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44–237 PDF 2008

S. HRG. 110–550 

POLITICIZED HIRING AT THE DEPARTMENT OF 

JUSTICE 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

JULY 30, 2008 

Serial No. J–110–113 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

STEPHANIE A. MIDDLETON, Republican Staff Director 

NICHOLAS A. ROSSI, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of Delaware ............. 5 

Leahy, Hon.Patrick J., a U.S. Senator from the State of Vermont ..................... 1 

prepared statement .......................................................................................... 43 

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 3 

WITNESS 

Fine, Glenn A., Inspector General, Department of Justice, Washington, D.C. .. 6 

QUESTIONS AND ANSWERS 

Responses of Glenn A. Fine to questions submitted by Senators Kennedy 

and Coburn ........................................................................................................... 26 

SUBMISSIONS FOR THE RECORD 

Fine, Glenn A., Inspector General, Department of Justice, Washington, D.C., 

statement .............................................................................................................. 34 

New York Times, July 29, 2008, editorial ............................................................. 46 

San Francisco Chronicle, July 29, 2008, editorial ................................................. 47 

USA TODAY, editorial ............................................................................................ 48 

Washington Post, July 29, 2008, editorial ............................................................. 49 

(1) 

POLITICIZED HIRING AT THE DEPARTMENT 

OF JUSTICE 

WEDNESDAY, JULY 30, 2008 

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at a.m., in room SD–226, 

Dirksen Senate Office Building, Hon. Patrick J. Leahy, Chairman 

of the Committee, presiding. 

Present: Senators Leahy, Biden, Schumer, Cardin, Whitehouse, 

Specter, and Coburn. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning. Today, the Committee welcomes Glenn Fine, the Inspector General of the Department of Justice, to discuss the findings of his office’s investigation into the hiring of attorneys for key career positions throughout the Department. 

The report the Inspector General released this week, along with 

a previous report released last month, shines much needed light on 

hiring decisions at the Department. For years, those decisions have 

been shrouded in a shadow cast by the Bush White House. The reports confirm what I and others have suspected all along—that 

senior officials within the Department of Justice used illegal political and ideological loyalty tests in making hiring decisions for career positions that, by law and the Department’s own rules—law 

and the Department’s own rules—are supposed to be nonpartisan. 

They broke the law. They did so as political partisans and cronies. 

And I am convinced that the U.S. Attorney firings and the coverup and the widespread illegal hiring practices within the Justice 

Department that have been revealed represent the most serious 

threat to the effectiveness, the professionalism, and the independence of the Department since Watergate. 

We learned through the course of our investigation of the firings 

of the U.S. Attorneys that only ‘‘loyal Bushies’’ would ultimately 

keep their jobs, to use their words. We had people being asked not 

how you can serve your country or how you can serve the Department of Justice, but how do you serve George W. Bush. You are 

there to serve the country, not any individual President, Republican or Democratic. 

Last month we saw that political functionaries under Mr. 

Ashcroft and Mr. Gonzales corrupted the honors program for the 

best and the brightest coming out of law schools—the honors proVerDate Aug 31 2005 12:15 Oct 27, 2008 Jkt 043000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\44237.TXT SJUD1 PsN: CMORC
2 

gram being something where we looked to recruit career people in 

the Department of Justice by picking only the very, very best, irrespective of their political background. But here they turned it into 

something that no matter how talented you are, you could only 

apply if you were a demonstrably loyal conservative Republican. 

Now we see in the reports of the Inspector General that our worst 

fears are also realized in the Department’s hiring and assignment 

practices for nonpartisan attorney positions, those of immigration 

judges and prosecutors. Why would you be seeking a partisan immigration judge or prosecutor? The law is the law. It does not make 

any difference which party you belong to. We actually have laws 

against doing such a thing, and those laws were broken. 

As a former prosecutor, I would hope that the Department of 

Justice would take its responsibilities seriously now and hold people accountable. Only then will the Department have moved forward to help ensure that this never happens again. Something 

should be done now. We do not know who the next President is 

going to be, but no matter who it is, we should establish the criteria so this never happens again. 

But I have yet to see any such response from the current leadership of the Department, and one of my questions to Mr. Fine today 

is whether the Inspector General has made referrals to the prosecuting arms of the Department for further investigations and possible prosecutions. 

The Inspector General’s reports confirm that senior officials who 

report to the office holders at the highest levels at the Justice Department and who also interacted with the White House sacrificed 

the independence of law enforcement and the rule of law in allegiance to this current administration. The key question should be 

whether the applicant is qualified for the job. However—and I have 

referred to this already—according to the report, the key question 

from Monica Goodling, the Department’s White House Liaison, and 

others, was: ‘‘What is it about George Bush that makes you want 

to serve him?’’ It would be a lot better as, ‘‘What is it about the 

cause of justice that makes you want to serve the cause of justice? ’’ 

Federal prosecutors and immigration judges take an oath of office, but that oath is to the Constitution, not to an individual person. They are to serve justice and the American people. This administration has had it wrong from the outset, and all of us, but 

especially our institutions of Government, have been the victims. 

There are chilling examples in this week’s report that show the 

danger of putting loyalty to a certain office holder above the duty 

to enforce the law. The report documents one incident where ‘‘[A]n 

experienced career terrorism prosecutor was rejected by Goodling 

for a detail to [the] Executive Office of U.S. Attorneys (EOUSA) to 

work on counterterrorism issues because of his wife’s political affiliations.’’ So we lose a very, very experienced person because his wife 

dared to have a political affiliation of her own. And so the Executive Office of U.S. Attorneys ‘‘had to select a much more junior attorney who lacked any experience in counterterrorism issues and 

who [those] officials believed was not qualified for the position.’’ It 

is almost as if we have hit the replay button on the tragic aftermath of Katrina, where cronyism was valued over competence. 

3 

According to the report, the system put in place by the chief of 

staff of then-Attorney General Alberto Gonzales for selecting immigration judges, appointments that by law are non-political, was the 

most ‘‘systemic use of political or ideological affiliations in screening candidates for career positions [that] occurred.’’ The Department’s practice not only subverted the law and placed political loyalty above fairness, it caused serious delays in filling immigration 

judge positions just as the workload and importance of those judges 

was increasing. The report reveals that the ‘‘principal source’’ for 

politically vetted candidates considered for these important positions was the White House—demonstrating the extent of the political reach of the White House into the Department’s career ranks, 

an unprecedented activity. 

There can be no remaining question that this administration encouraged politics to infect the Department and law enforcement. 

The question, of course, that I have is: What will Attorney General 

Mukasey and the President do about it to provide accountability? 

In our oversight hearing earlier this month, Attorney General 

Mukasey essentially dismissed the findings of last month’s report 

as the actions of just a few bad apples. This reminds me of the administration’s ongoing attempt to place the blame for the actions 

at Abu Ghraib solely on the shoulders of a few soldiers there rather 

than see those excesses as a consequence of the policies and practices put into place by the President, the Department of Justice, 

and the Pentagon. 

This week’s report, like the one that preceded it, makes clear 

that the problems of injecting politics into the hiring decisions of 

the Department are rooted deeper than just the actions of a handful of individuals. 

Even with blanket claims of privilege and immunity from the 

White House in their effort to try to cover up the truth, we continue to learn about the unprecedented and improper reach of politics into the Department’s professional ranks. There is only so 

much they can do to cover up. The truth does come out. And by 

infusing politics into the hiring of career Assistant U.S. Attorney 

positions, senior career attorney positions, Main Justice detailees, 

young career attorneys, and immigration judges, this administration and its operatives have done serious damage to the rule of law. 

The American people look forward to a serious response from the 

current leadership of the Department of Justice. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Senator Specter? 

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Senator SPECTER. Thank you, Mr. Chairman. 

At the outset, Mr. Fine, I thank you for your work on these very 

important matters. The independence of an Inspector General is 

demonstrated by the work you have done here and the last appearance before this Committee on detainees and underscores the importance of Inspectors General in so many of the departments to 

bring an independent look at the issue, to call it as it is and let 

the chips fall where they may. And there is no doubt that when we 

4 

are dealing with positions like immigration judges or the Court of 

Immigration Appeals, political considerations ought not to be a factor. 

The investigation so far has dealt with people who are not at the 

top of the ladder in the Department of Justice, and it raises a question in my mind as to whether others were involved. You have 

Monica Goodling and you have Kyle Sampson and you have John 

Nowacki, all of whom occupied important positions, but not the key 

positions. 

When you were before this Committee a few weeks ago on the 

issue of detainees, I expressed my concern about the thoroughness 

of your investigation on questioning the Director of the FBI, Robert 

Mueller, from the point of view of the FBI disagreeing with the 

CIA interrogation tactics, which was a good sign of independence. 

But what further did Director Mueller do to try to stop it? What 

effort did he make to take it even to the President? And I believe 

that it is very important that the investigations go to the very top 

if that is where the facts lead, and that is a subject which I will 

want to hear you on when the time comes for questions and answers. 

The issue arises as to whether there is potential for criminal 

prosecution. And when this story broke in the media, of course, the 

media wants to know instantly with the telephone calls do you 

favor criminal prosecutions. Well, my response was I would like to 

know what the facts are first. That is not a very satisfactory answer. It does not make the early editions. 

I have read conflicting reports on whether violations of the civil 

service laws give rise to a criminal prosecution. Apparently, they 

do not. That is something we would have to check. Or there is a 

question of false statements. And I note some Members of Congress 

have already condemned some of these individuals on those 

grounds. We have to take a very close look at what the facts are 

to see what is going on. 

I am glad to see Attorney General Mukasey acting to change 

these practices. I would like to see, frankly, a very forceful statement out of the Department of Justice as to what they intend to 

do and what they think about it in some detail. They have the 

prosecution responsibility. You do not. I would like to see the Department of Justice speak emphatically on this subject. So there is 

a great deal we have to look at here. 

One aspect of the report which I think is highly significant are 

the compliments which went to Acting Attorney General Peter 

Keisler. Keisler is quoted as saying, ‘‘You should have known that 

there’s a lot of people who believe that these selections are either 

irrational or so irrational that they are motivated by politics, and 

that is a problem, as you know.’’ So here is a top Assistant Attorney General who was Acting Attorney General speaking out 

against his party. Kind of a healthy thing in Washington when 

that is done on occasion. It is not done often enough where the 

facts warrant it. 

And then the report came to this conclusion: ‘‘Acting Attorney 

General 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 

5 

that at the appropriate time he would like to have a meeting with 

senior Department officials to discuss the next year’s hiring process 

to ensure that the problems they encountered in 2006 would not be 

repeated.’’ 

Well, I read that because the nomination of Peter Keisler is 

pending before this Committee, and he has waited a long time. And 

the question is qualification. And when you have this kind of independence exhibited by Mr. Keisler and recognized by the Inspector 

General in what is otherwise a very lurid situation, I think that 

is something special. It reminds me of an instant long ago when 

there was a prosecuting attorney in New Jersey named Brendan 

Byrne. Senator Biden will remember this. Senator Leahy will remember this. So sometimes they comment about the aging Senators. Of course, it is not true, but it is good to have a little corporate memory. 

But Brendan Byrne’s name was picked up on an FBI tape, and 

the mob was talking about Brendan Byrne. And they say, ‘‘The 

problem with Byrne is he is honest,’’ which was something rare for 

somebody in North Jersey at that time. They say business got so 

bad, the Mafia had to write off several judges in North Jersey. I 

was DA at the time, Brendan Byrne was the district attorney. 

Biden had already gotten to the Senate at the age of 19 or some 

such age. 

[Laughter.] 

Senator SPECTER. But that established Brendan Byrne’s reputation. Leahy and I— 

Chairman LEAHY. If you would yield, I served on the board of the 

National DA Association with Brendan Byrne. 

Senator SPECTER. Well, you and I are not old timers, Patrick, but 

we have some corporate—Joe Biden was a public defender. He 

didn’t get to be a prosecuting attorney. But I mention Brendan 

Byrne because his reputation was established. They named a big 

basketball arena after Brendan Byrne. And Keisler is almost in 

Byrne’s category, maybe enough to attract the attention of the 

Chairman of the Judiciary Committee. 

Well, I have talked at some length. Regrettably, I cannot stay for 

this entire proceeding because we are on the floor with the reporter 

shield bill, which is my bill, and it is coming up for a vote, and I 

am to speak on it shortly. But I will be following your testimony 

very closely on this very important subject, Mr. Fine. 

Thank you. 

Chairman LEAHY. Thank you, and we will start with Glenn Fine. 

I know that Senator Biden wanted to say why he has to leave. 

STATEMENT OF HON. JOSEPH R. BIDEN, JR., A U.S. SENATOR 

FROM THE STATE OF DELAWARE 

Senator BIDEN. Mr. Chairman, thank you, first, for holding the 

hearing— 

Chairman LEAHY. It is not that we do not love you that they are 

all leaving, but go ahead. 

Senator BIDEN. Well, this thing about corporate memory, I have 

observed that corporate memory, that assumes you have a wealth 

of experience and memories that go back. The problem is the older 

6 

you get, the harder it is to recall them. But, Mr. Chairman, thank 

you for the hearing. 

Mr. Fine, I just wanted to explain that after your testimony I 

will be leaving. I chair another Committee, and the Prime Minister 

of Pakistan is our witness—not our witness, our guest. And so that 

is why I will be leaving. 

I would associate myself with the remarks of both my colleagues. 

Facts do matter. It is important. And the one central thing, if I do 

not get a chance to ask you questions—and maybe I can submit a 

few in writing—for me, in my experience with seven Presidents, it 

is not often that someone at Goodling and Sampson’s level are able 

to have this kind of latitude without someone above them instructing them. And I would very much like to know where this goes, if 

it goes anywhere, as the Senator from Pennsylvania indicated. 

I thank you. 

Chairman LEAHY. Thank you very much, and we will find out. 

I would note that Glenn Fine was confirmed by the U.S. Senate 

as the Inspector General for the Department of Justice on December 15, 2000. He has worked with the Department of Justice Office 

of the Inspector General, OIG, since January 1995. Initially, he 

was Special Counsel to the Inspector General. Before joining the 

OIG, Mr. Fine was an attorney specializing in labor and employment law at a law firm in Washington. Prior to that, he served as 

an Assistant U.S. Attorney in the Washington, D.C., U.S. Attorney’s Office. He graduated magna cum laude from Harvard College 

in 1979 with an A.B. degree in economics. And so people will not 

think he was solely studying, he was co-captain of the varsity basketball team and was drafted by the San Antonio Spurs of the 

NBA. I see a smile. I think there are probably days he wishes— 

Mr. Fine was a Rhodes Scholar. He earned his B.A. and his M.A. 

degrees from Oxford and received his law degree magna cum laude 

from Harvard Law School in 1985. 

Mr. Fine, please go ahead, sir. 

Senator BIDEN. Underachiever. 

[Laughter.] 

STATEMENT OF GLENN A. FINE, INSPECTOR GENERAL, 

DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Mr. FINE. Thank you, Mr. Chairman, Senator Specter, members 

of the Committee. I appreciate your invitation to testify at this 

hearing about two reports recently issued by the Office of the Inspector General and the Office of Professional Responsibility on allegations relating to politicized hiring at the Justice Department. 

The first joint report, issued on June 24th, examined hiring practices in the Department’s Honors Program and Summer Law Intern Program. The second report, issued on Monday, examined allegations that Monica Goodling and other staff in the Attorney General’s office inappropriately considered political affiliations when 

hiring for career Department positions. 

With regard to the first report, the Department’s Honors Program is the exclusive means by which the Department hires recent 

law school graduates. These are career positions, and, therefore, 

Department policy and Federal civil service law prohibit discrimination on the basis of political affiliations. However, the evidence 

7 

in our investigation showed that a Screening Committee established by the Department in 2002 deselected for interviews those 

candidates with Democratic Party and liberal affiliations apparent 

on their applications at a significantly higher rate than applicants 

with Republican Party, conservative, or neutral affiliations. This 

pattern continued even when we compared a subset of academically 

highly qualified candidates. 

From 2003 to 2005, the Screening Committees made few 

deselections, and these decisions could reasonably be explained on 

the basis of candidates’ academic qualifications. 

However, we found that two members of the 2006 Screening 

Committee—Esther Slater McDonald and Michael Elston—inappropriately considered political or ideological affiliations in deselecting 

many candidates. 

As just one example—and many more are discussed in our report—McDonald and Elston deselected an Honors Program candidate who was first in his class at Georgetown Law School, had 

clerked for a judge on the U.S. District Court, and was clerking for 

a judge on the Second Circuit Court of Appeals. However, this candidate had also worked for a Democratic U.S. Senator and a human 

rights organization and was deselected. 

We concluded that McDonald’s and Elston’s actions constituted 

misconduct and violated Department policy and Federal civil service law. 

Our second report, issued on Monday, described the results of 

our investigation into actions by Monica Goodling and other staff 

in the Attorney General’s office. We concluded that Goodling regularly considered political affiliations in screening candidates for career positions at the Department, which also was misconduct and 

violated Department policy and Federal civil service law. 

For example, in one instance the interim U.S. Attorney in the 

District of Columbia sought approval from Goodling to hire an Assistant United States Attorney for a vacant position. Goodling responded that the candidate gave her pause because, judging from 

his resume, he appeared to be a ‘‘liberal Democrat.’’ Goodling also 

said she was reluctant to approve the request because she expected 

that Republican congressional staff might be interested in applying 

for AUSA positions in Washington. Only after the U.S. Attorney 

objected was he allowed to hire the AUSA. 

In addition, Goodling often used political affiliations to select or 

reject career attorney candidates for temporary details to Department offices. This was particularly damaging to the Department 

because it resulted in high-quality candidates for important details 

being rejected in favor of less qualified candidates. Perhaps the 

most troubling example, mentioned by Senator Leahy, an experienced career terrorism prosecutor was rejected by Goodling for a 

detail to work on counterterrorism issues in the Executive Office 

for U.S. Attorneys because of his wife’s political affiliation. Instead, 

EOUSA officials had to select a more junior attorney who lacked 

experience with counterterrorism issues and who the EOUSA officials believed was not qualified for the position. 

The most systematic use of improper political or ideological affiliations in screening candidates for career positions occurred in the 

selection of immigration judges. Under a new process implemented 

8 

by Kyle Sampson in 2004, immigration judge candidates were 

treated as political appointees. Goodling used a variety of techniques for determining candidates’ political affiliations, such as researching their political contributions and voter registration 

records and using an Internet search string that contained political 

terms. 

Not only did this process violate the civil service law and Department policy, it also caused significant delays in appointing immigration judges. These delays increased the burden on the immigration courts, which already were experiencing an increased workload 

and a high vacancy rate. 

Both prior to and since issuance of our two reports on politicized 

hiring, the Department has taken steps to attempt to prevent the 

serious problems raised by these actions from occurring again. Attorney General Mukasey has agreed to implement all the recommendations of our reports. 

Finally, I want to note that the OIG and OPR are now jointly 

investigating allegations related to the removal of several United 

States Attorneys as well as allegations that Bradley Schlozman 

and others used political affiliations in hiring and personnel decisions in the Department’s Civil Rights Division. Because these investigations are ongoing, I should not discuss them. However, I 

want to assure the Committee that the OIG and OPR are working 

very hard on these investigations and will issue our reports as expeditiously as possible when those investigations are complete. 

In conclusion, I believe that the Department must ensure that 

the serious problems and misconduct we found in our two reports 

about politicized hiring for career positions in the Department do 

not recur. Implementation of our recommendations and vigilance 

by current and future Department leaders can help prevent a recurrence of the serious misconduct and violations of Federal civil 

service law and Department policy that are described throughout 

our reports. 

That concludes my prepared statement, and I would be pleased 

to answer any questions. 

[The prepared statement of Mr. Fine appears as a submission for 

the record.] 

Chairman Leahy. Thank you very much, Mr. Fine. 

According to your report, Monica Goodling, the Department’s 

White House Liaison and senior counsel to the Attorney General, 

had a number of techniques to screen hires for political and ideological loyalty, especially loyalty to the President. I remember we 

brought this out at a hearing whether she would ask questions of 

applicants such as, What is it about George W. Bush that makes 

you want to serve him? That seems unusual because usually people 

ask, What is it about the U.S. Government that makes you want 

to serve in the United States Government? 

Kyle Sampson, then Chief of Staff to Attorney General Gonzales, 

put in place a system for screening and selecting immigration 

judges that were fellow Republican loyalists, the principal source of 

which was the White House positions. 

Now, in the course of our investigations into these matters and 

the firing of U.S. Attorneys, and despite substantial evidence showing White House involvement in the firings and in the effort for a 

9 

politically motivated prosecutions, in response to congressional inquiries about these matters, the President has invoked a blanket 

and unsubstantiated claim of Executive privilege to avoid complying with our subpoenas, and to prevent Karl Rove and Harriet 

Miers from even appearing to testify here and in the House. 

Now, I take it you were not allowed to interview either Mr. Rove 

or Ms. Miers? 

Mr. FINE. We did not interview Mr. Rove or Ms. Miers in this 

investigation. As we discuss in the report, we were able to interview someone in the Office of Political Affairs at the Department 

who was involved with Goodling and Williams in selecting immigration judges. We did interview him. From the indications that we 

saw in both the e-mails to and from the Department and from the 

testimony of the Department, we did not see indications that it 

went higher to Mr. Rove or Ms. Miers. 

There is one instance where Mr. Rove was involved, and that is, 

he recommended an immigration judge for a vacant position in Chicago, and it was clear that he was pushing for this candidate. This 

candidate eventually was selected. 

Chairman LEAHY. The two reports you have issues so far conclude that a broad set of high-level Department officials were involved in illegal political and loyalty screening for hires, including 

the former Acting Associate Attorney General, former Chief of Staff 

to the Attorney General, the former White House Liaison, and senior counsel to the Attorney General, two other former White House 

Liaisons, the former counsel to the Associate Attorney General, the 

former Chief of Staff of the Deputy Attorney General, and the current Deputy Director of the Executive Office of U.S. Attorneys. 

Now, these officials, include a number of key officials at the Department, including Chiefs of Staff to the Attorney General and the 

number two official at the Department. In fact, the complaints that 

were raised were ignored. At an oversight hearing last month, Attorney General Mukasey characterized the firings in your first report in this way. He said, ‘‘I found that the IG report reflected that 

a few people currently employed by the Department, one of whom 

is longer in the job that he was in, had failed to respond with sufficient alacrity to the charges’’—I do not want to interrupt the conversation next to me here—‘‘failed to respond with sufficient alacrity to charge as politicization.’’ That is very different from saying 

they found a politicized Department. 

I wonder if you agree with his characterization of the conclusion 

in your report. Was this a problem in that there were just a few 

bad apples who failed to respond with sufficient alacrity or a more 

serious and systemic problem? 

Mr. FINE. I think this is a serious problem that had implications 

throughout the Department of Justice. The ones who committed 

the wrongdoing, we identify in the reports, both in our Honors Program report as well as in our report on Monica Goodling and others. It had a significant effect throughout the Department. I think 

one of the significant things was people not objecting, people not 

standing up. Senator Specter alluded to this. A few did but most 

did not, and I think that was one of the significant problems that 

we found in the report. 

10 

Another significant problem that I think is important to note is 

the lack of oversight of these people. These were inexperienced, 

junior people to some extent; they rose to high-level positions, and 

they were allowed to implement these actions and changes unchecked without adequate supervision, without adequate oversight, 

and it resulted in very serious damage to the Department of Justice. So I think it is a systemic, important issue that needs to be 

addressed. 

Chairman LEAHY. The fact that they rose to these high positions, 

I mean, these were positions where normally you have a great deal 

of experience and institutional knowledge before you are put in 

these positions. Is that correct? 

Mr. FINE. Sometimes they do, but I think in this case there were 

a significant number of ones who did not have experience for the 

job that they were put in. I will give you an example. 

In the Honors Program, a very important program in the Department of Justice, and the screening of candidates for that is very important, many of the people who apply for this Honors Program remain with the Department for much of their career. It is a career 

position. It is the backbone of the Department of Justice. So they 

set up a Screening Committee, and in 2006, they assigned Esther 

Slater McDonald to be on the Screening Committee. And she had 

been in the Department for less than a month. She was a junior 

attorney. She was not even given instructions on what to look for 

or overseen in her actions. I think that is negligent. I think that 

is not appropriate, and that on these important programs, there 

needs to be better oversight and supervision. It did not happen. 

Chairman LEAHY. That is interesting, because I know when I 

was recruited by the then-Attorney General when I was a law student, he made it very, very clear that politics would not be allowed 

in these professional positions and that the White House could not 

interfere with them, could not interfere with the prosecutors, could 

not interfere with these decisions, and that was Attorney General 

Robert Kennedy, who, if there was anybody who might have close 

ties to the White House, he would. 

Your report documents many examples of the use of code words 

by Ms. Goodling and others as a stand-in for political loyalty or ideology to eliminate candidates. Ruth Marcus noted in the Washington Post this morning the term ‘‘good American’’ was understood 

to be a stand-in for ‘‘Republican.’’ It was used, for example, by the 

then-interim U.S. Attorney Brad Schlozman to persuade Ms. Goodling to approve his choices for career prosecutor positions. Perhaps 

the most egregious example, it was used by Ms. Goodling and others in Internet searches designed to obtain political and ideological 

affiliations. Here is one example of a Lexis-Nexis search used by 

Jane Williams, Ms. Goodling’s predecessor as liaison to the Bush 

White House. 

[Indicates chart showing search terms.] 

In a Department position like that, they would be looking for this 

person to have experience. If they are going to be a prosecutor, 

have they had experience in trying cases and making decisions? Do 

they have a law enforcement background? This seems to be anything but, or am I reading too much into this. 

11 

Mr. FINE. No, I do not think you are reading too much into it. 

The problem was screening for political considerations is not improper for political jobs. It is improper when it is used for career 

jobs, and that is when it was used here. And they did use code 

words, and you gave the example of Bradley Schlozman. He did 

talk about trying to get approval to hire AUSAs when he was the 

interim U.S. Attorney in Missouri, called them ‘‘rock solid Americans,’’ ‘‘hugely positive legacy for this administration.’’ He described 

the candidates in terms of their conservative credentials and involvement in the Bush-Cheney campaign, ‘‘hard core’’ in the most 

positive sense of the word. And Goodling gave him permission to 

hire ‘‘one more good American.’’ That has nothing to do with your 

qualifications to be an Assistant United States Attorney. 

Another example, there was an official who wanted to apply for 

a detail in the Office of Legal Policy. She was asked and was told 

that the Office of Legal Policy provides advice to the Attorney General, and he expected to receive advice consistent with his policies 

and beliefs. This candidate scratched his head and said, ‘‘That is 

not my understanding.’’ He said it to himself. ‘‘My understanding 

is that it should be consistent with the law.’’ And that is the troubling aspect of this. That is what should be considered: their qualifications, their academic qualifications, their background for career 

positions. And we found instances where—many instances where it 

was not. It is very troubling and very damaging. 

Chairman LEAHY. Thank you. 

Senator Specter? 

Senator SPECTER. Thank you, Mr. Chairman. 

Mr. Fine, did the conduct of Monica Goodling or Kyle Sampson 

or John Nowacki in politicizing the appointments of people like immigration judges or members of the Board of Immigration Appeals, 

did that constitute a violation of criminal law? 

Mr. FINE. I do not believe it did, Senator Specter. I believe it violated Department policy and Federal civil service law, which is civil 

law, but not criminal law. It is not a criminal statute. 

Senator SPECTER. Was there anything in your investigation to 

suggest that there is a basis for criminal prosecutions for making 

false officials statements? 

Mr. FINE. We looked at that carefully, and in our judgment and 

the judgment of prosecutors, experienced prosecutors who have 

worked on this case for us, we did not think that there was a sufficient basis for a criminal prosecution for false statements for anyone. We also noted we do not think that Monica Goodling made 

false statements to Congress. But we also know that she has immunity and sort of use of any testimony or the fruits of any testimony would be prohibited. 

But having said that, I will say that we do not believe that the 

conduct that we found in our report constituted a criminal violation. It was a violation of civil law and Department policy. 

Senator SPECTER. Was former Attorney General Gonzales questioned on this matter? 

Mr. FINE. Yes, he was. 

Senator SPECTER. And what did he say? 

Mr. FINE. He said he was not aware of what was going on. He 

said he did not know Goodling used political factors when assessing 

12 

candidates for career positions, did not know the search terms that 

Goodling used, did not know even that Goodling’s portfolio included 

hiring for IJs, and basically said he did not have knowledge of the 

role the Office of the Attorney General played in identifying candidates and was not involved in the selection of these immigration 

judges. He said the first time he became aware of problems or complaints in the Honors Program was in April 2007 when there was 

an anonymous letter provided to Congress in public, and when he 

heard about that, he told the Deputy Attorney General to fix it. 

That was what he said. 

Senator SPECTER. Were Goodling, Sampson, and Nowacki questioned as to former Attorney General Gonzales’ participation in an 

of these matters? 

Mr. FINE. Yes. 

Senator SPECTER. Attorney General Gonzales denied—I see you 

turning back. Do you have a modification to that answer? 

Mr. FINE. Yes. Goodling was not questioned by us. She refused 

to be interviewed by us. She was questioned by the House Judiciary Committee. 

Senator SPECTER. During the Judiciary Committee hearings on 

the U.S. Analyst issue on replacement, Attorney General Gonzales 

at that time denied knowing anything about that, and his testimony was contradicted by a number of people. But you are saying 

that did not happen here. 

Mr. FINE. Exactly, saying it did not happen here. We are looking 

at the removal of U.S. Attorneys, as I mentioned in my statement. 

We are looking at that very carefully and will view all the issues 

in that one. 

Senator SPECTER. And what White House officials, if any, were 

questioned on this issue of politicization of appointments? 

Mr. FINE. Scott Jennings, who was in the Office of Political Affairs at the White House and who had the contact with Monica 

Goodling and her predecessors who were the White House Liaisons 

with the Department of Justice and provided candidates to the Department for these positions, particularly for immigration judges. 

Senator SPECTER. And why were no others at the White House 

questioned? 

Mr. FINE. From the evidence that we had, both e-mails, discussions, we did not see that the others were involved in this process. 

And we questioned the person who was involved. 

Senator SPECTER. What steps have been taken by the Department of Justice, to your knowledge, at the present time to avoid a 

recurrence of this kind of a problem? 

Mr. FINE. They have taken steps both when the issue arose back 

in April 2007 and also in response to our report to prevent a recurrence of this. For example, they have put back in the Executive Office for U.S. Attorneys the decisions on waiver applications by interim U.S. Attorneys who want to hire AUSAs. It is not the Office 

of the Attorney General who decides it anymore. It is EOUSA officials, and they only decide it based on financial considerations. 

In addition, immigration judges are screened by a process that 

is in the Executive Office for Immigration Review by the officials 

there, the career officials there. They are rated. They are interVerDate Aug 31 2005 12:15 Oct 27, 2008 Jkt 043000 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\44237.TXT SJUD1 PsN: CMORC
13 

viewed. And it is not within the political people in the Department 

anymore. 

In response to the Honors Program, they have ensured that the 

Screening Committees are done by career officials. They are done 

at the Office of Attorney Resource Management. If there are any 

deselections, it is based upon academics. And if there is anything 

else, there has to be listed reasons why it happened. 

In addition, the screening officials have to certify that they are 

only going to use merit-based principles, not political considerations, that they understand those principles and will use those 

principles. They have changed the Department of Justice human 

resources order to make that 100 percent clear, and they are considering training for officials involved— 

Senator SPECTER. Mr. Fine, I do not have much time left, and I 

want to cover one other subject. Elaborate upon the activities and 

conduct of Mr. Peter Keisler with respect to this issue. 

Mr. FINE. As you pointed out, we credited what he did in this 

case. He received complaints from people who worked for him in 

the Civil Division about deselections that were completely irrational. These were highly qualified candidates who were deselected. 

He went to the person involved with the Screening Committee, 

Mike Elston, and protested about that. He appealed it. In some 

cases, he was— 

Senator SPECTER. He appealed it to whom? 

Mr. FINE. To Elston. He appealed the decision that was made to 

deselect a candidate for the Civil Division who was eminently 

qualified. 

Senator SPECTER. When you say he appealed it, whom did he appeal it to? 

Mr. FINE. Michael Elston, who was the Chair of the Screening 

Committee. He appealed the deselection. 

Senator SPECTER. And what was the result of that effort by Mr. 

Keisler? 

Mr. FINE. I think in that case the appeal was successful, and 

they were allowed to interview the candidate. He also discussed 

holding a meeting to discuss these issues, and he raised objections 

to it. I believe that what Peter Keisler did was appropriate and 

laudatory and that he should be praised. And I wish others had 

dome similar things. There were some who did it—Eileen O’Connor 

from the Tax Division, career attorneys in the Tax Division and the 

Civil Division. But other did not, and I think that was part of the 

problem as well. Peter Keisler did and should be credited for that. 

Senator SPECTER. Well, praise is fine, but how about promoted? 

Mr. FINE. That is not my ability to promote. I try to provide the 

facts. 

Senator SPECTER. You are not going to comment on his qualifications to be a circuit judge in the District of Columbia? 

Mr. FINE. No. I really do not think I should do that. I can comment that every dealing I have had with Peter Keisler has been 

professional. I have been tremendously impressed with him. I think 

he is a straight shooter. 

Senator SPECTER. Well, Mr. Fine, that is close enough, as the expression goes, for Government work. 

[Laughter.] 

14 

Mr. FINE. Those are the facts, and I try and bring them to you, 

Senator. 

Senator SPECTER. Well, I appreciate that, and I appreciate your 

candor, Mr. Fine, and I have pursued that a little more so because 

I have interviewed him, I have talked to him, gone over his record 

with a fine-toothed comb, and hope yet that before the 110th Congress ends we can break the judicial impasse and confirm people 

like Peter Keisler and others. And I think your report, since you 

are noted for objectivity and very, very factual as to what he did 

here, is a strong recommendation inferentially of what is shown in 

the facts. That is the best kind of a recommendation. Thank you, 

Mr. Fine. 

Thank you, Mr. Chairman. 

Senator CARDIN. [Presiding.] Senator Leahy and I believe Senator Specter need to be on the floor because of legislation now of 

this Committee that is being considered on the floor. With that, I 

would recognize Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Chairman Cardin. 

First of all, thank you, Mr. Fine, for the work that you have 

done. I appreciate it very much, but I have to say it is creepy to 

read your report and see what was done. I served in the Department of Justice for 4 years, and my sense was that no matter how 

ardent the politics of any administration, they knew there were 

certain things you just do not do; there were certain institutions 

you just do not ruin. And the Department of Justice was obviously 

one of them, probably the most significant one. And so the fact that 

this happened really shows that when it comes to politics, this is 

an administration that has no gag reflex. And it was brought home 

particularly in their description of—I mean, if there is one area 

where the Bush administration would like to identify itself as being 

involved and interested and effective, it is counterterrorism. And 

yet where a truly experienced, highly regarded counterterrorism 

prosecutor is up for a position, that person got knocked out for 

somebody who had essentially no qualification whatsoever but the 

political qualification. And I cannot help but remark on the priorities that that choice reflects. 

The concern I have is that for all that was done in the past— 

and you have done a wonderful job of shedding some light on it— 

the present Attorney General’s position appears to be, We will sin 

no more, and I believe that he has kept his word on that. The problem is that there is a residue from what was done before. As you 

said, it was serious; it was significant; it was systemic. And the 

idea that it had no effect but lingers in the Department to me is 

just not realistic. And I see in particular there are a number of people who were hired into the Department, who are presumably still 

there, hired through a civil service system that was corrupted in 

this case. There were immigration judges hired, I believe, as you 

note, several instances in which they were hired without even 

interviews or without even a reference to the Executive Office of 

Immigration Review. We count more than 20 judges appointed 

under this process, some there was a little bit more screening, but 

some it appears who have just been assigned out by the politicos. 

Can you guarantee us that those people are qualified? And setting that aside, is that really the correct standard, or should there 

15 

be some consequence for folks who come through what purports to 

be a civil service process but is truly a bogus one, and now hold 

a position that grants them civil service protection that they frankly do not deserve by virtue of the discrepancies from a proper process by which they were hired? 

Mr. FINE. Simply said, Senator Whitehouse, can I guarantee that 

all are qualified immigration judges? No, I cannot. I do know that 

some of them after they were hired, a few—a very few—did not 

survive the probationary period and are not there anymore. I also 

know that some, according to the Executive Office for Immigration 

Review, are doing well and have been good judges. 

I think it is a concern. That is the harm of this process because 

they were not required to compete against all the other qualified 

candidates who did not get an opportunity to do it. The Department has changed the process and is now hiring according to what 

I believe is an appropriate process. 

You are right, there were approximately 20 to 40 or so immigration judges identified by the process. Not all of them were selected 

and not all of them are still there, but it is a small number. There 

are about 230 or so immigration judges in total. So while that is 

not solace for how the process worked, it is not an overwhelming 

majority of the immigration judges who obtained their positions 

through this flawed process. 

You are right, they do have civil service protections, and it would 

be difficult, if not impossible, to look to see ex post facto are they 

qualified now. I think the important thing is for the officials in the 

Executive Office for Immigration Review to manage the program 

appropriately, make sure that people are doing the right thing. And 

if they are not and are not able to be immigration judges, they 

ought to take action. 

Senator WHITEHOUSE. What is the consequence—you have indicated that there is no criminal prosecution that is available. Your 

report points out that it was a violation of Federal law to do this. 

I do not read in your report that there is any referral of any kind 

that you suggest for any legal action. It looks like they got away 

with it scot free and that the so-called loyal Bushies that they 

stuffed into these positions would also have gotten away with it 

and will be there essentially indefinitely protected by civil service 

protections that they do not deserve? 

Mr. FINE. Well, Senator Whitehouse, I do not think they got 

away with it. I do think, first, their actions were exposed and condemned. Two, the ones—at least one who was with the Department 

should be considered and I believe will be considered for appropriate disciplinary action. The ones who are no longer with the Department should never get a job with the Department or, in my 

view, any other Federal agency based upon the conduct listed, and 

I hope—and they should consider this action. And there are also 

potential bar issues for the attorneys who have committed misconduct. 

And so I do not believe that they got away with it, and I believe 

that both our report and the actions of this Committee and potential ramifications belie that. 

Senator WHITEHOUSE. Well, your report was certainly very important, and whatever consequences do ensue, I very much appreVerDate Aug 31 2005 12:15 Oct 27, 2008 Jkt 043000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\44237.TXT SJUD1 PsN: CMORC
16 

ciate that you have done it, and the thoughtful way in which it was 

done. I cannot resist in my last 20 seconds to just observe that you 

are not involved in the investigation into the Office of Legal Counsel. That is an OPR investigation. Is that correct? 

Mr. FINE. Which one are you talking about? Could you amplify 

that? 

Senator WHITEHOUSE. I am aware that there is an OPR investigation into the Office of Legal Counsel with respect to whether 

the opinions that were prepared by the Office of Legal Counsel, I 

think, at the tail end of the process not that different from what 

took place here, heavily politicized in which standards were 

knocked over in order to get the right political answer, and whether those opinions met basic standards of legal research, legal propriety, and so forth. Are you in any respect also looking into anything at the Office of Legal Counsel, or is that solely an OPR investigation? 

Mr. FINE. The investigation that you describe is an Office of Professional Responsibility investigation. We do not have jurisdiction, 

unfortunately, over attorneys in the exercise of their legal duty. I 

have testified about that, and I am hopeful, I hope, that the Congress will do something about that, because I believe that the Inspector General’s office ought to have unlimited jurisdiction in the 

Department of Justice. We are independent, we are transparent, 

and there is no conflict of interest. And so I think that ought to 

be changed. 

Senator WHITEHOUSE. And you make your findings public. 

Mr. FINE. Exactly. We are transparent. We transparently provide 

to the Congress and others the basis of our findings, and we do 

that to the extent possible. And so I think that is important. I believe our office ought to have jurisdiction throughout the Department of Justice. 

Senator WHITEHOUSE. Well, hopefully we will have a chance to— 

Senator COBURN. Mr. Chairman, I have got a markup, and we 

usually run this Committee by the early bird rule. I was here before Senator Whitehouse, so I would like very much to be recognized so I can go to that markup. 

Senator WHITEHOUSE. Actually, nobody was here before me. 

Senator COBURN. Well, you were not here when I got here. 

Senator WHITEHOUSE. I was here when you got here. 

Senator COBURN. You were not sitting there. 

Senator WHITEHOUSE. I was sitting here when you got here. I 

have been here the whole time. I was here before the Chairman. 

I greeted the witness 10 minutes before the hearing. 

Senator COBURN. Either way, may I be recognized? 

Senator CARDIN. Of course. 

Senator WHITEHOUSE. I yield. 

Senator CARDIN. Senator Coburn. 

Senator COBURN. Thank you. 

Thank you for your report. Is there anything in your investigation here—what I am seeing is low-level politicization and incompetence above it. Is there anything to suggest that there was some 

grand scheme led by the Attorney General to politicize this in multiple ways? 

17 

Mr. FINE. Well, first I would not call it low level. These are high 

officials in the Department of Justice. These are the White House 

Liaison, the Chief of Staff— 

Senator COBURN. I will change my characterization. Is there anything—what I am trying to get at, is there anything in your investigation to say that the Attorney General had plans to politicize the 

Justice Department? 

Mr. FINE. In terms of these two reports, we did not find that the 

Attorney General knew about the improper political considerations. 

Senator COBURN. But you would agree that there was certainly 

incompetence at the level of management for this to be going on 

with an Attorney General not being aware of it? 

Mr. FINE. As I stated before, I agree that there should have 

been—there was inadequate supervision. They should have known 

what was going on here. They should have more closely supervised 

the junior people who were elevated to very high positions, and I 

think that was part of the problem. 

Senator COBURN. And you feel fairly comfortable that the things 

that needed to be changed within the Justice Department in light 

of your findings have, in fact, been changed in terms of procedure, 

monitoring, and supervision? 

Mr. FINE. We have made recommendations. The Attorney General has agreed to implement those recommendations. We will continue to monitor that. But he has agreed with the actions that we 

suggest should occur. It does require vigilance. It requires not simply changing a procedure, but making sure the procedures are followed, and I think that is important as well. 

Senator COBURN. It requires management. 

Mr. FINE. Yes, it does. 

Senator COBURN. Which was the reason that the last Attorney 

General left because of inept management. 

I have several other questions. I will submit them for the record 

because of the time constraints here. I appreciate the hard work 

and I appreciate the transparency that you bring. Inspector Generals are very important because they form the balance to stop— 

nobody wants politicization of these types of positions. And the fact 

that we have an IG and we have strengthened that, and we are 

going to continue to strengthen that, is very hopeful and it gives 

a great breath of fresh air to the American people that they can 

see transparently what is functioning well, as well as what is not 

functioning well within our Government, and I thank you. 

Mr. FINE. Thank you. 

Senator CARDIN. Mr. Fine, first let me thank you for your report. 

The Inspector General was created in order to provide an independent review of compliance with rules and laws. And as you 

point out, your findings are open to the public, and I think it is extremely important work, and I thank you very much for what you 

have done. 

You have indicated that steps have been taken by the Attorney 

General to correct the circumstance to make sure that political considerations are not involved in these decisions. I want to go a little 

bit further. You made six specific recommendations. Are you confident that all six are being implemented? 

18 

Mr. FINE. The steps are being taken to implement those recommendations, yes. 

Senator CARDIN. And you will be monitoring to make sure that 

they are, in fact, implemented? 

Mr. FINE. Yes. 

Senator CARDIN. Now, there are other areas in which the Department of Justice could be influenced on a political agenda where 

they should not in the hiring of career employees and the agenda 

of certain agencies that are supposed to operate without political 

interference. Does you report go into that at all? And has that come 

up in any of your discussions with the Department of Justice as to 

the extent of political involvement in the historic roles of the Department of Justice? 

Mr. FINE. Well, I know—perhaps one of the things you are referring to is the concerns about selective prosecution and prosecutions 

made on political decisions. 

Senator CARDIN. Correct. 

Mr. FINE. And that relates to the question that Senator 

Whitehouse asked me earlier, and that is, that is a matter that the 

Office of Professional Responsibility has jurisdiction to handle, and 

my understanding, publicly stated, is that they are looking into 

those things. So that is something that we will have to await their 

conclusions. I believe that we ought to have jurisdiction, but we do 

not, so we will see what the Office of Professional Responsibility results are. 

Senator CARDIN. So you are not involved in any of that because 

of jurisdictional issues? 

Mr. FINE. Yes. 

Senator CARDIN. You know, there is also the matter of the manner in which U.S. Attorneys were dismissed, the type of cases that 

they were involved with. Those are all areas that you are not directly involved in. 

Mr. FINE. No. That issue we are involved with. We are looking 

at the removal of U.S. Attorneys that happened. We are doing it 

jointly with the Office of Professional Responsibility. We are looking at the reasons why they were removed, and we are doing a 

thorough investigation of that matter. And we will provide that report when it is completed. 

Senator CARDIN. Could you give us an indication as to the timing 

of the release of that report? 

Mr. FINE. I really cannot and should not. I have been the IG for 

8 years, and I am often asked that question, and I am often wrong. 

What I can say is that we are taking this very seriously. We are 

moving as expeditiously as we can. When it is completed, we will 

release it. 

Senator CARDIN. Could I just get certain assurances that we will 

get reports before the end of this year? 

Mr. FINE. I would hope so, but, again, we are going to take the 

evidence wherever it leads in whatever fashion it is, and we will 

do as expeditious a job as we can. And so I think I really ought 

to leave it at that, Senator Cardin. I understand your question and 

your reason for wanting to know, but it is probably better for me 

to just simply say that. 

19 

Senator CARDIN. Could I ask your assurance that if there are 

delays put in your path by the Department of Justice or the administration, that would be brought to our attention? 

Mr. FINE. We will not be shy about raising any concerns with 

problems or delays that are caused by outside entities. 

Senator CARDIN. I take that as a yes. 

Mr. FINE. Yes. 

Senator CARDIN. I appreciate that. You have indicated that you 

are concerned about the jurisdiction of the Inspector General. We 

have also talked about the civil service system. Is there a need or 

recommendations for change in the civil service system’s laws in 

order to strengthen the probability this will not happen again? 

Mr. FINE. I do not think so. I think the laws are there. They need 

to be enforced. They need to be adhered to. They need to be understood. They need to be managed. I think the problem was not necessarily with the law. The problem was with the application of the 

law by the people in the Department of Justice, which is very troubling that the Department of Justice would not adhere to the law. 

There is one issue that I do think the Department of Justice 

needs to clarify and make clear, and that is, when is it appropriate 

to consider political factors in detailees for positions in leadership 

offices. Some positions are policymaking, could be filled by political 

appointees. And if it is a detailee that is being considered, can you 

use political affiliations? There are others that are clearly not policymaking and should not in any way be considered a political position, for example, ones in the Executive Office for U.S. Attorneys 

that we have described. That ought to be made clear which positions and which circumstances is it appropriate to consider political 

affiliations in detailees for positions in the leadership offices. So 

that is one thing the Department ought to do. We recommended 

that in our report. They said they are going to do that. 

Senator CARDIN. So can we count on your following up to see how 

they, in fact, respond in doing that? I take it that is still an open 

issue. It has not been— 

Mr. FINE. It has not been done, but, yes, you can count on us to 

followup and monitor that. 

Senator CARDIN. And let me just underscore the point that I 

think Senator Whitehouse was pursuing. You have a 33-year-old 

ideologue that was able to rule the day in the Department of Justice in which senior Justice Department officials either did nothing 

or just refused to take action knowing full well that political considerations were being used. How was that allowed to continue? 

What was the motivation here? Did your report reflect that? Was 

this a thought that the White House was directing this to occur 

and, therefore, leave it alone? Or was it a concern that certain people would infiltrate the Department of Justice that they did not 

want to see in the Department of Justice? Or was this a reward 

system for political loyalty? I mean, how was this allowed to continue in an agency that has such a long history of excellence and 

being nonpartisan and carrying out justice? 

Mr. FINE. I think it was allowed to occur because people were 

put in very high positions without very much experience and without very much knowledge of the positions. 

Senator CARDIN. Put in high positions by whom? 

20 

Mr. FINE. By people in the Department of Justice, by others. And 

I think that they did not understand the traditions of the Department of Justice. The tradition of the Department of Justice is that 

it is different, it is special. It is not partisan. And when you come 

to the Department of Justice, you put that behind you, particularly 

in career positions, and that you do not try to infuse those kinds 

of decisions with political considerations, particularly hiring of career people. And the people who came did not understand that, did 

not appreciate that, and as I stated before, were not monitored and 

were allowed to run uncontrolled, which was very, very troubling. 

And then these actions happened, and the people at the top, including Attorney General Gonzales, said he was not aware of it. Well, 

that is a problem. That is a very significant problem. And I think 

that it has created damage to the Department of Justice that I believe and hope we will get over, but it is very troubling. 

Senator CARDIN. Senator Schumer? 

Senator SCHUMER. Thank you, Mr. Chairman, and I apologize to 

the witness. We have a Joint Economic Committee hearing at the 

same time, but I took a brief break because I wanted to be here. 

And I want to thank you, Mr. Fine, for staying on top of things and 

doing your job as IG, which I know requires a degree of independence and a degree of courage, and I think you have shown both. 

I have a few quick questions. 

Although we have long known about the unprecedented political 

decisionmaking in the Justice Department, the details of this report are a new low. Over a year ago, when I held the first hearing 

to look into the suspicious firing of several U.S. Attorneys, none of 

us knew that this Committee’s investigation would implicate much 

of the Department’s senior leadership. We heard early on that 

Monica Goodling might be one of the bad actors. That is why I 

urged Senator Leahy to add her to the list of witnesses to subpoena, and now we are all rightly appalled by this account of how 

decisions in the Justice Department were made based on political 

considerations rather than individual qualifications. And here we 

have a great civil service. Senator Whitehouse and Senator Cardin 

know this well, and—I hope they are not leaving because of my 

speeches. No, I know we have a vote so go right ahead. 

They know this well. But I just find it despicable that senior Justice Department aides broke the law, sullied the reputation of the 

Department and of thousands and thousands of people through 

Democratic and Republican administrations alike who just labored 

and did the right thing, and now may be getting off without punishment because they left the Department even though they resigned in disgrace and at the height of a scandal. 

But these revelations are not just a blow to the Department’s 

reputation, but they also affect our ability to keep the country safe, 

it seems, because as you report, Ms. Goodling would not let a 

former U.S. Attorney from Western New York, Mr. Battle, hire his 

own assistant because she believed that his preferred candidate 

had not proved himself to the Republican Party. 

Another qualified New York candidate, a winner of the Attorney 

General’s award for exceptional service, was rejected for a top Justice Department counterterrorism position because of his wife’s 

Democratic political affiliation. Because of this, a vital 

21 

counterterrorism position was filled by a person at the Department 

with no experience. 

So this is not just politics. This is our own safety. When you have 

less qualified people—if we had politics and equally qualified people, it would be one thing. But you have less qualified people 

trumping more qualified people because of their political affiliation, 

and that hurts every one of us in terms of safety and security and 

the jobs of the Justice Department. 

And so most members of the Department, for instance, believe 

that that person in counterterrorism was undeniably unqualified, 

but they met Ms. Goodling’s ideological test. That is beyond disgraceful, in my view. 

One of the most shocking conclusions in your report is that someone like Monica Goodling who politicized the appointment of Assistant U.S. Attorneys, immigration judges, and even counterterrorism 

positions, may not face any real consequences for her actions simply because she already left the Department. Under current law, 

even though these people broke Federal civil service laws and 

trampled on the Department’s own standards, they need only 

change jobs to escape real accountability. It could be that someone 

could leave while you are doing the investigation or even the day 

before you issue your report and escape any punishment whatsoever. 

So let me ask you this, Mr. Fine: Should such blatant 

politicization and illegal activity be subject to some criminal punishment so there would be ultimately accountability? In your view, 

would a criminal penalty—say a misdemeanor—help prevent such 

behavior in the future, work as a more effective deterrent, and provide better accountability? I am sure it sticks in many people’s 

craws that these were horrible things that were done and because 

simply you resign from the Department you escape any punishment. 

Mr. FINE. Well, let me talk a little about the premise of the question, and then I will get to whether the law should be changed, my 

view on that. 

I am not sure it is true to say that she escaped any accountability, any punishment. As I discussed with Senator Whitehouse 

earlier, people did leave the Department so they cannot be disciplined by the Department, but we have recommended that they 

never get a job with the Department again, hopefully never with 

the Federal Government again, that they consider this report if 

they ever do apply. 

They have been exposed. Their conduct has been exposed in a 

transparent way for all to see. And then there may be—I am not 

saying there is, but there may be appropriate bar sanctions possibly for attorneys who have committed misconduct and may have 

violated a bar rule. And so the bar may look into that. There is no 

criminal punishment that we see for this conduct. 

Now, should there be criminal punishment? I am not sure. To 

criminalize violations of civil service law might expose a lot of people to potential misdemeanors in circumstances not like that. So I 

would have to think more carefully about that. But my initial reaction is we have civil law and criminal law, and there ought to be 

that separation. 

22 

But I recognize the concern about accountability, and I believe 

that the comments that I made about the premise will— 

Senator SCHUMER. And, you know, even aside from discretion, in 

other words, a minor violation without real intent, different than 

this, might not be prosecuted. I am sure there is a way to draft the 

law to make it a misdemeanor if it was repeatedly done. I mean, 

there are ways to set standards so not every civil service violation 

would be a misdemeanor, don’t you think? 

Mr. FINE. Yes, but when you draft it that way, I think you can 

sweep in conduct that you may not want to have criminalized. 

There are a lot of difficult issues in the civil service law. This one 

I do not think was a difficult issue. But you make a statute to cover 

the civil service law. 

Senator SCHUMER. It is something I am exploring, and I would 

like to continue the dialog with you. 

Mr. FINE. Certainly. 

Senator SCHUMER. OK. One other—did we start our vote? 

Senator WHITEHOUSE. [Presiding.] We have not started the vote. 

Senator SCHUMER. We have not started the vote. OK, good. So 

this is about burrowing. As you may know already, Senator Feinstein and I wrote a letter to the Attorney General last week, and 

this is before your report came out. In the letter we asked the Attorney General to investigate instances of burrowing in the Department where political appointees are then given career positions and 

continue to assert influence during a future administration, even 

though that candidate may not be the most qualified. 

Now, our letter was based on a report by the GAO that found the 

Department was engaged in improper hiring procedures, like refusing to award our war veterans consideration they deserve and are 

legally due. So we are acting—that is, Senator Feinstein and I— 

proactively to ensure that career positions in the Federal Government are filled by the best individuals available and in accordance 

with Federal law. 

Did you find any overlap between the GAO findings and the particular instances of politicization in hiring that you have been investigating? 

Mr. FINE. Well, we did not look at that issue of burrowing, but 

I think sort of the same principles apply and the same concerns 

apply; that is, if you are using any considerations other than a fair 

and open competition and merit-based, based upon the skills, 

knowledge, and ability of someone, then there can be those kinds 

of problems. 

I do know that the GAO is opening a review of this and has done 

reviews in the past. So I think that is important to maintain transparency and scrutiny on that subject, and I think that is an important issue. 

Senator SCHUMER. Thank you. My time has expired. 

Thank you, Mr. Chairman. 

Senator WHITEHOUSE. Thank you, Senator Schumer. 

Just to followup on the discussion with Senator Schumer and 

with respect to the consequences of these violations of Federal law, 

first of all, can you identify what bar rules might have been broken. I did not see—this is an OIG/OPR joint report, correct? 

Mr. FINE. Right. 

23 

Senator WHITEHOUSE. I did not see OPR making any referral to 

disciplinary counsel as a result. So I am a little confused about 

what disciplinary consequences lawyers might face for their role in 

the administrative process of hiring, and if you are confident that 

there might be those processes, why the OPR side of this did not 

make any referral to local disciplinary counsel? 

Mr. FINE. My understanding is—and I had discussions with OPR 

about this—that OPR intends to, and we will participate in a notification of the bars of individuals who are found to have committed 

misconduct, for them review the conduct. Now, I do not believe 

OPR has done a lengthy review of this and say which exact rule, 

but it does intend to, and I think it is appropriate to notify the bars 

of the individuals who were involved. In fact, I think some of them 

have already been notified. I have read that individuals have provided our reports to various bars for the bar to look at. 

In terms of the rules, I am not an expert in the area of potentially Rule 8.4, which talks about the administration of justice and 

acts going to the fitness of an attorney to practice law. I am not 

saying that necessarily does apply, but I think there are things 

that ought to be reviewed and looked at, and the experts in this 

area ought to do that. 

Senator WHITEHOUSE. OK. And following up on my discussion 

with you and Senator Schumer’s discussion with you about not only 

consequences but also, I guess, deterrent effect or motivations, if 

you are not enthusiastic about any criminal penalty, even at the 

misdemeanor level, for a deliberate violation of the civil service hiring laws, would you think that it might make sense to strip from 

individuals hired pursuant to a deliberately flawed process the protection of those civil service laws until they had gone through a legitimate process? It strikes me that if something like that were set 

up—you know, this is not done just for fun. This is not done just 

because somebody has an idle hour. This is done in order to 

achieve political ends. And the end is to put certain people with 

certain ideology in certain positions. And if the folks who are going 

about doing that were understood that by virtue of distorting and 

compromising the civil service hiring process, they are actually denying the folks that they would be planting in the civil service positions the benefit of civil service protection, it would seem to me 

that it would operate as a counterincentive to these sorts of attempts to subvert the civil service system. Would you— 

Mr. FINE. I would have to think more about that. That is an interesting proposition. 

Senator WHITEHOUSE. Take the prize out of the game, basically. 

Mr. FINE. Yes. I am not sure I am ready to answer that question 

off the cuff. It is an interesting proposition. I would say that I am 

not sure that all of the individuals who were selected knew about 

the improper procedure that was used. Maybe some of them did. 

I am not sure all of them did. 

Senator WHITEHOUSE. And to a certain extent, it would be their 

bad fortune to have been on the losing end of this. But from a 

structural point of view, it would take away the incentive, the 

prize, if you will, of the game for those who are manipulating or 

compromising the civil service process to political ends. 

24 

Mr. FINE. That is one way to do it. I would hope that the Department would do it directly and to prevent the people from actually 

doing this so we do not have to get to this, the fact review, but I 

understand your point. 

Senator WHITEHOUSE. The last question that I have has to do 

with—you indicated on a number of occasions in this report that 

people gave statements to you in the course of their interviews that 

you described as ‘‘inaccurate,’’ and in some cases described rather 

pointedly as ‘‘inaccurate,’’ and in what looked to me to be circumstances in which it was a little hard to believe that it was an 

innocent mistake. And my question to you is: Are the interviews 

that you conduct within the ambit of 18 U.S.C. 1001, the False 

Statements Act? And do you have a process for evaluating whether 

inaccurate statements provided to you in these interviewed amount 

to a false statement under that Act? And what is that process for 

such inaccurate statements? How do you get from you just saying 

it is inaccurate in the report to a referral of some kind for some 

prosecuting official to look at whether that criminal law was violated? 

Mr. FINE. Well, they are within the ambit of Section 1001; a false 

statement to an OIG investigator is covered by that statute. And 

we do analyze that. We analyze whether the evidence is sufficient 

to prove beyond a reasonable doubt that the statement both was 

inaccurate, the very specifics of the statement—and you, being a 

former U.S. Attorney, know the difficulty. You have to be very precise about what the question is and what the answer is, and it has 

to be inaccurate and false in all respects. And then we go to the 

intent of the person, whether it was a mistake or whether they 

knew it was inaccurate and we can prove that beyond a reasonable 

doubt. 

So the same processes that an Assistant United States Attorney 

would use—and we do have Assistant United States Attorneys, 

very experienced ones, on our staff who have done this over their 

careers, do that analysis. 

Senator WHITEHOUSE. So is it safe, then, to conclude from the report limiting itself to only describing these statements as inaccurate and not making any further referral or not discussing any 

further whether the statements might merit prosecution, that you 

did, in fact, look at that and that the conclusion that you drew was 

that these statements, however inaccurate, did not amount to what 

an Assistant U.S. Attorney preparing a charge would consider adequate to bring that charge under 18 U.S.C. 1001? 

Mr. FINE. That is correct. 

Senator WHITEHOUSE. OK. Very good. Well, we have this vote, 

and everybody has gone to vote, so I probably better do the same. 

I would like to, with unanimous consent, insert into the record on 

behalf of Chairman Leahy a number of editorials from papers 

around the country, including the New York Times, the San Francisco Chronicle, the Washington Post, and USA Today that have 

editorialized against the partisanship of the Ashcroft and Gonzales 

regimes and called upon the current Attorney General to take action in response to these reports and hold people accountable, and 

a selection of these will be put into the record. 

25 

The record will remain open for 1 week in the event anybody 

wishes to add to it, and if there is nothing further, again, with my 

grateful appreciation not only to you but also to the, I assume, very 

busy and hard-working staff members of the Office of Inspector 

General of the Department of Justice, you have done your own office and the Department, I think, considerable good with this report. And I hope you feel considerable pride in it. I think that 

many of us do. Thank you. 

Mr. FINE. Thank you. 

Senator WHITEHOUSE. The hearing is adjourned. 

[Whereupon, at 11:20 a.m., the Committee was adjourned.] 

Questions and answers and submissions for the record follow.} 

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