with the Public 

Defender Service and had written a paper on the detention of aliens 

under the Patriot Act. After this exchange, the Civil Division appealed 

the deselection of this candidate, along with other candidates. Elston 

denied the appeal of this candidate without explanation. 

Civil Division Principal Deputy Assistant Attorney General 

(PDAAG) Jeffrey Bucholtz told us that in the absence of any explanation 

for the deselection of seemingly qualified candidates, employees in the 

Division speculated that politics was a factor in the Committee’s 

deselection decisions. 

Peter Keisler, the Assistant Attorney General for the Civil 

Division, called Elston after learning that he had denied the appeals of 

several highly qualified candidates. Keisler said he told Elston 

something to the effect of: 

[Y]ou should know that there’s a lot of people who believe 

that these deselections are either irrational or so irrational 

that they are motivated by politics, and that’s a problem, 

you know. Whatever the truth of it is, when this many 

people in a Department are this unhappy about something, 

it’s going to be an issue. 

Keisler gave as an example an appeal of a deselected candidate 

who had good grades at Harvard Law School, had been a successful 

summer intern at the Civil Division, and had worked as a paralegal for 

Planned Parenthood. Elston denied the appeal. Keisler told Elston that 

“some people had said that the only reason she might have been 

deselected is that she had on her résumé something like Planned 

Parenthood or something that would be associated with the abortion 

issue.” According to Keisler, Elston said something like, “well that’s not 

what’s going on. What we’re doing here is rejecting people because of 

48 
academic performance being not up to standards.”35 Following his 

conversation with Keisler, however, Elston allowed this candidate to be 

interviewed. 

In the Tax Division, following the deselection of eight of its Honors 

Program candidates, senior Tax Division career employees analyzed the 

eight deselected candidates and determined that each had attended a 

top law school or was in the top third of his or her class, and that three 

of the deselected candidates had some indication on their applications 

of a liberal political or ideological affiliation. Several Tax Division 

employees opined in a memorandum to AAG Eileen J. O’Connor that 

the deselection of these seemingly otherwise qualified candidates 

presented at least the appearance of discrimination on the basis of 

political or ideological affiliation. 

For example, according to the memorandum, one candidate, a 

Georgetown University law student with good grades, had previously 

worked for Senator Christopher Dodd and Representative Patrick 

Kennedy, both Democrats. Another deselected candidate was the one 

(described above) about whom Keisler had talked to Elston. As a result 

of an Internet search Tax Division attorneys conducted, they discovered 

that this candidate, while an undergraduate, had written for a student 

newspaper an opinion piece critical of a Bush administration proposal 

and, while a Harvard Law student, had spoken out against the 

nomination of Samuel Alito to the Supreme Court. A third deselected 

candidate, who was in the top 25 percent of her law school class at 

Boston University, had worked for a variety of legal service groups 

aimed at assisting indigents and convicts, as well as for a human rights 

center.36 

In the Executive Office for Immigration Review, upon learning 

that a significant number of EOIR’s Honors Program candidates had 

been deselected, Deputy Director Kevin Ohlson reviewed the deselected 

candidates’ applications as well as a few applications of candidates who 

were approved for interviews. Ohlson told us that it appeared that 

“individuals at the Department were rejecting any of our candidates 

who could be construed as . . . left-wing” or who were “perceived, based 

 35 Elston told us that he did not recall Keisler discussing with him a candidate 

who had worked for Planned Parenthood, but said it may have been part of a 

conversation he had with Keisler about the Honors Program and SLIP review process. 

36 No one from the Tax Division questioned Elston about the issues raised in 

this memorandum. We asked Elston about the deselected candidates discussed in 

this memorandum, and he said he had no recollection of the recommendations he 

made regarding these candidates. 

49 
on their applications and résumés and so forth, as being more liberal.” 

Ohlson said that he reached this conclusion based on the fact that 

many of the deselected candidates had had internships with 

organizations such as Human Rights Watch or the American Civil 

Liberties Union (ACLU), or had assisted in defending someone held at 

Guantánamo Bay.37 

b. SLIP Deselections 

The Screening Committee’s deselection of SLIP candidates in 

2006 created more concern among the components about the basis for 

the deselection decisions because a higher number of candidates who 

appeared to be highly qualified were deselected. 

Under OARM’s original timeline, the Screening Committee was 

required to submit the names of deselected SLIP candidates to OARM 

by October 10, with appeals to be decided by October 12. However, the 

Committee did not begin sending lists of SLIP candidates who were 

cleared for interviews or deselected until October 31. The Committee 

continued to send lists to OARM on a rolling basis throughout 

November, with the last list being sent on November 28, the Tuesday 

before Thanksgiving. Under a national agreement in place at the time, 

law firms, judges, and other employers had agreed to hold open offers of 

employment to law students until December 1.38

The components submitted 451 SLIP candidates to the Screening 

Committee. The Screening Committee approved 249 (55 percent) and 

deselected 202 (45 percent). This large number of deselections was 

much greater than in the 3 previous years, when the number of SLIP 

candidates deselected by the Screening Committee each year ranged 

between 10 and 23. The only other year in which the deselection rate 

was anywhere near that of 2006 was 2002, when the Screening 

Committee deselected 185 out of 498 (37 percent). 

 37 Another EOIR employee told us that after half of EOIR’s candidates were 

deselected, EOIR employees believed that political considerations played some role in 

the deselections. 

38 However, law students often accept offers before the December 1 deadline. 

As the Screening Committee fell behind in screening SLIP candidates, OARM reminded 

Elston that the Department would lose well-qualified candidates who accepted offers 

from law firms or other employers. 

50 
(1) The Components’ Reaction to the 

Screening Committee’s Deselections 

According to several witnesses, the components were concerned 

about the substantial delay in the Screening Committee’s review of SLIP 

candidates, the absence of any explanation for the deselections, and the 

appearance that political or ideological affiliations may have been taken 

into account in evaluating candidates. 

Rather than being in a position to conduct SLIP interviews and 

extend offers in late October as OARM originally envisioned, many 

components could not begin the interview process until late November, 

when they finally received their lists of approved candidates. 

Component officials reported to OARM that as the national December 1 

deadline for law students to accept offers drew near, more and more 

students who were contacted for interviews or to whom offers were 

extended responded that they had already accepted an offer from 

another employer.39

In addition to the delay, the components were concerned and 

surprised about the large number and high quality of deselected 

candidates. Because these law students would only work at the 

Department for a few weeks in the summer, component officials told us 

they did not expect that the SLIP candidates would receive such 

stringent scrutiny or that almost half of the candidates chosen by the 

components would be deselected. 

Like the Honors Program, several component hiring officials said 

that the large number of apparently high quality SLIP candidates who 

were deselected led them, in the absence of any explanation from the 

Screening Committee, to suspect that political or ideological affiliations 

played a role. As a result, several component officials conducted their 

own analysis to see if they could determine any patterns or trends in 

the deselections. 

For example, in trying to determine why 49 of the 53 SLIP 

candidates the Antitrust Division had chosen were deselected, Antitrust 

 39 Component officials said the rolling nature of the Screening Committee’s 

review also made it difficult for them to decide to whom they should extend offers, 

since they did not know whether or when additional candidates, who were sometimes 

higher on their list, would be approved for interviews. Out of necessity, the 

components began extending offers during early November to cleared candidates 

without waiting for the completion of the Screening Committee’s review. Because 

most components tried to make offers as soon as possible to whichever candidates 

were cleared by the Committee, few appeals of deselected SLIP candidates were 

submitted to Elston. 

51 
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 

the 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. 

The attorney wrote that “every candidate who had worked for GOP 

legislators at the state or federal level had been approved.” 

52 
 A senior attorney in the Civil Division’s Federal Programs Branch 

likewise conducted an analysis of the 13 candidates out of the 40 

nominated by that office who had been deselected. Among them, six 

were attending Harvard Law School and had either an A or B+ grade 

average, and two were attending Yale Law School and had previously 

worked as summer interns for the Criminal Division’s Counterterrorism 

Section. The remaining five deselected students were attending 

Georgetown, Columbia, Stanford, George Washington, and the 

University of Pennsylvania law schools, and all had good grades. The 

senior attorney noted that several of these candidates listed liberal 

affiliations on their applications. The attorney opined that “what the 

Deputy [Attorney General]’s office has done with the SLIP program is 

nothing short of outrageous.” 

(2) 2006 SLIP Data Analysis 

We conducted an analysis of the SLIP data regarding candidates 

who were approved or deselected by the 2006 ODAG Screening 

Committee similar to the data analysis we conducted on the Honors 

Program candidates discussed in Section III(D)(1). We compared 

deselection rates between candidates with liberal, conservative, and 

neutral affiliations, and between candidates with Democratic or 

Republican Party affiliations. The results of that analysis are discussed 

below. 

In 2006, the components forwarded to the Screening Committee 

451 SLIP candidates, of whom 249 (55 percent) were approved and 202 

(45 percent) were deselected. Eighteen of the 202 deselections were 

appealed and 13 were granted. Chart 21 illustrates the 2006 SLIP 

candidate universe. 

53 
Chart 21: 2006 SLIP Candidate Universe 

13 (3 percent)

202 (45 percent)

249 (55 percent)

0

50

100

150

200

250

300

Approved Deselected Appeal Reinstated

i. Ideological Affiliations 

Based on the results of our analysis of the 451 SLIP candidates 

forwarded to the Screening Committee, we found that 68 (15 percent) 

listed work experience or activities with a liberal group, 16 (4 percent) 

listed work experience or activities with a conservative group, and 367 

(81 percent) had neutral affiliations listed on their applications. 

Chart 22 illustrates these affiliations and shows the approval and 

deselection rates for candidates grouped by their affiliations. 

Chart 22: Affiliations of 2006 SLIP Candidates 

14

223

2

144

12

56

0

50

100

150

200

250

Liberal (n=68) Conservative (n=16) Neutral (n=367)

Approved

Deselected

54 
We found SLIP candidates whose applications reflected liberal 

affiliations were deselected at a much higher rate (82 percent) than SLIP 

candidates who had conservative affiliations (13 percent) or neutral 

affiliations (39 percent). 

We then examined deselected candidates who met high academic 

standards to determine if there were any differences in the deselection 

rates between highly qualified candidates whose applications reflected 

liberal affiliations and highly qualified candidates whose applications 

reflected conservative affiliations.40

Chart 23 shows the approval and deselection rates for the highly 

qualified candidates who met the Fridman criteria.

Chart 23: Affiliations of Academically Highly Qualified 

2006 SLIP Candidates 

77

154

6 5 1

25

0

20

40

60

80

100

120

140

160

180

Liberal (n=31) Conservative (n=6) Neutral (n=231)

Approved

Deselected

Highly qualified SLIP candidates meeting the Fridman criteria 

whose applications reflected liberal affiliations were deselected at a rate 

significantly higher (25 out of 31, or 81 percent) than SLIP candidates 

meeting the Fridman criteria whose applications reflected conservative 

affiliations (1 out of 6, or 17 percent) or neutral affiliations (77 out of 

231, or 33 percent). 

We also examined membership in the American Constitution 

Society and the Federalist Society to determine whether there were any 

differences in the deselection rates for candidates who reported an 

 40 As described in Section III(D)(1)(a), to identify highly qualified candidates, 

we relied on the Fridman criteria in this analysis. 

55 
affiliation with either of these groups. Chart 24 illustrates these 

results. 

Chart 24: 2006 SLIP Candidate Membership in the 

American Constitution Society and the Federalist Society 

9

1 1

5

0

1

2

3

4

5

6

7

8

9

10

American Constitution

Society (n=6)

Federalist Society (n=10)

Approved

Deselected

We found that 5 of the 6 applicants (83 percent) whose 

applications reflected membership in the American Constitution Society 

were deselected by the Screening Committee, while 1 of the 10 

applicants (10 percent) whose application reflected membership in the 

Federalist Society was deselected. 

ii. Political Affiliations 

We next examined SLIP applicants whose applications reflected 

working for a politician or political organization. Chart 25 shows the 

approval and deselection rates for these subsets. 

56 
Chart 25: Political Affiliations of 2006 SLIP Candidates 

12 9

228

9

170

23

0

50

100

150

200

250

Democrat (n=35) Republican (n=18) Neutral (n=398)

Approved

Deselected

Candidates who had a Democratic Party affiliation were 

deselected at a slightly higher rate (66 percent, or 23 out of 35) than 

candidates who had a Republican Party affiliation (50 percent, or 9 out 

of 18) or candidates with neutral affiliations (43 percent, or 170 out 

of 398). 

Similarly, as demonstrated by Chart 26, we found that the highly 

qualified candidates meeting the Fridman criteria whose applications 

reflected Democratic Party affiliations were deselected at a slightly 

higher rate (60 percent, or 15 out of 25) than the highly qualified 

candidates whose applications reflected Republican Party affiliations 

(50 percent, or 6 out of 12) or neutral affiliations (35 percent, or 82 out 

of 231).

57 
Chart 26: Political Affiliations of Academically 

Highly Qualified 2006 SLIP Candidates 

149

10 6

82

6

15

0

20

40

60

80

100

120

140

160

Democrat (n=25) Republican (n=12) Neutral (n=231)

Approved

Deselected

iii. Summary of 2006 SLIP Data Analysis 

 Overall, we found that SLIP candidates whose applications 

reflected liberal affiliations were deselected at a substantially higher 

rate (82 percent) than SLIP candidates whose applications reflected 

conservative affiliations (13 percent) or neutral affiliations (39 percent). 

We also found that in the subset of highly qualified SLIP candidates 

who met the Fridman criteria, candidates whose applications reflected 

liberal affiliations were deselected at a higher rate (25 out of 31, or 

81 percent) than candidates with conservative affiliations (1 out of 6, or 

17 percent) or neutral affiliations (77 out of 231, or 33 percent). We 

found that 83 percent (5 out of 6) of candidates whose applications 

reflected membership the American Constitution Society were 

deselected, while 10 percent (1 out of 10) whose applications reflected 

membership in the Federalist Society were deselected. In addition, 

candidates whose applications reflected Democratic Party affiliations 

were deselected at a slightly higher rate than candidates with 

Republican Party affiliations. 

(3) Appeals of Deselected SLIP Candidates 

Given the substantial delay in the Screening Committee’s review 

of SLIP candidates, few appeals were made. Instead, components 

primarily focused on trying to fill their SLIP positions with whichever 

cleared candidates were available to them. 

However, four components appealed the deselection of 18 SLIP 

candidates, and 13 were granted. For example, on November 22, when 

58 
38 of the Civil Division’s SLIP candidates still had not been ruled on by 

the Screening Committee, AAG Keisler appealed 3 candidates who had 

been deselected and requested that Elston approve 10 of the remaining 

candidates about whom the Committee had not yet decided. Keisler 

said he thought all 13 candidates were academically qualified and 

should be approved. The 3 appeals of the deselected candidates, 

including an appeal of a candidate who was a Yale Law School student 

and a Rhodes Scholar, were denied, and the Screening Committee 

approved only 6 of the 10 candidates for whom Keisler requested 

clearance. At the time, Elston gave no explanation for the decisions. 

The Civil Rights Division had 24 of its 52 candidates deselected, 

and appealed 1. That candidate was a student at Harvard Law School 

with an A- grade average, had interned at the U.S. Attorney’s Office in 

the Eastern District of California, and was strongly recommended by an 

attorney in the front office of the Civil Rights Division who knew him. 

Rena Comisac, Principal Deputy Assistant Attorney General for the Civil 

Rights Division, told us that after the appeal was submitted, Elston 

informed her that the Screening Committee had found an article on the 

Internet in which the candidate was quoted as expressing regret that he 

had not participated in the 1999 World Trade Organization (WTO) 

protests in Seattle. According to Comisac, Elston said that if the 

candidate wanted to participate in the Seattle WTO protests, which in 

Elston’s opinion were close to a riot, then the candidate would not 

hesitate to chain himself to the front steps of the Department if he did 

not like the way something was being done. Comisac told us that it was 

clear to her that “any additional appeals would not be productive” and 

that she decided not to pursue the matter further. 

2. Concerns About the Screening Committee Process 

Raised with the OARM Director 

 OARM Director DeFalaise told us that during the 2006 

deselection process the components were “expressing a lot of 

unhappiness” about the Screening Committee’s deselections. He also 

said that a few employees raised to him an “implication” that the 

candidates were “being deselected in these numbers because of political 

considerations.” 

 In addition, an OARM employee told us that at least twice she 

went to DeFalaise and asked him to confirm that the lists OARM had 

received from the 2006 Screening Committee were in fact deselected 

candidates because a large number of the deselected candidates 

appeared to be highly qualified. She recalled that one of the candidates 

she raised to DeFalaise’s attention was first in his law school class at 

Georgetown University, had clerked for a federal district court judge, 

59 
and was currently clerking for a Second Circuit judge.41 DeFalaise told 

us that he confirmed with Elston’s administrative assistant, but not 

with Elston, that these candidates were supposed to be deselected. 

 DeFalaise said that after the selection process was completed he 

may have mentioned to Elston that there was some concern among the 

components that the process had been politicized, but he never asked 

Elston directly if Elston had considered political affiliations in 

evaluating candidates. DeFalaise added that while he never had a 

“direct discussion” with Elston on this question, Elston “was already 

saying no” by saying that he was looking at academics, writing skills, 

and information obtained from the Internet.

DeFalaise also said he did not have discussions about this issue 

with anyone else in the Department’s leadership offices until April 

2007, after allegations that the process had been politicized became 

public. DeFalaise stated that because these were senior Department 

officials who were involved in the screening, until he had “reason to 

think that there’s been a violation of personnel practices,” he took it “on 

good faith” that the deselections were made “for the right reasons, and 

for the reasons stated.”

3. Concerns About the Screening Committee Process 

Raised with Elston 

Our investigation found that both during and after the Screening 

Committee’s review of Honors Program and SLIP candidates in 2006, 

various component officials had raised concerns with Elston about the 

delay and the qualifications of those being deselected, and at least one 

official questioned whether the Screening Committee had considered 

political or ideological affiliations in deselecting candidates. For 

example, as discussed in Section III(D)(1), AAG Keisler told Elston that 

the deselection of a highly qualified Harvard Law School student who 

had worked for Planned Parenthood could be perceived as politically 

motivated. 

 Tax Division AAG O’Connor told us that she called Elston to 

express concern about the delay in the SLIP review process and inquire 

about its cause. O’Connor said Elston stated to her that the 

components had done a “horrible” job of screening candidates and that 

he also mentioned finding inappropriate information on the Internet 

 41 This candidate also had worked as a law clerk for Senator Russell Feingold, 

a Democrat, and for Human Rights Watch, but the OARM employee does not recall 

pointing out the candidate’s political or ideological affiliations to DeFalaise at this 

time.

60 
about candidates components wanted to interview. Elston told us that 

he did not recall any conversation with O’Connor about the Honors 

Program and SLIP hiring process. 

We found that in a November 30 e-mail to OARM Director 

DeFalaise, Elston suggested convening a meeting with representatives 

from each component that participated in the Honors Program and SLIP 

process “to get input from the components on how, collectively, we can 

do a better job, and . . . to give them some ideas on how to screen the 

candidates (checking the web, etc.).” Elston stated in the e-mail that he 

was particularly unhappy that there were “far too many applicants 

whose grades did not meet an objectively reasonable definition of an 

‘honors’ student” and that there were many applications that “exhibited 

stunningly poor grammar and/or spelling.” 

The meeting was held on December 5, 2006. Representatives 

from each of the 11 components that participated in the Honors 

Program and SLIP attended. According to several attendees, Elston 

opened the meeting on a conciliatory note, apologizing for the delay in 

screening candidates that year, particularly the SLIP candidates. He 

then stated that the process had been hindered by the components’ 

failure to adequately screen candidates, and he repeated this assertion 

throughout the meeting. 

According to several attendees, Elston stated that candidates 

were deselected for one of three reasons: (1) poor grades or class rank; 

(2) poor writing or grammar, as evidenced by their Avue online 

applications; and (3) information on the Internet, such as that 

uncovered through Google searches or on MySpace pages, indicating 

the candidates were unsuitable for employment with the Department. 

Elston gave two examples of the type of inappropriate information that 

the Screening Committee had discovered on the Internet. He said one 

candidate described himself on a MySpace page as an anarchist; 

another had disseminated “compromising photos.” 

When an attorney suggested that the Avue system used for 

submitting applications online may have been the cause of some of the 

poor grammar or writing, Elston disagreed.42 He said the problems that 

the Screening Committee observed involved fundamentally poor 

sentence structure, punctuation, and routine grammatical flaws. 

 42 Several witnesses told us they found the Avue computerized application 

system was difficult to operate and could result in typographical or grammatical 

errors in an application that were not the fault of the applicant. The OIG’s own 

experience in reviewing Avue applications for OIG employment vacancies confirmed 

this point. 

61 
According to the attendees we interviewed, no one at the meeting 

directly asked whether the Screening Committee had considered politics 

or ideology in screening candidates. Yet, most told us they did not 

believe that the meeting had satisfactorily answered their questions and 

concerns about this issue. 

Several attendees told us that while Elston started the meeting 

with an apology about the delays caused by the Screening Committee’s 

review, his tone quickly became condescending, rude, unprofessional, 

and hostile when attendees began asking questions about how the 

Committee made its decisions. Several attendees also said that they 

did not feel it would be productive to raise more questions due to the 

confrontational tone that Elston took in response to the questions that 

were asked. During our interview of Elston, he denied being rude or 

unprofessional at the meeting. 

The attendees said that Elston seemed receptive to some 

suggestions for change, such as having the Screening Committee only 

review SLIP candidates if a component wanted to make an offer of 

permanent employment to the candidate at the end of his or her 

internship. Elston concluded the meeting by asking attendees to 

submit their suggestions for improving the hiring process to DeFalaise. 

A senior Tax Division attorney told us that the question he really 

wanted answered at the meeting was whether political considerations 

played a role in the deselections, but no one asked Elston. The senior 

attorney said he did not think it was a good idea to ask Elston this 

question in front of everyone. After the meeting, however, the senior 

attorney went to Elston’s office and told him that he and others were 

concerned that politics had played a role in the deselections. The 

senior attorney said Elston assured him “that wasn’t the case at all.”43

The senior attorney said that Elston’s denial did not alleviate his 

concerns. Therefore, he, along with other senior career Tax Division 

attorneys, drafted the memorandum to Tax Division AAG O’Connor, 

discussed above in Section III(D)(1), which analyzed the Division’s 

deselected candidates and concluded that political or ideological 

affiliations may have played a role into the decision to deselect 

candidates. 

 43 Elston told us he did not recall a senior Tax Division attorney coming to his 

office after the meeting and asking whether political affiliation had been considered in 

evaluating candidates. Elston said he recalled only that an attorney from the front 

office of the Tax Division had complained about the delay in reviewing applications. 

62 
O’Connor told us that upon receiving the memorandum her 

reaction was that “the appearance that this created is so harmful, so 

harmful. I’m – I’m just devastated by the impact and if there were 

reasons other than the ones that [the memorandum] has laid out here, 

they’ve not been made clear to me . . . .” 

4. Concerns About the Screening Committee Process 

Raised with the Acting Associate Attorney 

General 

We also determined that concerns about the hiring process were 

raised with Acting Associate Attorney General William Mercer. Tax 

Division AAG O’Connor said that after receiving the memorandum from 

her employees, she raised with Mercer the concerns that political 

considerations may have been used by the Screening Committee. She 

said she told Mercer that “the career people were firmly convinced 

that . . . political considerations” had been used by the Screening 

Committee in deselecting candidates. O’Connor also told Mercer that 

ODAG “needed to communicate whatever the factors were, lessons 

learned, after-action report, whatever it is, because nobody wants to be 

in this position ever again.” O’Connor said Mercer appeared to share 

her concern, although she did not know what Mercer did in response. 

We also found that near the end of the 2006 Honors Program and 

SLIP hiring process, Civil Division AAG Keisler spoke with Mercer and 

advised him that the review process had been problematic and that 

many people in the Civil Division believed it had been politicized. 

Keisler told Mercer that, whether or not political affiliations had been 

considered, the process had gone badly for the Civil Division because it 

was unable to hire many of the candidates it had selected and should 

have been allowed to hire. Keisler said he did not want or expect 

Mercer to take any action at that time. Rather, he wanted Mercer to be 

aware of the problems the Civil Division had encountered, as well as the 

general discontent in the Department about how the Honors Program 

and SLIP hiring process had been handled. However, Keisler told 

Mercer that, at the appropriate time, he would like to have a meeting of 

senior Department officials to discuss the next year’s hiring process to 

ensure that the problems they encountered in 2006 would not be 

repeated. Keisler said that Mercer appeared to be unaware of much of 

this information but that he seemed to be paying close attention. 

In addition, then Principal Deputy Associate Attorney General 

Gregory Katsas told us that a senior career employee had expressed 

concerns to him about Honors Program and SLIP candidates with 

excellent credentials who had been deselected for no apparent reason 

and that he and his colleagues had received a report from a law school 

63 
official that there was a perception of “partisanship and unfairness.” 

Katsas said Keisler also raised with him the concern that good 

candidates were deselected “without apparent reasons.” Katsas said he 

told Mercer what he had heard from Keisler and the senior career 

attorney. Katsas said he also told Mercer that the concerns of Keisler 

and the career attorney appeared to be “serious ones” and that Mercer 

and he should be “on the lookout” about this issue going forward. 

Mercer told us during an interview that he recalled Keisler and 

O’Connor each separately raising concerns that some excellent 

candidates had been deselected by the Screening Committee without 

explanation. He said that Keisler told him that people within the Civil 

Division believed that very good candidates had been deselected “based 

upon philosophical concerns.” O’Connor told him there was “great 

frustration” within the Tax Division because the staff had worked hard 

to come up with some excellent candidates but were not allowed to 

interview them and they did not “understand the process.” Mercer said 

he also learned from Katsas that a senior career attorney in the Civil 

Division had expressed concerns that an Honors Program candidate 

with excellent credentials had been deselected for no apparent reason. 

Mercer said he reported to Elston his conversations with Keisler 

and O’Connor. According to Mercer, Elston stated that the deselections 

were made because of “sloppiness of applications” or “poor academics.” 

Elston also told Mercer that he had already scheduled the December 5 

meeting to gauge what people’s concerns were. Elston said he intended 

to explain the process the Committee had followed so the components 

would have “a clear understanding of what we did, and what we 

learned, and what the basis for the strikes were.” 

Mercer told us that he later learned from Associate Deputy 

Attorney General David Margolis, a senior career Department official, 

that the December 5 meeting had not gone well and that a lot of people 

had left the meeting “disturbed” and “not satisfied.”

Elston told us he did not recall any conversations with Mercer in 

which Mercer reported that he had received complaints that candidates 

had been evaluated on the basis of political or ideological affiliations. 

Mercer said he also had a conversation with Esther Slater 

McDonald, who worked for him as Counsel in the Associate Attorney 

General’s office and who he assigned to be a member of the 2006 

Screening Committee. He said he asked her about the criteria the 

Committee had used to evaluate candidates. Mercer said McDonald 

told him the deselections were due to concerns about academic records, 

sloppiness of applications, and, at times, “a concern that [the 

64 
applicants] wouldn’t be able to follow DOJ policy based upon what they 

had written.” 

Mercer said he never questioned Elston or McDonald further on 

how the decisions were made because “[t]hat was something that I 

thought the Committee was responsible for.” Mercer said he 

understood that Elston was in charge of changing the process for hiring 

Honors Program and SLIP candidates, and Mercer had no further 

involvement in that process. 

E. Initial Proposed Changes to the Honors Program and 

SLIP Hiring Process 

Following the December 5 meeting with Elston, OARM collected 

and compiled suggestions from the components on ways to improve the 

Honors Program and SLIP hiring process. Elston told us that given the 

time and effort the Screening Committee had expended on the 2006 

process, he considered recommending that Department-level review be 

eliminated altogether. Elston said he discussed this suggestion with 

Monica Goodling, Senior Counsel to the Attorney General, sometime in 

January 2007, but she disagreed. Elston said Goodling stated that 

Attorney General Ashcroft had initiated the Department-level review 

because it was important that the Attorney General have input into his 

Honors Program. Elston said it was clear to him from Goodling’s 

comments that eliminating Department-level review was not an 

option.44

In consultation with Elston and the components, OARM drafted 

memoranda proposing changes to the Honors Program and SLIP hiring 

process. In particular, the memoranda proposed eliminating the 

Department-level Screening Committee review for all SLIP candidates, 

except those who received an offer of permanent employment at the end 

of the summer internship. However, Department-level review would 

remain for all Honors Program candidates, and components would be 

informed of the basis for individual deselections to assist them in 

deciding whether to appeal. Other suggested changes to the process 

included providing guidance to the components to assist them in 

selecting highly qualified candidates during their initial candidate 

selection, allowing components to submit component-specific criteria to 

sort candidates on the Avue system, and increasing the size of the 

Department-level Screening Committee to enable quicker review of 

candidate applications. 

 44 Goodling declined to be interviewed by us in connection with our 

investigations of hiring practices in the Department. 

65 
OARM drafted decision memoranda to implement these proposed 

changes, which were submitted in March 2007 to Deputy Attorney 

General Paul McNulty for his review and approval. According to Elston, 

McNulty approved the changes in early April 2007.

On April 9, an anonymous letter was sent to the Chairmen of the 

House and Senate Judiciary Committees alleging that the Honors 

Program and SLIP had been politicized. The letter, signed by “A Group 

of Concerned Department of Justice Employees,” complained about the 

unusually large number of deselected candidates. The letter detailed 

the December 5 meeting with Elston, alleged that Elston was “offensive 

to the point of insulting,” and failed to give meeting attendees 

satisfactory answers to their questions. The letter stated: 

When division personnel staff later compared the remaining 

interviewees with the candidates struck from the list, one 

common denominator appeared repeatedly: most of those 

struck from the list had interned for a Hill Democrat, 

clerked for a Democratic judge, worked for a “liberal” cause 

or otherwise appeared to have “liberal” leanings. Summa 

cum laude graduates of both Yale and Harvard were 

rejected for interviews. 

 In mid-April 2007, several newspapers published articles about 

the letter.45

F. Additional Revisions to the Honors Program and SLIP 

Hiring Process 

The allegations in the April 9 letter were made in the midst of 

congressional hearings into the firings of U.S. Attorneys and allegations 

that hiring and personnel decisions at the Department of Justice had 

been politicized. 

McNulty told us that prior to learning of the April 9 letter, he was 

not aware of Elston’s role in the Honors Program and SLIP hiring 

process and that he had no role himself in the process. McNulty said 

that upon reading the April 9 letter, he discussed its allegations with 

Elston. McNulty said Elston did not confirm or deny the allegation that 

applicants were deselected for political reasons. Rather, Elston said he 

did not know “why individuals were being scratched from the list.” 

McNulty said Elston led him to believe that Elston was not one of the 

 45 See, e.g., Evan Perez, Letter Accuses Justice Officials of “Politicization,” The 

Wall Street Journal, Apr. 18, 2007; Dan Eggen, Gonzales to Admit Mistakes in Firings, 

The Washington Post, Apr. 19, 2007. 

66 
Committee members who reviewed the applications and instead acted 

as “sort of a conduit for review” between the other two Committee 

members (Fridman and McDonald) and OARM. McNulty said he 

received the impression that Elston decided the appeals. 

McNulty said that after consulting with the Attorney General’s 

office, it was quickly decided to refer the allegations in the April 9 letter 

to OPR and the OIG for investigation. McNulty said that in light of the 

referral, he did not question Elston further and he excluded Elston from 

any further involvement with Honors Program or SLIP issues.46

Instead, McNulty said he worked directly with OARM Director 

DeFalaise to revise the Honors Program and SLIP hiring process. 

McNulty said he believed the changes Elston and DeFalaise had already 

proposed, and which he had approved in early April, did much to 

address the concerns that the hiring process could be politicized. 

However, McNulty said that after discussions with DeFalaise, he 

decided to create a different structure for conducting the Departmentlevel review. 

McNulty said that the “most crucial” reform he wanted to 

implement was to ensure that the process would be controlled by career 

employees. McNulty said DeFalaise helped him identify a different 

structure in which OARM would run a quality review screening process 

that would be conducted by career employees rather than by political 

appointees. 

 The final changes to the Honors Program and SLIP hiring process 

were issued to Department components in an April 26, 2007, 

memorandum from DeFalaise. Under the new process, the Screening 

Committee, which formerly contained primarily political officials, was 

replaced by an Ad Hoc Working Group of career officials from the major 

components participating in the Honors Program. The April 26, 2007, 

memorandum also announced the newly developed Component Review 

Standards Guidance, which states that only merit-based criteria should 

be considered by the components and by the Ad Hoc Working Group in 

selecting candidates. 

 The guidance instructs component reviewers to pay close 

attention to a candidate’s academic qualifications. Components 

selecting a candidate with less than an outstanding academic record 

 46 When we interviewed former Attorney General Alberto Gonzales, he said 

that he first became aware of complaints related to the Honors Program as a result of 

the anonymous April 9, 2007, letter. He said that after he became aware of the letter, 

he contacted Deputy Attorney General McNulty, who said that there were issues with 

the program and that changes were being made to the hiring process. Gonzales said 

that he encouraged McNulty to fix the process. 

67 
must provide a justification to the Ad Hoc Working Group for the 

selection based on the candidate’s skills, background, experience, or 

training in a relevant field of the component’s practice. The guidance 

also instructs components to exercise “due caution” when considering 

web-posted information to ensure correct identification and attribution. 

 Under the revised procedures, the Ad Hoc Working Group reviews 

the Honors Program candidates selected by the components to ensure 

that the selections comply with the guidance and that the number of 

interviews does not exceed budgetary limitations. The Ad Hoc Working 

Group also must provide the components with written explanations 

when the Ad Hoc Working Group identifies candidates as 

non-compliant with the guidance. 

 SLIP candidates are not subject to review by the Ad Hoc Working 

Group. Instead, OARM randomly monitors SLIP selections for 

compliance with the guidance. In addition, OARM must review any 

funnel offer, which is an Honors Program offer made to a SLIP intern at 

the conclusion of the SLIP internship, to ensure that the candidate 

meets the merit standards described in the guidance. 

G. Evidence as to Whether 2006 Screening Committee 

Members Considered Political and Ideological 

Affiliations 

In evaluating whether political or ideological affiliations played a 

role in the deselection of 2006 Honors Program and SLIP candidates, we 

investigated how the three members of the Screening Committee 

conducted their reviews, and we attempted to determine why the 

Committee deselected specific candidates. In the following sections, we 

first discuss the limited documentary evidence that exists recording the 

recommendations and decisions by Committee members. Second, we 

discuss the explanation that each Committee member provided to us, 

or that we discovered from other available evidence, concerning how 

that member conducted his or her review of candidates. Third, we 

provide our analysis and conclusions regarding whether each member 

of the Committee used political or ideological affiliations in evaluating 

and deselecting applicants. 

1. Lack of a Written Record 

We had difficulty reconstructing the decisions and reasoning of 

the Committee members with regard to specific candidates because 

virtually no written record of the Screening Committee members’ votes 

and views remains. The Committee used paper copies of the 

applications on which Fridman and McDonald made handwritten 

notations about the applicants, but those documents were destroyed 

68 
prior to the initiation of our investigation. Elston’s staff assistant told 

us that her 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. 

The only remaining written record of some of the reasoning used 

by the Screening Committee members is contained in two e-mail 

chains, one discussing a Civil Division SLIP candidate and the other 

discussing eight ATF SLIP candidates. The latter e-mail chain, which 

provides insight into the reasoning of two of the Committee members, is 

detailed below in Section III(G)(3). 

In addition, while we found e-mails in which Elston 

communicated his decisions on some of the appeals submitted by the 

components, he typically did not give any reasons for his decisions to 

grant or deny an appeal. 

Given the lack of a written record, our interviews of Fridman and 

Elston, which we discuss next, provided the best information to 

determine how and why the Screening Committee made its decisions.47

2. Daniel Fridman 

a. Instructions to Fridman 

Daniel Fridman began his career with the Department in 

December 2004 when he joined the U.S. Attorney’s Office for the 

Southern District of Florida as an Assistant United States Attorney. In 

April 2006, Fridman was detailed to the Deputy Attorney General’s 

office in Washington, D.C.48 Fridman was recruited for the detail by 

William Mercer, who at the time was the Principal Associate Deputy 

Attorney General. Mercer remembered Fridman from the Truman 

Scholars program Fridman had participated in during college. Fridman 

said while in the Deputy Attorney General’s office he was assigned 

several areas of oversight responsibility, such as health care fraud, 

immigration enforcement, and child exploitation. He reported directly 

to Associate Deputy Attorney General Ron Tenpas.

 47 As explained in Section III(G)(3) below, McDonald resigned from the 

Department just before our scheduled interview of her. Because she no longer works 

for the Department, we could not compel an interview and she declined to be 

interviewed by us. 

48 Fridman graduated from law school in May 1999. Following a judicial 

clerkship, he worked in a law firm in Miami, Florida, for 4 years before joining the 

Department in 2004. In 2008, Fridman left the Department to work for a private law 

firm. 

69 
Fridman had no responsibility for or involvement in hiring prior 

to September 2006 when Elston assigned him to work on the Screening 

Committee along with Elston and Esther Slater McDonald. According 

to Fridman, Elston told Fridman to review the applications for grades, 

qualifications, credentials, and experience. Fridman also said that 

Elston told him that his review was to help weed out “wackos or wack 

jobs.” Elston stated that because this was the Attorney General’s 

Honors Program, they wanted to hire candidates who were supportive of 

or who had views consistent with the Attorney General’s views on law 

enforcement. However, Elston did not explain how Fridman would 

determine whether a candidate supported the Attorney General’s views.

Fridman told us that after his conversation with Elston, he was 

concerned and uncertain about what he was supposed to do. He did 

not understand what Elston meant by “wackos or wack jobs,” or how he 

was supposed to identify a candidate who fell within Elston’s definition 

of those terms. Fridman said he had “serious questions” about whether 

such a review was even appropriate. Because of his concerns, Fridman 

met with Tenpas and told him that he was unsure whether he 

understood Elston’s request and whether his discomfort with it was an 

overreaction. Fridman asked Tenpas to speak with Elston to get 

clarification on the Screening Committee assignment. 

 Tenpas confirmed that Fridman met with him about the 

assignment. Tenpas said Fridman reported that Elston had assigned 

him to review applications of Honors Program candidates and that 

Fridman was uncertain and a bit concerned about the nature of the 

assignment. Tenpas understood that Fridman was concerned that 

Elston may have asked him to review candidates based on their political 

or ideological views. Tenpas told Fridman he was right to question the 

assignment because, in Tenpas’s experience as an AUSA and as a 

U.S. Attorney, he had never hired anyone based on political affiliation 

and he was not aware of others doing so. 

According to Fridman, he also asked Tenpas whether, if Tenpas 

were in Fridman’s place, he would review candidates based on political 

or ideological views, and Tenpas said no. According to Tenpas, he 

advised Fridman that he should not do anything he was uncomfortable 

doing because “you never get your integrity back.” Tenpas said he also 

advised Fridman to get clarification from Elston about exactly what he 

was being asked to do. 

Tenpas said that after their conversation, he stopped by Elston’s 

office and told him that Fridman was uncertain and concerned about 

the Honors Program assignment. Elston expressed frustration that 

Fridman had not come directly to Elston with his concerns. Elston 

70 
assured Tenpas that he would speak with Fridman and clarify the 

assignment. Tenpas said he did not remember Elston indicating 

whether he had in fact asked Fridman to consider candidates’ political 

or ideological views in conducting the review. 

After his conversation with Tenpas, Fridman met with Elston a 

second time. Fridman said Elston told him that, when he asked 

Fridman to weed out “wackos and wack jobs, he meant he wanted us to 

weed out extremists on either side of the ideological spectrum.” 

Fridman said that he asked for more clarification and that Elston gave 

him some examples. Fridman told us he could not remember the 

examples, but said that they were similar to reasoning that if a 

candidate was a member of the National Rifle Association, that 

candidate would have difficulty prosecuting gun cases, and on the other 

hand people who supported the legalization of drugs might have 

difficulty prosecuting narcotics violations. Fridman said he still did not 

completely understand the type of review Elston wanted him to 

conduct, but he told Elston he was comfortable reviewing applications 

for grades, credentials, and writing ability. 

b. Fridman’s Review Process 

Fridman said that he understood that the review needed to be 

completed as soon as possible, although he did not understand that the 

Screening Committee had a firm deadline.48 Fridman also said that no 

one explained to him the import of the December 1 deadline for making 

employment offers. Nor did anyone explain how Screening Committees 

in previous years had worked or how quickly they had conducted their 

reviews. Fridman also said he had no understanding of the hiring 

process for components and was unaware in the fall of 2006 of any 

complaints by the components that the review process was taking too 

long. 

To conduct the review, Fridman said he and McDonald received 

identical sets of Honors Program applications. At first, Fridman and 

McDonald attempted to meet to go over the applications together, but 

their respective schedules made that difficult. Fridman said that as a 

result, the practice that evolved was that McDonald reviewed the 

applications first and that she would circle items on the applications, 

make notes or write remarks on them, and separate them into three 

categories: no, yes, and questionable. In addition, he said that 

 48 Our review of e-mails found that Fridman received an e-mail from Elston’s 

assistant at the beginning of the review process which set out the deadlines that 

OARM had imposed. 

71 
McDonald also conducted Internet searches to obtain further 

information about the candidates. Among other things, McDonald ran 

searches on candidates’ names using the Google search engine and 

checked their MySpace webpages. In some cases, she read law review 

or other published articles by the candidates. 

After McDonald completed her review, she passed her marked-up 

applications to Fridman. Fridman told us that he first reviewed an 

application for the candidate’s law school and grades. If a candidate 

attended an Ivy League or other top-tier law school, Fridman generally 

voted that the candidate should receive an interview unless the 

applicant had substandard grades, such as a number of Cs on his or 

her transcript.49 For students who did not attend one of the top-ranked 

law schools, Fridman generally only voted yes for those students who 

ranked in the top third of their classes.50 He said that if the student 

was in the top 20 percent of his or her class, he would vote to interview 

the applicant, regardless of law school. If the student’s class rank fell 

between the top 20 percent and top third of the class, Fridman would 

give closer scrutiny to the application. If the school was not a top-tier 

school and did not assign class rank, Fridman would look at the grades 

listed on the student’s transcript. If the student appeared to have a B 

or better grade average, Fridman would recommend the applicant be 

interviewed. Fridman also considered as positive factors an applicant’s 

judicial clerkship, master’s degree, moot court, or prior internship with 

DOJ. For candidates whose grades were borderline, Fridman closely 

scrutinized their writing style. 

After Fridman completed his review, he forwarded the marked-up 

applications to Elston. Fridman separated the applications into three 

piles: yes – those whom both Fridman and McDonald agreed should 

receive an interview; no – those whom they both agreed should not 

receive an interview; and questionable – those about whom Fridman 

and McDonald disagreed or whose grades were marginal and required 

closer review. 

Fridman said he did not know what Elston did with the three 

piles or how he screened them. Fridman believed it was apparent to 

Elston which handwritten comments were his and which were 

 49 Fridman explained that he considered the top law schools to be the 20 

schools ranked highest in U.S. News and World Report’s ranking of law schools in 

2006. 

50 Fridman said he recalled a few exceptions in which a candidate who was 

not in the top third of the class but who had a particularly compelling life story 

detailed in the essay portion of the application was considered for an interview. 

72 
McDonald’s because Fridman’s handwriting was much sloppier than 

McDonald’s, and sometimes they used different colored pens. 

Fridman said that he and McDonald had discussed how they 

would review the applications and that he understood that McDonald 

applied the same criteria as to grades and class rank as he did. 

However, Fridman learned that McDonald was obtaining additional 

information about candidates on the Internet when he saw notations by 

McDonald providing information that was not contained in the 

candidate’s application. When Fridman asked McDonald how she 

obtained the additional information, she told him she conducted 

searches on Google and MySpace, and read law review articles written 

by the applicants. For example, Fridman recalled that one candidate 

had written a law review article about the detention of individuals at 

Guantánamo, and McDonald noted on the application that she 

perceived the applicant’s viewpoint to be contrary to the position of the 

administration. On another application, McDonald noted that she 

found information on the Internet indicating that a candidate was an 

“anarchist.” 

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, 

writing style, personal history as reflected in the essay answers, and 

work experience. Fridman said he did not know how to weed out the 

type of “extremists” that Elston had mentioned, so he made no attempt 

to do so. Fridman said he viewed involvement with organizations as a 

positive factor, regardless of the political viewpoint of the organizations. 

Fridman thought judicial clerkships were also a positive factor, 

regardless of whether the judge was viewed as conservative or liberal. 

Similarly, Fridman said interning for a Member of Congress was a 

positive factor, regardless of whether the Member was a Republican or 

Democrat. 

73 
Fridman said he did not discuss with McDonald her written 

comments objecting to candidates’ affiliations. However, he said that at 

one point early in the review process he took a stack of applications to 

Elston and told him that he was concerned that candidates who had 

good credentials might not be granted an interview based on 

McDonald’s assessments. For example, Fridman recalled that one 

candidate was at the top of his class at Harvard Law School and was 

fluent in Arabic. McDonald’s written notations indicated that she had 

concerns about the candidate because he was a member of the Council 

on American Islamic Relations and that she had placed the application 

in the questionable pile. Fridman said he wrote on the application that 

this candidate was at the top of his class at Harvard and was exactly 

the type of person DOJ needed. 

Fridman also pointed out one or two other examples to Elston 

and told him that he did not agree with McDonald. Fridman said that 

while Elston did not state whether he would allow the candidates to be 

interviewed, Elston indicated he understood Fridman’s concerns and 

expressed general agreement that candidates with excellent law school 

academic records should be interviewed. However, Fridman said he did 

not know how Elston voted on individual candidates or which 

candidates were cleared for interviews following Elston’s review because 

Elston made the final decision on each candidate and communicated 

that decision directly to OARM. 

Fridman said that in May 2007 he spoke with Elston in 

connection with the Department’s response to a letter from Senators 

Edward Kennedy and Richard Durbin questioning whether political 

affiliations were used as a basis to deselect candidates in the Honors 

Program and SLIP hiring process. Fridman said that Elston mentioned 

that, during the Screening Committee’s review, Elston had generally 

agreed with Fridman’s recommendations on candidates over 

McDonald’s recommendations. Fridman said that Elston told him that 

McDonald “knows in her own mind” what she did in reviewing 

applications, but Elston generally voted with Fridman in most cases. 

During our interview of Fridman, we showed him several 

applications of candidates from top law schools with outstanding 

academic records who were deselected. Although Fridman said he 

could not specifically recall individual candidates, he explained whether 

he would have voted yes or no for a candidate based on the candidate’s 

academic record and other credentials. 

We asked Fridman to review a sample of approximately 50 

applications of deselected candidates who had outstanding academic 

records. Fridman said that he would have voted yes on each of the 

74 
candidates. Fridman repeatedly expressed surprise that candidates for 

whom he voted yes, based on their grades, law school, and class rank, 

were in fact deselected. Fridman said that based on our informing him 

that these candidates had been deselected by the Screening Committee, 

Elston must have sided with McDonald in deselecting these candidates. 

At the end of the interview, Fridman stated: 

I’m still kind of reeling from the résumés that you . . . 

showed me . . . people from Harvard, Yale, Stanford who 

were deselected. There were a lot of them. And I am 

shocked and very disappointed about that. . . . I didn’t 

know that this was going on. I thought that this was being 

conducted in good faith. I was conducting my reviews in 

good faith and making my recommendations based on 

merits and what I thought were the people [who] were going 

to be the most qualified candidates for the Department. 

And I’m sickened by this. And I’m not happy that I’m 

associated with this. 

3. Esther Slater McDonald 

McDonald declined to be interviewed during our investigation. 

When we first contacted her in September 2007 for an interview, she 

was a Counsel to the Associate Attorney General. She initially agreed to 

a tentative date for her interview, but she later asked us to postpone 

the interview while she retained counsel. We agreed. After McDonald 

retained an attorney, and after allowing time for the attorney to 

familiarize himself with the matter, a new date for the interview was set, 

October 25, 2007. However, at 5:15 p.m. on October 24, McDonald’s 

attorney e-mailed our investigators to advise them that his client was 

canceling the interview. The attorney added that McDonald was no 

longer employed by the Department. 

We learned that McDonald had resigned from the Department, 

effective October 24. On the evening of October 23, she had told her 

supervisor, Acting Associate Attorney General Katsas, that the next day 

would be her last day at the Department. Katsas said that her 

resignation came as a surprise to him. 

After her sudden departure from the Department, we renewed our 

request to McDonald’s attorney to interview her. Through her attorney, 

she again declined. Accordingly, we have had to rely on the testimony 

of others, particularly Fridman and Elston, as well as the limited 

written record, to describe and assess McDonald’s actions in reviewing 

applications. 

75 
a. Assignment to the Screening Committee 

McDonald graduated from law school in May 2003. Following a 

judicial clerkship, she joined a Washington, D.C., law firm as an 

associate. On June 13, 2006, a partner at the law firm e-mailed 

Monica Goodling to recommend McDonald for a position at the 

Department. Goodling interviewed McDonald later that week. 

McDonald was hired as a political appointee as Counsel to Acting 

Associate Attorney General Mercer and began work on September 5, 

2006. Her duties as Counsel included assisting with oversight of the 

grant issuing components of the Department, the Antitrust Division, 

and the Executive Office for U.S. Trustees. She was also assigned by 

Mercer to work on the Honors Program/SLIP Screening Committee after 

she had been at the Department only a few weeks. 

No one we interviewed (including Elston, Fridman, and Mercer) 

said they gave McDonald any instructions on how to conduct her review 

of Honors Program and SLIP applications. In a letter to OPR and OIG 

investigators in which he reiterated McDonald’s unwillingness to be 

interviewed, McDonald’s attorney stated that she was given no 

instructions on how to conduct the review, “except for limited high level 

statements.” The primary guidance she was given, her attorney wrote, 

was “to consider whether they would faithfully defend and uphold the 

Constitution and zealously execute the laws of the United States and 

the policies of the administration as they may apply to matters within 

the jurisdiction of the Department of Justice.” McDonald’s attorney did 

not name the source of this guidance, and he declined to allow 

McDonald to be questioned about this issue. Her attorney also refused 

our request to provide the name of the person or persons providing this 

guidance. Therefore, we were unable to determine what, if any, 

guidance or specific instructions McDonald received and from whom.51

b. McDonald’s Review Process 

As noted above, both Fridman and Elston reported that 

McDonald conducted Internet searches on the candidates using Google 

 51 In his letter to us, McDonald’s attorney also alleged that “at no time did 

anyone inform her that her considerations or evaluations were inappropriate.” 

However, we discovered an e-mail McDonald sent from her Department computer on 

October 25, 2006, that, while unrelated to the Honors Program and SLIP review, 

indicates that McDonald was aware of Department hiring policies for career attorney 

positions. In the e-mail, McDonald told a friend who had sent her his résumé that 

“since you want career positions, there’s not much I can do apart from recommending 

you because there are legal constraints on career hiring to ensure that it’s not 

political.” 

76 
and MySpace. Our search of McDonald’s Internet activities on her 

Department computer during October and November 2006 confirmed 

that she conducted searches on many of the candidates’ names. We 

were able to determine that, among other things, McDonald searched 

for organizations to which candidates belonged, read blogs by or about 

candidates, and searched Westlaw, school websites, and school 

newspapers for articles by or about candidates.52

Elston and Fridman both remembered McDonald circling items 

on candidates’ applications and writing remarks about those items, 

including employment or affiliations with organizations, judges, law 

school professors, and legislators who could be considered liberal. 

While the Screening Committee normally did not discuss candidates 

through e-mail, Fridman and Elston recalled an e-mail exchange we 

found, dated November 29, in which the Committee discussed a request 

by ATF to add additional SLIP candidates. Both Fridman and Elston 

stated that the comments McDonald made in the November 29 e-mail 

were consistent with the types of comments McDonald had written on 

other applications as she reviewed the Honors Program and SLIP 

candidates.

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 

 52 Through our review of her Internet searches, we were unable to reconstruct 

exactly what information McDonald found about a particular candidate. Although we 

could determine what websites McDonald visited after searching for a specific name, 

we were not always able to determine what page or portion of the websites she read. 

In addition, information that was present on the Internet at the time McDonald was 

conducting searches could have been removed or altered before we attempted to 

replicate her searches. 

77 
(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.’ 

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.” 

When we interviewed former Acting Associate Attorney General 

Mercer about McDonald’s role on the Screening Committee, he said that 

while he did not have extensive discussions with McDonald about that 

work, she mentioned at staff meetings that she was spending time on 

the assignment. He said he recalled her mentioning on one occasion 

that she had learned information suggesting that the applicant had “a 

clear disdain” for the Department’s approach to cases and she was 

discussing this issue with the Screening Committee. Mercer could not 

recall the specifics but believed “the gist of it was this is a person who 

believes that we should not have the ability to, you know, control our 

borders, and get rid of people that are in the country without legal 

status of being here.” 

Mercer said he was not sure of the time frame, but at some point 

McDonald indicated to him that candidates had been deselected 

78 
because of concerns about academic records and sloppiness of 

applications and, at times, “a concern that they wouldn’t be able to 

follow DOJ policy based upon what they had written.” 

Fridman told us that during the summer of 2007, in discussing 

our ongoing investigation, McDonald told Fridman that he had nothing 

to be worried about and that she was the one the OIG was going to be 

concerned about. 

4. Michael Elston 

Elston joined the Department in 1999 as a career Assistant 

U.S. Attorney, first with the Northern District of Illinois and later with 

the Eastern District of Virginia.53 On November 7, 2005, he became the 

Chief of Staff and Counselor to Deputy Attorney General Paul McNulty. 

In April 2006, he converted from a career employee to a political 

appointment. He resigned from the Department in June 2007 and now 

works at a law firm. 

In this section, we provide Elston’s description of the Screening 

Committee’s processes and his explanation for the decisions that he 

made when evaluating candidates. 

a. Instructions to the Committee 

Elston told us that he initially became involved in the 2006 

Screening Committee when Monica Goodling called him and asked him 

to lead it. He told Goodling he had no previous experience with the 

Honors Program or SLIP, but Goodling responded that no one who 

conducted the screening in previous years remained at the Department.

Elston said he did not recall what Goodling said about the 

purpose of the review and she did not articulate the criteria he should 

use in screening the applicants. Although Elston was aware that 

Goodling claimed in her congressional testimony to have told Elston he 

should identify candidates who appeared to share the Attorney 

General’s philosophy, he told us he did not recall her telling him that. 

Elston said Goodling instructed him to select two additional 

people to work on the Committee. Elston said he selected Fridman 

because Fridman had previously impressed Elston and because 

Fridman did not have as full a plate as some other members of the 

ODAG staff. Elston also asked Acting Associate Attorney General 

 53 Elston graduated from law school in 1994. He clerked for a federal judge 

and worked for several years at a law firm before joining the Department in 1999. 

79 
Mercer to select a member of his staff to serve on the Committee, and 

Mercer chose McDonald without any input from Elston. Elston said 

that when he informed Goodling that McDonald was to be on the 

Committee, Goodling “seemed pleased that Esther had been picked and 

said something to the effect ‘well, she’s had experience in this sort of 

thing.’” 

Elston said that OARM Director DeFalaise gave him an outline of 

the timeline for reviewing candidates, but did not give him any criteria 

to follow. Elston told us that he was “not aware of there being any 

criteria for the Honors Program in general, let alone the Department 

review.” 

DeFalaise told us that while he and Elston had generally 

discussed that the purpose of the screening was to ensure that the 

candidates merited inclusion in the Honors Program, OARM was 

supervised by the Deputy Attorney General’s office, and therefore OARM 

did not direct Elston or his office on how to evaluate candidates. 

Elston said that when he asked Fridman to serve on the 

Committee, he described Fridman’s duties as to “just make sure there 

aren’t any wackos in the pool, or something like that,” without 

explaining what he meant by “wackos.” Elston said that he did not give 

Fridman any further explanation of the criteria for evaluating 

candidates because Fridman was an AUSA and would know the criteria 

for a Department lawyer. 

Elston said he later learned from Associate Deputy Attorney 

General Tenpas that Fridman was concerned about Elston’s instruction 

to screen out “wackos.” Elston told Tenpas that he meant someone who 

was not qualified. According to Elston, Tenpas later told him that 

Tenpas had talked to Fridman again, and Fridman’s concerns had been 

resolved. 

We asked Elston whether he instructed Fridman to consider 

whether a candidate’s views appeared to be consistent with the 

Attorney General’s policies or to take into account organizations to 

which a candidate belonged in evaluating whether a candidate might 

have difficulty enforcing a Department policy. While Elston said he did 

not specifically recall it, he acknowledged that there “may have been 

such a discussion.” 

Elston said he also had no discussions with McDonald 

concerning the criteria for evaluating candidates, nor did he ask Mercer 

or anyone else to pass along such information to McDonald because he 

did not think the assignment was “that complicated.” Elston said he 

80 
was not aware of anyone else giving McDonald guidance about what 

criteria she should apply when reviewing the applications. 

b. Elston’s Knowledge of Criteria Used by 

Fridman and McDonald 

Elston said he believed Fridman evaluated candidates on the 

criteria that “anyone would agree is appropriate.” He was aware of no 

evidence that Fridman considered political or ideological affiliations in 

evaluating candidates. 

Elston confirmed that Fridman raised with him early in the 

review process Fridman’s concerns that McDonald was deselecting 

candidates based on “membership in liberal organizations, or those 

kind of things,” revealed in the candidate’s application or from Internet 

searches she conducted. Elston said he reviewed the applications 

Fridman noted and saw that McDonald had either circled or written 

comments about liberal affiliations on the applications and then voted 

to deselect those candidates. 

According to Elston, he instructed Fridman to separate out the 

applications about which Fridman and McDonald disagreed so that 

Elston could make the final decision on those candidates. Elston said 

that he reviewed applications in the “split decision” pile, but that he did 

not review applications on which Fridman and McDonald agreed. 

Elston said he could identify the author of the comments on the 

applications he reviewed because of differences in Fridman’s and 

McDonald’s handwriting. 

Elston said he typically did not make marks on the applications 

he reviewed. Rather, he separated them into final “yes” and “no” piles 

based on his decisions, and he gave the piles to his administrative 

assistant so she could inform OARM of the Screening Committee’s 

decisions. 

Elston said it was apparent to him that, for some percentage of 

the applications, McDonald rejected candidates based on the liberal 

affiliations she circled or commented on, and that Fridman did not “vote 

no for those reasons.” Elston said that because he reviewed the 

applications on a rolling basis, he had “no way of knowing” what 

percentage of applications in the split pile had been rejected by 

McDonald based on the candidate’s liberal affiliations. 

According to Elston, McDonald also wrote comments on the 

applications throughout the process concerning the liberal affiliations of 

candidates she rejected. Elston said McDonald circled organizations 

and, if they were not well-known, made a note on the application. 

81 
Elston said he could not recall the names of any of the organizations to 

which McDonald objected. Elston also recalled McDonald circling a 

judge’s name and commenting that the judge was liberal. In addition, 

McDonald objected to some candidates’ essays, although Elston could 

not remember the basis of the objections. He said he did not recall 

whether McDonald commented about articles written by applicants, but 

said it would not surprise him if she had done that. 

Elston said he thought he recalled McDonald indicating it was a 

negative factor if a candidate had worked for a Democrat. 

Elston said McDonald’s November 29, 2006, e-mail regarding ATF 

SLIP candidates was longer and more detailed than the comments she 

wrote on the applications in the split pile, but the tone and style were 

similar.

 Elston said he was also aware that McDonald conducted Internet 

searches because he saw printouts of search results attached to some 

applications. He said he did not direct Fridman or McDonald to 

conduct the searches, but he did not discourage McDonald from 

conducting such searches after he discovered she was doing it. 

Elston said he could only recall the details of a couple of 

McDonald’s Internet searches. He said they looked like results you 

would get from a Google search on someone’s name. Elston recalled 

one picture that a candidate had posted on the Internet that showed 

“poor judgment,” but said he could not recall any details. 

Elston recalled another article from the Internet that he believed 

McDonald had attached to the candidate’s application. The article 

reported that the candidate stated he would have liked to participate in 

what Elston called “riots” to protest the policies of the World Bank and 

the World Trade Organization. Elston said that when the Civil Rights 

Division appealed the deselection of this SLIP candidate, he provided 

Rena Comisac, the Principal Deputy Assistant Attorney General for the 

Civil Rights Division, a copy of the article. Comisac later responded 

that the Civil Rights Division had enough people to interview and would 

not pursue the appeal. 

Elston said the information in the article was something he 

thought the Civil Rights Division would want to consider and that it 

would be an appropriate basis upon which to deselect a candidate for 

an interview. Elston said he did not consider at that time whether the 

reporter had accurately quoted the candidate in the Internet article, but 

“today I certainly would.” 

82 
Elston said he knew the Committee was not meeting its 

deadlines, due in part to McDonald “spending way too much time on 

each individual application package.” Elston said that he relayed to 

Fridman “the need to complete the project quickly” and assumed that 

Fridman relayed that to McDonald, but said he never spoke to 

McDonald himself about the delays. 

 Elston said he was aware that if McDonald used liberal 

affiliations as proxies for party affiliations to deselect applicants, that 

would be inappropriate. He said he thought at the time of the review 

process that at least “the appearance of what [McDonald] was doing 

was problematic.” However, Elston said he did not raise the issue with 

McDonald because he “didn’t have evidence that those were her actual 

bases; she could have just been commenting on things on the résumé,” 

and he “didn’t have time” to address the issue with her. In addition, 

Elston said he did not want to accuse McDonald of doing something 

inappropriate because he speculated that Goodling may have told 

McDonald to do what she was doing. Elston said that he believed he 

and Fridman could “blunt the impact” of McDonald’s no votes, although 

Elston acknowledged that, in retrospect, this approach was not 

“sufficient.” Elston said he wished he had been “more proactive and 

more protective of the Department’s reputation.” 

c. Elston’s Criteria 

When we asked Elston to describe the criteria he applied in 

reviewing candidates in the split decision group that he reviewed, or in 

reconsidering candidates when components appealed deselections, he 

said “there was no specific criteria on any aspect of these applications 

that I was aware of, or that I employed.” He said that in general he 

looked for good grades and rankings in the top quarter of their law 

school class. He did not consider the quality of the law school, and he 

“made allowances” on grades for those components such as the BOP 

that were less popular and did not attract the same quality of 

candidates that other components did. 

Elston said he looked at the application as a whole, so that no 

one criterion would disqualify a candidate. He said that clerkships in 

general were considered a plus, and federal appellate clerkships, 

followed by federal district court clerkships, were considered the most 

valuable. Elston said he did more than just a quality check on the 

applicants and disqualified candidates for “any host of things,” 

including their essays. 

Elston denied approving or deselecting candidates based on 

political or ideological affiliations indicated on their applications or 

83 
identified through the Internet searches. He said he attempted to do 

exactly the opposite. However, later in our interview Elston said that he 

knew the Committee had put a lot of effort into reviewing the 

applications and he did not want to veto all of McDonald’s decisions. 

He said he often upheld her no vote, but for reasons other than the 

ones relied on by McDonald. Elston said that, in hindsight, he is 

concerned that when McDonald voted no on candidates based on their 

political or liberal affiliations, those candidates received a second review 

from him and therefore received much higher scrutiny than the 

candidates that McDonald approved. He conceded “that the process 

was not as level a playing field as it should have been.” 

Elston said he was very surprised to learn during our interview of 

him that close to half of all SLIP applicants initially were deselected. He 

said he did not know why that happened. Elston also said he did not 

have any sense of deselection trends because the review was done on a 

rolling basis. 

Elston acknowledged in our interview that when he became aware 

in the spring of 2007 of the allegations that Goodling had used political 

affiliations in hiring career immigration judges, “I had in the back of my 

mind the concern that, that some of those same things were at work in 

the Honors Program in hindsight.” He said he became concerned that 

“there was political stuff going on,” and that the Honors Program and 

SLIP may have been “Monica-ized.” 

Elston noted that the Screening Committee’s review became a 

huge problem for the Department and in hindsight he wished he had 

done things differently, including conducting more of a strict quality 

check of the applications rather than a fuller review and consulting 

with the Justice Management Division’s General Counsel to get an 

opinion on whether considering certain factors was consistent with the 

regulations. Elston stated that he knew there was a problem with the 

Screening Committee’s review, but “it was bigger than I recognized.” He 

also said he was “embarrassed to have been a part of something that 

has brought so much negative publicity to the Department.” 

d. Elston’s Explanations on Specific 

Deselected Candidates 

In addition to asking Elston about the general criteria he used, 

we showed Elston applications of approximately 50 highly qualified 

candidates who were deselected and asked him to explain the decisions. 

These were candidates Fridman said he believed he approved, which 

indicated that the two negative votes were cast by McDonald and 

Elston. As an illustration of his answers, we provide Elston’s 

84 
explanation for how he believed he evaluated several of those 

candidates. 

For example, we asked Elston about a deselected Honors Program 

candidate who was first in his class at Georgetown Law School, had 

clerked for a judge on the U.S. District Court for the Southern District 

of New York, was clerking for a judge on the U.S. Court of Appeals for 

the Second Circuit, and had been an articles editor on a law journal. 

He had also worked for a Democratic U.S. Senator and a human rights 

organization. Elston said he did not recall why this candidate was 

deselected. He noted that the candidate had written a note about using 

international law as a tool in constitutional interpretation. Elston 

explained that if McDonald had read the article and confirmed that the 

candidate was advocating the use of international law in constitutional 

interpretation, that would “be of concern.”

We asked Elston about another deselected Honors Program 

candidate who was enrolled in a joint degree program for law and urban 

planning at Harvard, served as an articles editor on a law journal, 

graduated in the top 5 percent of his undergraduate class at Harvard, 

and had worked on a congressional campaign for a Democrat.54 Elston 

said he remembered the applicant because he had “chuckled” at the 

following portion of his essay: 

In high school I thought that I wanted to captain a Green 

Peace skiff in the North Atlantic. I figured that was what 

serious environmentalists did, and I wanted to be a serious 

environmentalist. I decided later that potential martyrdom 

on the high seas was not for me, and rather than operate at 

the margins, I would prefer a job in which I could have a 

less antagonistic and more direct impact. 

When asked how he voted on this candidate, Elston said, “A lot of 

times when I chuckled, I said no.” Elston said he was certain 

McDonald would have circled items on this application. 

I would imagine this is one she felt kind of strongly about. 

And that would have . . . played into my thinking, as well, 

[be]cause I didn’t . . . feel comfortable just sort of trashing 

all the work that was, was being done by Esther and Dan. 

Would I . . . let it though today? Sure. . . . 

 54 The applicant did not indicate the congressional candidate’s party affiliation 

on his application, but an Internet search revealed that the candidate was a 

Democrat. 

85 
I couldn’t vote . . . with Dan all the time. I mean, if Esther 

felt very strongly and it came though clearly on a résumé, I 

gave that weight. . . . 

You can review the application package and come away 

with a, with a conclusion that this is not a person who 

comes to the Department with [an] . . . evenhanded 

approach to environmental issues. And . . . I think [in] that 

case I voted with Esther on it. 

We asked Elston about a deselected Honors Program candidate 

selected by ENRD who was in the top 10 percent of his class at Lewis 

and Clark University, was an articles editor for an environmental 

journal, and had worked for Earthjustice and the Northwest 

Environmental Defense Center.55 The candidate indicated in his essay 

a strong interest in working in environmental law, including that he 

wanted “to serve as part of the team charged with enforcing the world’s 

most comprehensive environmental laws, and with defending the 

crucial work of our environmental and resource management agencies.” 

Elston commented that while he did not know anything about the 

organizations that the candidate worked for 

the impression I’m left with after a quick look at this is that 

this is someone who had come to the Environment 

Division . . . with an agenda, not with an open mind as to 

the best way to enforce the environment, environmental 

laws. . . . I had a negative reaction to that. So, I may well 

have voted with Esther on that one. 

We asked Elston about another deselected Honors Program 

candidate who had graduated from Yale Law School, had been a 

member of the Yale Law Journal, graduated summa cum laude with a 

Bachelor of Arts degree from Yale College, was clerking for a judge on 

the U.S. Court of Appeals for the Second Circuit, had studied Arabic, 

and had worked with a human rights organization. 

Elston said he looked for people with Arabic language skills and 

that he also knew the judge this candidate was clerking for, so he 

believed he would have been enthusiastic about this candidate. Elston 

 55 The applicant described Earthjustice as “the nation’s leading nonprofit 

environmental law firm” and the Northwest Environmental Defense Center as a 

“nonprofit, public interest environmental organization as well as Lewis and Clark Law 

School’s largest student group.” Its website describes Earthjustice as the successor to 

the Sierra Club Legal Defense Fund. 

86 
could not explain why the candidate was deselected and said he was 

“starting to get concerned that some ‘yes’ pile [applications] got in the 

‘no’ pile.” 

We asked Elston about a deselected SLIP candidate who was a 

student at Harvard Law School, graduated in the top 5 percent of his 

undergraduate class from the University of California, Berkeley, was an 

editor on Harvard’s human rights journal, had interned with a city 

attorney’s office and a state court judge, and had worked for 5 years in 

marketing before entering law school. 

In his essay, the candidate referred to his perception that working 

for the government would be “work for the people” where “principles 

forged by experience, prudence and moral obligation” would guide the 

work. In his last line of the essay, the candidate stated, “It is precisely 

this ability to have my principles guide my work that inspires me to be 

a government lawyer.” Elston thought he would have reacted negatively 

to that last sentence because “I believe that a civil servant enforces the 

law impartially [and] often times is called upon to set aside his or her 

own beliefs.” However, Elston stated that he had no recollection of 

whether he reviewed the application and voted no. 

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.

e. Elston’s Decisions on Appeals 

We also questioned Elston about his decisions on the 

components’ appeals of deselected candidates. As noted above, Elston 

alone decided the appeals submitted by the components. Elston denied 

component appeals of 16 of the 32 Honors Program candidates and 13 

of the 18 SLIP candidates who had been initially deselected. Because 

many of the candidates whose appeals were denied had strong 

academic credentials, we showed Elston some of those candidates’ 

applications and asked him to explain his decisions. Elston at first said 

that “for the most part I granted appeals.” However, Elston also stated 

that he had a “bias against overturning the work that the Screening 

Committee had done” and accordingly his “bias was to not grant 

appeals because to do so would undermine the departmental review 

process.” Elston said he 

was not going to automatically reverse decisions that were 

already made. I felt like there was some burden on them 

87 
[the components] to give me a compelling reason to 

interview them. 

We discussed with Elston appeals of specific candidates. For 

example, we asked Elston why he denied the appeals of two candidates 

by the Civil Division. One candidate was a student at Harvard Law 

School, had an undergraduate degree from Princeton University, had 

worked for Planned Parenthood and a Democratic Senator, and had 

received high praise for her work during a SLIP internship the previous 

summer. Another candidate had graduated sixth in his law school 

class from the University of Alabama, had been a member of the law 

review, had interned for the Public Defender Service, currently was 

clerking for a federal judge, and had written a paper on the detention of 

aliens under the Patriot Act. 

Elston’s only explanation for deselecting these candidates was 

that he was “pretty offended” by the Civil Division’s appeal, which 

stated that the Division screeners had taken the responsibility of 

selecting candidates seriously and “given the care we exercise in 

making these selections, we would urge some deference to the difficult 

choices.” Elston said he found the appeal offensive because the 

Division employees were “basically saying we know better” and “you 

should defer to us.” However, Elston could not explain why he accepted 

other candidates appealed by the Civil Division but denied these two 

candidates. He noted that his appeal decision e-mail to the Civil 

Division was sent late at night and added, “I didn’t spend a lot of time 

thinking about them.” 

Elston recalled that Civil Division AAG Keisler subsequently made 

a personal appeal in a telephone call on behalf of the candidate who 

worked for Planned Parenthood, which caused Elston to reverse his 

decision and reinstate that candidate. Elston said he did not recall 

Keisler telling him that people were concerned this candidate had been 

deselected because she worked for Planned Parenthood. 

We asked Elston why he denied the request of U.S. Attorney Carol 

Lam to interview a candidate who graduated in the top third of her 

class at Stanford Law School, was summa cum laude with an 

undergraduate degree from George Washington University, was clerking 

for a judge on the U.S. Court of Appeals for the Ninth Circuit, and had 

previously worked for the Center for the Study of Sexual Minorities in 

the Military.56

 

(Cont’d.)

56 According to its website, the Center for the Study of Sexual Minorities in 

the Military, which has since changed its name to the Michael D. Palm Center, 

88 
Elston said he could not recall the reasons for his decision, but 

thought he may have struck the candidate based on a reference in her 

essay that being a federal prosecutor would afford her the opportunity 

to exercise prosecutorial discretion in deciding what charges were 

appropriate and whether to offer a plea bargain. Elston said this 

caused him to conclude that “this is the kind of AUSA that would in my 

view not necessarily stand up for the law with respect to sentencing and 

department policy.” 

We asked Elston about his denial of the Antitrust Division’s 

appeal on behalf of a candidate who was in the top 10 percent of his 

class at the University of Minnesota Law School, was a law review 

editor, graduated from the Wharton School of Business at the 

University of Pennsylvania, was clerking for a federal appellate judge, 

and listed membership in both the Federalist Society and the American 

Constitution Society with a comment that he was “open-minded to all 

points of view.” The candidate also noted in his essay that he was 

capable of defending positions such as the constitutionality of the 

“President’s NSA‘s wiretapping program” even though he “remained 

personally conflicted” about the program. 

 Elston said he was “surprised” that he did not grant the appeal 

and could not recall the reason for his decision. He noted, however, 

that the dual memberships in the Federalist Society and the American 

Constitution Society was not the reason. Elston said that he may not 

have granted the appeal because this candidate was listed fourth 

among six candidates that the component was appealing and he may 

have assumed that the component listed the candidates in order of 

priority. However, Elston could not recall why he granted the appeals 

of other candidates requested by this component, including one who 

was fifth on the appeal list, had lower grades, attended a lower-tier law 

school, and had no political or ideological affiliations on his application.

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 

 

promotes the interdisciplinary analysis of lesbian, gay, bisexual, transgender, and 

other marginalized sexual identities in the armed forces. Its work has been cited by 

those supporting the inclusion of homosexuals in the military. 

89 
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.”57 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. 

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.58 AAG Keisler had sent Elston an 

e-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.” 

 57 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. 

58 Professor Ackerman published a book in the spring of 2006 entitled, Before 

the Next Attack: Preserving Civil Liberties in an Age of Terrorism. 

90 
We also asked Elston about a SLIP candidate who was a thirdyear student at Yale Law School, had secured a clerkship on the 

U.S. Court of Appeals for the Ninth Circuit for the fall of 2007, had a 

master’s degree in history from Harvard University, graduated cum 

laude from Yale College, had successfully served as a SLIP with the 

Department, and had a security clearance. The candidate’s application 

also stated that she had worked for a Democratic Congressman and 

had worked at the Yale Lowenstein Human Rights Clinic on human 

rights issues “arising from the war on terror.” Elston was unable to say 

why the candidate was deselected. Elston said he remembered being 

moved in a positive way by the personal essay the candidate had 

written about some difficulties in her childhood. However, Elston said 

he found this candidate’s essay “a little bit troublesome” because she 

said she wanted to work at the Department where she would “be able to 

consider both the needs of my client and also what is best for my 

country.” Elston said that “line attorneys in the Department of Justice 

don’t get to indulge themselves [by] deciding for themselves what’s best 

for the country.” Nevertheless, Elston said he did not think that 

statement in the essay would constitute a reason to disqualify 

somebody with an outstanding record and an otherwise great essay. 

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. 

Elston said he took those kinds of considerations into account 

when reviewing the substance of applicants’ essays. He said that an 

attorney’s “job is to follow the policies of the Department even if you 

disagree with them. And so, that’s the kind of person that I’m looking 

for when I’m looking for a line Assistant.” 

91 
H. Conclusions on 2006 Honors Program and SLIP Hiring 

Process 

The evidence in our investigation – including the documentary 

evidence, the testimony of witnesses, and the analysis of the 

applications of candidates who were selected for interviews and who 

were deselected by the 2006 Screening Committee – supports the 

conclusion that political or ideological affiliations were used to deselect 

candidates from the Honors Program and SLIP. 

As discussed below, we concluded that while Fridman did not use 

political or ideological affiliations in his evaluation of candidates, the 

evidence indicates that both McDonald and Elston did. As a result, 

many qualified candidates were deselected by the Screening Committee 

because of their perceived political or ideological affiliations. 

First, with regard to Fridman, we found him to be credible in his 

explanation of how he conducted his review of candidate applications 

and in describing what factors he considered. Fridman also took 

reasonable steps to notify his supervisors that improper criteria may 

have been applied in the Honors Program and SLIP review process. 

Fridman was uncomfortable with the instructions he was given by 

Elston, and he discussed them with Tenpas, his first line supervisor. 

Tenpas advised him to apply only criteria he believed were appropriate 

and to seek further clarification from Elston, which Fridman did. When 

Fridman observed McDonald applying what he believed were 

inappropriate criteria, he brought his concern to Elston’s attention, 

even pointing out specific examples. Elston assured Fridman that he 

agreed with him and that he need not worry about McDonald because 

Elston would cast the deciding vote. We believe that Fridman acted 

appropriately under the circumstances. 

The evidence demonstrates that, by contrast, McDonald used 

inappropriate criteria in her evaluations. The November 29, 2006, 

e-mail from McDonald to Elston and Fridman opining on ATF SLIP 

candidates is direct evidence that McDonald inappropriately evaluated 

candidates based on the candidates’ political or ideological affiliations. 

McDonald wrote that she voted against candidates because their essays 

used “leftist commentary and buzz words” such as “environmental 

justice,” “social justice,” “making policy,” or “anything else that involves 

legislating rather than enforcing.” She also expressed disapproval of 

candidates’ affiliations with liberal organizations such as the American 

Constitution Society, the Poverty and Race Research Action Council, 

Greenpeace, and Greenaction. Her remarks in the e-mail about “leftist 

commentary” suggested that this was not an isolated incident or the 

first time she had applied these criteria. Moreover, Fridman and Elston 

92 
both told us that McDonald’s comments in the November 29 e-mail 

were consistent with other comments she made in her review of Honors 

Program and SLIP applications. 

Fridman also told us that McDonald circled items and expressed 

concern about applications that indicated a candidate had worked for a 

judge, law professor, or legislator she considered liberal, was a member 

of or had worked for a liberal organization, or expressed views in a law 

review article that were not entirely consistent with positions taken by 

the current administration. Elston also acknowledged that McDonald 

appeared to have considered political or ideological affiliations in her 

review of applications. 

We do not know what, if any, instructions McDonald was given 

about how to judge the candidates.59 No one acknowledged instructing 

her or knew who did. We concluded that the Department’s handling of 

such an important assignment as screening for Honors Program and 

SLIP hiring to be deficient. First, the Department assigned a new and 

inexperienced attorney to perform this important function. McDonald 

had been at the Department less than a month when she received this 

assignment and was only 3 years out of law school. Second, we found 

no evidence that Mercer, Elston, or anyone else gave her any 

instructions about how to perform the screening or what criteria should 

and should not be used. Third, when Elston, the head of the 

Committee, was informed by Fridman that McDonald appeared to be 

making recommendations based on political or ideological affiliations, 

Elston did not discuss this with her or instruct her that this was 

inappropriate. 

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. Elston 

failed to take appropriate action when he learned that McDonald was 

routinely deselecting candidates on the basis of what she perceived to 

be the candidates’ liberal affiliations. We also concluded that Elston 

 59 However, we found evidence that McDonald knew that using political and 

ideological affiliation was inappropriate, but did it anyway. As noted above, in an 

e-mail dated October 25, 2006, unrelated to the Honors Program and SLIP, McDonald 

advised a friend applying for a career position with the Department “there’s not much 

I can do apart from recommending you because there are legal constraints on career 

hiring to ensure that it’s not political.” 

93 
deselected some candidates – and allowed the deselection of others – 

based on impermissible considerations. 

As the leader of the Screening Committee, Elston should have 

ensured that the Committee members used appropriate criteria in 

making decisions, in accord with federal law and Department policy. 

Yet, he did not discuss with Fridman and McDonald the proper criteria 

for evaluating candidates. Elston provided only cursory and vague 

instructions to Fridman (such as eliminate “wackos and wack jobs”). 

Elston’s additional instruction to Fridman that they wanted to hire 

candidates who were supportive of or who had views consistent with the 

Attorney General’s views on law enforcement was also deficient because 

such an ambiguous criterion easily could be used to identify and 

deselect those who held ideological views that differed from the 

administration’s. Elston failed to provide any instruction to McDonald, 

who was a junior attorney new to the Department. Moreover, after he 

became aware early in the screening process that McDonald was 

rejecting candidates based upon what she perceived to be their liberal 

affiliations, he did not discuss that impropriety with her.60

Elston told us that he decided not to talk to McDonald about the 

criteria she was using because even if she was rejecting candidates 

based on their liberal affiliations, he and Fridman could overrule her. 

Elston admitted, however, that he frequently gave deference to 

McDonald’s decisions because he could not always vote against her 

“and trash the work of the Screening Committee.” Elston also stated 

that he wished he had been “more proactive and more protective of the 

Department’s reputation.” 

As explained below, we concluded that Elston violated federal law 

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 

 60 Although Elston stated that he did not know whether McDonald’s no votes 

were actually based upon the negative comments she was making about the 

candidates’ liberal affiliations, we found that statement disingenuous. Fridman told 

Elston that McDonald was doing this, and the notations on the applications, which 

Elston recognized as McDonald’s handwriting, showed that McDonald was circling 

and commenting on these groups. Moreover, many of these candidates had stellar 

credentials, and there was no other apparent reason for McDonald recommending 

their deselection. 

94 
specific cases to give a credible reason as to why highly qualified 

candidates with liberal or Democratic Party affiliations were deselected. 

While Elston generally denied that he considered political or 

ideological affiliations in evaluating candidates, he admitted when 

questioned about certain candidates that he considered aspects of 

those candidates’ ideological affiliations in his evaluation. For example, 

Elston admitted that in two instances he would have voted with 

McDonald to deselect the candidates based on their affiliations with 

pro-environment causes because he did not want the candidates 

coming to the Department “with an agenda” or without “an evenhanded approach” to environmental issues. 

 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. 

However, Elston could give no reason why he approved other 

candidates included in the Division’s appeal. Similarly, Elston believed 

he may have rejected one highly qualified candidate because the 

candidate was listed fourth among the list of six candidates that the 

component was appealing and he assumed the component was listing 

the candidates in order of priority. However, Elston granted the appeal 

for another candidate who was listed fifth out of the six candidates the 

component was appealing, had lower grades at a lower-tier school than 

the candidate who was listed fourth, but who had no affiliations on his 

application that could be categorized as liberal or conservative. 

Similarly, we did not find credible Elston’s explanation that he 

may have denied the appeal of a highly qualified candidate who had 

worked for the Center for the Study of Sexual Minorities in the Military 

because he concluded the candidate would not “stand up for the law 

with respect to sentencing and Department policy” due to the statement 

in her essay that she would be able to exercise prosecutorial discretion 

as a federal prosecutor. We also did not credit Elston’s other 

explanation for denying this candidate – that she was not academically 

qualified because she was in the top third rather than the top quarter of 

her class at Stanford Law – since it was inconsistent with his actions in 

approving other candidates from lower-tier law schools with lower 

grades. 

95 
During his interview, Elston also frequently pointed to lines in 

candidates’ essays that may have been a basis for deselecting 

candidates because he said these statements could be indications that 

the candidates would improperly follow their own consciences rather 

than the Department’s policies. These included statements such as the 

candidate wanting to work for the Department because the job would 

allow the candidate “to consider what is best for my country.” 

In addition to Elston’s failure to provide credible explanations for 

his actions during his interview, we concluded that Elston was not 

candid with others in the Department who questioned him during the 

hiring process about why candidates were being deselected. According 

to at least 12 witnesses, Elston stated that the candidates were 

deselected on the basis of grades, grammatical mistakes in writing, or 

inappropriate information on the Internet. Yet, as our data analysis 

demonstrated and as Elston reluctantly acknowledged, these reasons 

could not adequately explain why many candidates were deselected. 

Moreover, Elston tried to minimize his role in selecting candidates 

when he was questioned by others about the Committee’s decisions. 

Elston frequently explained that other Committee members had been 

responsible for the decisions and described his role as a conduit. 

However, the evidence demonstrated that he was casting the deciding 

vote on a significant number of candidates that Fridman had approved 

and McDonald had rejected. 

 In sum, we found that Elston was aware that McDonald was 

rejecting candidates based on her perception of the candidates’ political 

or ideological affiliations and that he failed to intervene, discuss it with 

her, or stop her from doing so. We also concluded that Elston 

committed misconduct, and violated federal law and Department policy, 

when he deselected candidates and denied appeals based on his 

perception of the political or ideological affiliations of the candidates. 

 We also concluded that OARM Director DeFalaise did not 

adequately or timely address the concerns that were brought to his 

attention concerning the Screening Committee’s deselections.61 As 

Director of OARM, DeFalaise played a key oversight role in the 

administration of the Honors Program and SLIP. During the 2006 

process, he became aware that an unusually large number of 

candidates were deselected, that the deselections included highly 

 61 OPR Counsel H. Marshall Jarrett recused himself from the evaluation of 

DeFalaise’s conduct. 

96 
qualified candidates, and that some component officials were concerned 

that political considerations were being taken into account. Although 

Elston told DeFalaise that the deselections were based on legitimate 

reasons such as academic qualifications, we believe that DeFalaise had 

sufficient evidence to, at a minimum, raise concerns about the 

Screening Committee’s criteria or the deselection of particular 

candidates directly with Elston or discuss those concerns with other 

senior leaders at the Department. 

 Finally, we concluded that Acting Associate Attorney General 

Mercer did not adequately address the concerns that were brought to 

his attention by several senior Department officials that the Screening 

Committee’s deselections appeared to have been politicized. In his role 

as Associate Attorney General, Mercer had oversight authority over the 

Tax Division and Civil Division, as well as other components 

participating in the Honors Program and SLIP hiring process. In 

addition, one of his own staff members, McDonald, was a member of 

the Screening Committee. When Mercer questioned McDonald about 

the criteria the Screening Committee had applied, McDonald told him 

that the deselections were based on concerns about academic records, 

sloppiness of applications, and at times, “a concern that [the 

applicants] wouldn’t be able to follow DOJ policy based upon what they 

had written.” 

 Mercer also relied on Elston’s assurances that the deselections 

were based on legitimate concerns about academics or the sloppiness of 

applications without any further inquiry, even though he had been 

informed by other Department officials that they believed that 

academically qualified candidates had been deselected. Similarly, 

Mercer relied on Elston’s assurances that Elston would improve the 

process even though Elston was involved in selections that were alleged 

to have been politicized. Further, Mercer had learned from Associate 

Deputy Attorney General David Margolis that the meeting Elston held 

on improving the process had not gone well and that a lot of people had 

left the meeting “disturbed” and “not satisfied.” We believe that, based 

on Mercer’s oversight authority over the Tax and Civil Divisions and 

other participating components, he should have pursued the matter 

further with Elston. 

97 
IV. Conclusions and Recommendations 

As our report describes, in 2002 the Honors Program and SLIP 

hiring process was fundamentally changed by an Attorney General’s 

Working Group to enable the Department’s senior leadership to have 

more input into the selection of candidates. Prior to that time, career 

employees within each component administered the interview and 

selection process for the Honors Program and SLIP. In 2002, 

participation in the process by political officials in the components 

increased, as directed by the Attorney General’s Working Group, but 

dropped off significantly in subsequent years. 

Under the system implemented by the Attorney General’s 

Working Group beginning in 2002, a Screening Committee composed 

primarily of politically appointed employees from the Department’s 

leadership offices had to approve all Honors Program and SLIP 

candidates for interviews by the components. 

In 2002, many deselections were required because of budget 

constraints. The data showed that candidates with Democratic Party 

and liberal affiliations apparent on their applications were deselected at 

a significantly higher rate than candidates with Republican Party, 

conservative, or neutral affiliations. This pattern continued to exist 

when we compared a subset of academically highly qualified candidates 

from the three groups. However, we found no other evidence that the 

members of the Screening Committee intentionally considered political 

or ideological affiliations in making their deselections, and the 

Committee members all denied doing so. While we were unable to 

prove that any specific members intentionally made deselections based 

on these prohibited factors, the data indicated that the Committee 

considered political or ideological affiliations when deselecting 

candidates. 

During the next 3 years, from 2003 to 2005, the Screening 

Committee made few deselections, and we found no evidence that 

deselections were made based on political or ideological affiliations. 

However, we found that in 2006 the Screening Committee 

inappropriately used political and ideological considerations to deselect 

many candidates. We determined that a disproportionate number of 

the deselected Honors Program and SLIP candidates had liberal 

affiliations as compared to the candidates with conservative affiliations. 

This pattern was also apparent when we examined the data for 

membership in the liberal American Constitution Society compared to 

98 
the conservative Federalist Society for SLIP candidates and when we 

compared applicants with Democratic Party affiliations versus 

Republican Party affiliations for both Honors Program and SLIP 

candidates. The disproportionate pattern was also apparent when we 

examined candidates who were highly qualified academically. 

 The documentary evidence and witness interviews also support 

the conclusion that two members of the 2006 Screening Committee, 

Esther Slater McDonald and Michael Elston, took political or ideological 

affiliations into account in deselecting candidates in violation of 

Department policy and federal law. For example, the evidence showed 

that McDonald wrote disparaging statements about candidates’ liberal 

and Democratic Party affiliations on the applications she reviewed and 

that she voted to deselect candidates on that basis. 

We also found that Elston, the head of the 2006 Committee, 

failed to take appropriate action when he learned that McDonald was 

routinely deselecting candidates on the basis of what she perceived to 

be the candidates’ liberal affiliations. The evidence also showed that 

Elston himself deselected some candidates – and allowed the 

deselection of others – based on impermissible considerations. Despite 

his initial denial in our interview that he did not consider such 

inappropriate factors, he later admitted in the interview that he may 

have deselected candidates in a few instances due to their affiliation 

with certain causes. In addition, Elston was unable to give a credible 

reason as to why specific highly qualified candidates with liberal or 

Democratic credentials were deselected. 

We concluded that, as a result of the actions of McDonald and 

Elston, many qualified candidates were deselected by the Screening 

Committee because of their perceived political or ideological affiliations. 

We believe that McDonald’s and Elston’s conduct constituted 

misconduct and also violated the Department’s policies and civil service 

law that prohibit discrimination in hiring based on political or 

ideological affiliations. 

However, because both McDonald and Elston have resigned from 

the Department, they are no longer subject to discipline by the 

Department for their actions. Nevertheless, we recommend that the 

Department consider the findings in this report should either McDonald 

or Elston apply in the future for another position with the Department. 

With regard to the processes used by components for selecting 

candidates, we received significant allegations that inappropriate 

considerations were used in selecting candidates in the Civil Rights 

Division. The OIG and OPR are jointly investigating various allegations 

99 
involving the Civil Rights Division, and we will provide our findings in a 

separate report when that investigation is concluded. 

As to the remaining components, we generally found that the 

Honors Program and SLIP hiring processes were largely controlled by 

career employees and were merit based. We did not find evidence to 

indicate that components employed inappropriate criteria such as 

political or ideological affiliations to select candidates for the Honors 

Program or SLIP. While some concerns were raised concerning the 

Criminal Division’s selection of candidates in 2005, we did not find 

sufficient evidence to conclude that political or ideological affiliations 

were used to either approve or eliminate candidates for that Division. 

 In addition, we believe that various employees in the Department 

deserve credit for raising concerns about the apparent use of political or 

ideological consideration in the Honors Program and SLIP hiring 

processes. For example, Daniel Fridman deserves praise for reporting 

his concerns about the process in 2006 to both his supervisor and 

Elston and for avoiding the use of improper considerations in his review 

of candidates for the Honors Program and SLIP. A few DOJ political 

employees also objected to the apparent use of political or ideological 

considerations in the hiring process, such as Assistant Attorneys 

General Peter Keisler and Eileen O’Connor, and they should be credited 

for raising their concerns. Certain career employees, particularly in the 

Tax Division and the Civil Division, also pressed concerns about the 

hiring process. By contrast, we believe that others in the Department, 

such as Acting Associate Attorney General William Mercer and OARM 

Director Louis DeFalaise, did not sufficiently address the complaints 

about the deselections. 

 As discussed in this report, as a result of the widespread 

complaints from career employees that arose following the 2006 

selection process, in April 2007 the Department changed the process 

for selecting Honors Program and SLIP candidates. Under the new 

process, the Screening Committee was replaced by an Ad Hoc Working 

Group composed of a senior career employee from each of the major 

Department components that participate in the Honors Program and 

SLIP. The components and the Ad Hoc Working Group were also 

directed to follow the Component Review Standards Guidance that 

notes that only merit-based criteria should be considered in selecting 

candidates. 

 

 Under the current process, the Ad Hoc Working Group reviews 

the Honors Program candidates selected by the components only to 

ensure that the components’ selections comply with the Component 

Review Standards Guidance and that the number of interviews does not 

100 
exceed budgetary limitations. The Working Group must provide a 

component with a written explanation of any candidates it identifies as 

non-compliant with the guidance. In 2007 only 15 candidates were 

deselected, 14 because of poor academic standing and 1 because of 

poorly written essays. SLIP candidates are not subject to review by the 

Ad Hoc Working Group. Instead, OARM randomly monitors SLIP 

selections for compliance with the guidance. 

 In addition to the changes made to the Honors Program and SLIP 

hiring process, beginning in the summer of 2007 the Department began 

briefing all new political appointees on merit system principles and 

prohibited personnel practices as part of the official orientation process. 

Further, Attorney General Mukasey issued a memorandum on 

March 10, 2008, requiring all political appointees to acknowledge that 

they have read the Department regulations that hiring must be merit 

based and that political affiliations cannot be considered. 

 We believe that these changes to the Honors Program and SLIP 

hiring process are important changes that can help address many of 

the problems that we found in our investigation. However, we believe 

the Department should consider additional changes to help ensure that 

political or ideological affiliations are not inappropriately used to 

evaluate candidates for the Honors Program and SLIP in the future. 

 First, the April 26, 2007, memorandum from the Director of 

OARM describing changes to the Honors Program and SLIP should be 

strengthened. The memorandum contains the Component Review 

Standards Guidance, which provides a description of the merit-based 

criteria that should be used to evaluate Honors Program and SLIP 

candidates. However, the memorandum should also explicitly state 

that political affiliations may not be used as criteria in evaluating 

candidates and that ideological affiliations cannot be used as a proxy to 

discriminate on the basis of political affiliation. As we found in this 

investigation, membership in organizations that are perceived as liberal 

or conservative can easily be used as a screening device to discriminate 

on the basis of political affiliation. Moreover, discriminating on the 

basis of ideological affiliation violates the merit-based principles 

governing federal employment for career employees, and it undermines 

confidence in the Department’s mission. 

 In addition, we believe it is important to consistently remind all 

employees involved in the selection of Honors Program and SLIP 

candidates that the selections must be merit based without 

consideration of political affiliations. Thus, we recommend that the 

Department implement a process to require all employees participating 

in the selection of Honors Program and SLIP candidates to formally 

101 
acknowledge that they have read the Component Review Standards 

Guidance and will abide by the standards when selecting candidates. 

 We further recommend that the Department include a provision 

in its Department of Justice Human Resource Order that emphasizes 

that the process for hiring career attorneys must be merit based and 

clarifies both that political affiliations cannot be considered and that 

ideological considerations cannot be used a proxy to discriminate on 

the basis of political affiliations. 

 We also noted that several components that issued their own 

guidance on hiring failed to include politics on the list of factors, such 

as race, gender, and age, that cannot be considered in hiring decisions. 

We recommend that the Department ensure that all components that 

issue their own guidance on hiring of career employees consistently 

state that political affiliations cannot be considered and that ideological 

affiliations cannot be used as a proxy for determining political 

affiliations. 

 

 In addition, we believe that the briefing currently provided to 

political appointees about the merit system principles can be 

strengthened. The written briefing for political appointees stresses that 

candidates cannot be discriminated against on the basis of political 

affiliation without mentioning ideological affiliations. We believe the 

briefing and training material should be clarified to note that 

candidates should be evaluated based on their merits and that 

ideological affiliations may not be used as a screening device for 

discriminating on the basis of political affiliations. 

 Finally, we believe that the Department leaders, as well as the Ad 

Hoc Working Group, must be vigilant to ensure that political or 

ideological affiliations are not used to select candidates for the Honors 

Program or the SLIP. The Honors Program is a critical recruiting tool 

for the Department to bring in talented new attorneys, many of whom 

will become long-term public servants. It is important for the 

Department to have a fair and open competition for these positions and 

to ensure that the selection for the program is based on non-partisan 

considerations. While we believe the Department has taken important 

steps to address issues that arose in the selection of candidates for the 

Honors Program and SLIP candidates in the past, we believe the 

Department must ensure that the serious problems we found in Honors 

Program and SLIP hiring do not recur in the future. 

102 
APPENDIX 

2002 HP Organizations

Liberal Organizations

American Civil Liberties Union 

American Constitution Society 

Amnesty International 

Bisexual, Gay, Lesbian Advocates 

Bisexual Law Student Association 

Capital Area Immigrants’ Rights Coalition 

Center for Constitutional Rights 

Chesapeake Bay Foundation 

Coast Alliance 

Committee of Refugees from El Salvador 

Conservation International 

Conservation Law Foundation 

Earthjustice 

Electronic Privacy Information Center 

Environmental Defense Fund 

Environmental Resources Trust 

Florence Immigrant and Refugee Rights Project, Inc. 

Georgetown University Institute for Public Representation 

Georgia Project Center for Democratic Renewal 

Grassroots Environmental Effectiveness Network 

Human Rights Campaign 

Human Rights Watch 

Innocence Project 

International Human Rights Law Group 

Law Students Against the Death Penalty 

Lesbian, Gay, Bisexual, and Transgender Alliance 

Mexican American Legal Defense 

Midwest Environmental Advocates 

NAACP Legal Defense 

National Wildlife Federation 

Natural Resources Defense Council 

Nature Conservancy 

New York University Brennan Center for Justice 

Northwest Environmental Defense Center 

NOW Legal Defense 

Partnership for Civil Justice 

Physicians for Human Rights 

Planned Parenthood 

103 
Pridelaw 

Public Citizen 

San Diego Baykeeper 

Santa Monica Mountains Conservancy 

Save Our Wetlands, Inc. 

Sierra Club 

Texas Immigrant and Refugee Coalition 

Conservative Organizations

Alliance Defense Fund 

American Center for Law and Justice 

American Family Association Center for Law and Policy 

Blackstone Fellowship 

Center for Faith and Freedom 

Christian Legal Society 

Columbia Coalition for Life 

Defenders of Property Rights 

Federalist Society 

Heritage Foundation 

Leadership Institute 

National Center for Policy Analysis 

Notre Dame/St. Mary’s College Right to Life Club 

Thomas More Center for Law and Justice 

104 
2002 SLIP Organizations

Liberal Organizations

American Civil Liberties Union 

Alliance for Justice 

American Constitution Society 

Amnesty International 

Ayuda, Inc. 

Battered Immigrant Women Project 

Campaign to End the Death Penalty 

Capitol Area Immigrants Rights Coalition 

Carr Center for Human Rights 

Center for Reproductive Law and Policy 

Central American Refugee Clinic 

Citizen Works 

Conservation Law Foundation 

Earthjustice 

East Bay Workers’ Right Clinic at Boalt Law School 

Electronic Frontier Foundation 

Farmworker Legal Services 

Florence Immigrant and Refugee Rights Project 

Florida Immigrant Advocacy Union 

Friends of Farmworkers, Inc. 

Georgia Equality Project 

Heal the Bay 

Human Rights Watch 

Innocence Project 

International Refugee Center of Oregon 

Lamba Law Association 

Lawyers Committee for Civil Rights 

Massachusetts Law Reform Institute 

Mexican American Legal Defense 

Migrant Legal Action Program, Inc. 

NAACP Legal Defense Fund 

National Center for Law and Economic Justice 

National Consumer Law Center 

National Immigration Project 

National Organization for Women 

Natural Resources Defense Council 

Oceana 

Planned Parenthood 

Potomac Conservancy 

Prisoner’s Rights Research Project 

Public Citizen 

Public Justice Center 

105 
Public Research Interest Group 

Rocky Mountain Immigrant Advocacy Network 

San Francisco Estuary Project 

Sierra Club 

Students Against Sweatshops 

Texas Immigrant and Refugee Coalition 

Tobacco Products Liability Project 

Washington Lawyers Committee for Civil Rights 

Wildlife Society 

Women Strike for Peace 

Workers’ Rights Clinic at UC Hastings College of Law 

Conservative Organizations

Alliance Defense Fund 

American Center for Law and Justice 

Campus Crusade for Christ 

Christian Legal Society 

Conservative Political Action Conference 

Defenders of Property Rights 

Federalist Society 

National Center for Policy Analysis 

National Right to Work Committee 

National Taxpayers Union and Foundation 

Oregonians in Action 

Texas Eagle Forum 

Thomas More Legal Society 

Thomas More Pre-Law Society 

106 
2006 HP Organizations

Liberal Organizations

American Civil Liberties Union 

American Constitution Society 

Amnesty International 

Asylee Family Rescue Project 

Ayuda, Inc. 

California SLAPP Project 

Capital Area Immigrants’ Right Coalition 

Carter Center 

Cascade Resources Advocacy Group 

Catawba Riverkeeper Foundation 

Civil Rights Empowerment Project 

Clean Water Action 

Communities for a Better Environment Conservation Law Foundation 

Death Penalty Clinic at Boalt Hall 

Defenders of Wildlife 

The Earl Carl Institute at the Thurgood Marshall School of Law 

Earthjustice 

East Bay Worker’s Rights Clinic 

Environmental Law Institute 

Environmental Defense 

Environmental Human Rights 

Environmental Law Alliance Worldwide 

Equal Justice Initiative 

Farmworker Justice 

Florida Immigrant Advocacy Center 

Gay Men’s Health Crisis (Immigration Unit) 

Human Rights First 

Human Rights Law Society 

Human Rights Watch 

Immigrant and Refugee Appellate Center 

Immigrant Law Center of Minnesota 

Immigrant Rights Coalition Refugee and Asylum Committee 

Immigration Equality 

Immigration Legal Resource Center 

Innocence Project 

International Union for the Conservation of Nature 

Law School Civil and Human Rights Clinics and Organizations 

Law School Environmental Law Clinics and Societies 

Law School Immigration Clinics 

Law School Legal Aid Clinics

Lawyer’s Committee for Civil Rights 

Lawyers for Clean Water 

107 
Lawyers Without Borders 

Legal Aid Organizations 

Maryland Latino Coalition for Justice 

Midwest Immigrant and Human Rights Center 

Migrant Legal Action Program 

Minnesota Advocates for Human Rights 

Minnesota Center for Environmental Advocacy 

Minnesota Justice Foundation 

National Environmental Trust 

National Law Center on Homelessness and Poverty 

National Wildlife Federation 

Natural Resources Defense Council 

Nature Conservancy 

Northwest Environmental Defense Center 

Northwest Immigrants Rights Project 

NOW Legal Defense and Education Fund 

Oceana 

OUTLaw 

Pittsburgh Refugee and Immigrant Assistance Center 

Planned Parenthood Federation of America, Inc. 

Police Accountability Project 

Political Asylum Project of Austin 

PRAXIS: An Institute for Social Justice 

Public Advocates, Inc. 

Public Defender Service 

Save the Dunes Conservation Fund 

Sierra Club 

Southern Center for Human Rights 

Southern Environmental Law Center 

Texas Civil Rights Project 

UPenn Reproductive Rights Clinic 

Upper Chatahoochee Riverkeeper 

Washington Lawyers Committee for Civil Rights and Urban Affairs 

Women’s Initiative for Self-Empowerment 

World Organization for Human Rights 

Youth Advocacy Project 

Conservative Organizations

Alliance Defense Fund 

Blackstone Legal Fellowship 

Christian Legal Society 

Edmund Burke Society 

Family Research Council 

Federalist Society 

Heritage Foundation 

108 
Hudson Institute 

Thomas More Society 

Thomas More Law Center 

Thomas More Scholar 

Washington Legal Foundation 

109 
2006 SLIP Organizations

Liberal Organizations

Academy on Human Rights and Humanitarian Law 

American Civil Liberties Union 

Alliance for Justice 

American Constitution Society 

Center for American Progress 

Center for Death Penalty Litigation 

Conservation Law Foundation 

Earthjustice 

Environmental Alliance World Wide 

Environmental Defense Fund 

Environmental Law Society 

Human Rights Campaign 

Human Rights Law Society 

Human Rights Watch 

Immigration Project 

Innocence Project 

International Human Rights Legal Clinic 

Legal Aid Justice Center- Immigration Clinic 

Lowenstein Human Rights Clinic 

NAACP Legal Defense Fund 

National Council of Women’s Organizations 

National Law Center on Homelessness and Poverty 

Natural Resources Defense Council 

Planned Parenthood 

Project Renewal, Inc. 

Public Justice Center 

Save Our Springs Alliance 

World Organization for Human Rights USA 

World Wildlife Fund 

Conservative Organizations

Alliance Defense Fund 

American Center for Law and Justice 

Christian Legal Society 

Federalist Society 

Heritage Foundation 

Liberty Legal Institute 

Thomas More Legal Society

110