Did Sampson and Goodling Have Total Control of DOJ Political Hiring?:
The National Journal has a fascinating story about the hiring and firing of political appointees at DOJ that may help explain the context of the U.S. Attorney "purge" story:
Thanks to reader Bob English for the link.
Attorney General Alberto Gonzales signed a highly confidential order in March 2006 delegating to two of his top aides — who have since resigned because of their central roles in the firings of eight U.S. attorneys — extraordinary authority over the hiring and firing of most non-civil-service employees of the Justice Department. A copy of the order and other Justice Department records related to the conception and implementation of the order were provided to National Journal.Remarkable. And assuming this story checks out, it certainly explains why Gonzales seemed so clueless about the U.S. Attorney firings. It seems that Gonzales had taken himself completely out of the loop of all DOJ political appointee hiring. He had delegated that role completely to two 30-somethings, Kyle Sampson and Monica Goodling; his only role was a formality, required just so that OLC would find the practice constitutional.
In the order, Gonzales delegated to his then-chief of staff, D. Kyle Sampson, and his White House liaison "the authority, with the approval of the Attorney General, to take final action in matters pertaining to the appointment, employment, pay, separation, and general administration" of virtually all non-civil-service employees of the Justice Department, including all of the department's political appointees who do not require Senate confirmation. Monica Goodling became White House liaison in April 2006, the month after Gonzales signed the order. . . .
A senior executive branch official familiar with the delegation of authority said in an interview that — as was the case with the firings of the U.S. attorneys and the selection of their replacements — the two aides intended to work closely with White House political aides and the White House counsel's office in deciding which senior Justice Department officials to dismiss and whom to appoint to their posts. "It was an attempt to make the department more responsive to the political side of the White House and to do it in such a way that people would not know it was going on," the official said.
An original draft of Gonzales's delegation of authority to Sampson and Goodling was so broad that it did not even require the two aides to obtain the final approval of the attorney general before moving to dismiss other department officials, according to records obtained by National Journal. . . .
The department's Office of Legal Counsel feared that such an unconditional delegation of authority was unconstitutional, the documents show. As a result, the original delegation was rewritten so that in its final form the order required "any proposed appointments or removals of personnel" be "presented to the Attorney General... for approval, and each appointment or removal shall be made in the name of the Attorney General."
The senior administration official who had firsthand knowledge of the plan said that Gonzales and other Justice officials had a "clear obligation" to disclose the plan's existence to the House and Senate Judiciary committees — but the official said that, as far as he knew, they had not done so.
Thanks to reader Bob English for the link.
Related Posts (on one page):
- Bradley Schlozman and Hiring for Career Spots in the DOJ Civil Rights Division:
- Did Sampson and Goodling Have Total Control of DOJ Political Hiring?:
- WaPo on The DOJ Hiring "Scandal":
- DOJ Ends Role of Political Appointees in Honors Program Hiring:
The only answer that I can think of is "deniability," but that seems so stupid.
Can you explain this?
Maybe the White House asked him to, and Gonzales is not one to say "no" to the White House.
Okay, but that just bumps the question up a step. Why would the White House want AG AG cut out of the loop? He's already loyal to a fault, as you note.
I guess it was indeed for "deniability" -- maybe it sounded like a good idea to Rove.
Or it could be that AG insisted on it -- "I refuse to be involved in this indecent politicization! Here, let me sign an order so that it can be carried on by someone else!" A matter of principle ...
But according to the National Journal article:
Well, I guess that settles it. Obviously, Orin is incorrect. Nothing to see here.
Goodling went to Regent University Law School and got her undergrad at Messiah College.
Sigh this controversy makes me sadder each day
A parody, I assume?
I confess to sarcasm.
This is remarkable, indeed.
So what? Two of the biggest legal idiots I know graduated from Harvard Law.
Is one of them a guy named Alberto Gonzales?
to two 30-somethings, Kyle Sampson and Monica Goodlingthe White House; his only role was a formality, required just so that OLC would find the practice constitutional.Fixed your post, unless you're going to assume that Goodling and Sampson did things on their own initiative, without orders.
As a practical matter, I'd rather have almost anybody making any decision as long as it kept that decision from being made by Alberto Gonzales. I don't care how old they are or where they went to law school.
In particular, how would a proponent of the unitary executive theory view OLC's initial concerns?
If someone is a competent executive they will assign most tasks to others, especially when they can find someone who can do a function better. In this case, the AG found someone he thought could do the personnel job better than he could.
That does not excuse his performance in congressional testimony, as that part is his job. Even if the underlings screwed up for him.
Even vaguer and more diffuse: By being in the Cabinet and approved by the Senate, AGAG derives some measure of his power from Congress. Perhaps because of this he is a principal with nondelegable power in a way that others subordinate to him cannot be?
In other words, it's not the firing, it's the hiring that's the problem. Relevant language, from Art. II, sec. 2 of the Constitution (the excepting clause itself is bolded):
"[The President] shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments" (emphasis added).
Here is a nice discussion of what constitutes an "office" for these purposes:
http://www.justice.gov/olc/2007/appointmentsclausev10.pdf
And here is a nice discussion of the Excepting Clause (not directly on point, but provides some background and history of the provision, esp. pp. 3-4):
http://www.justice.gov/olc/2005/militaryappointments.pdf
The only answer that I can think of is "deniability," but that seems so stupid.
I suspect it looks intelligent, compared to my likely answer. OK, these two will coordinate things with the White House. One fewer thing to worry about. I'll just sign whatever they prepare, and get back to the speaking circuit.
I'm quite serious.
At one point in my time at Interior, the bean-counters came up with the idea of a litigation book, in which every case would have one page. Great bean-counter idea, because everyone else had to do the work, while they got the credit. (Turned out that HQ thought Interior was involved in hundreds of case, and it was actually involved in thousands of them. Preparing the book, monthly, without a single typo -- the bureacracy obsessing on that -- was a major pain).
At the bottom of each page was the staff atty's name and phone. Secretary Lujan actually skimmed his book. Hey, these are some interesting cases! He started calling the attorneys and asking questions. The bureaucracy went into a panic. The Secretary was actually getting data from the people handling things, rather than "the position" of their unit.
We got a written order that we were not to take his phone calls, and to tell him to submit questions thru the appropriate channels. I'm not kidding. The top legal guy had been the president's attorney, and hence had no fear of the Secretary firing him. A cabinet official was unable to call his employees and ask what was going on....
Accepting that premise, is that what BoredLawyer wants? Because personally I don't want any of that.. I want boring relatively nonpartisan AGs. But if there's an argument for the above I'm curious to hear it.
http://www.usdoj.gov/olc/2005/militaryappointments.pdf at page 4.
If the OLC (and the Supreme Court) was right that the Excepting Clause was "designed to 'limit[] the universe of eligible recipients of the power to appoint' in order to ensure that such actors were readily identifiable and politically accountable," then a secret delegation seems to go against the constitutional grain -- and a secret delegation combined with back-channel control by political operatives in the White House would be worse yet.
(Trivia(?): Note who argued the Freytag case for the SG's office.)
The bottom line was that Nixon had the authority to order Archibald Cox fired, too. Look what that got him.
It all turns on the "why"--and the "why" can still fall well short of criminal and still be unsavory, and something legal professionals should not endorse. Competence in the administration of justice is not a mere "political" chit.
If, say, John Kerry had been president since 2004, no doubt he would have done some things differently from what Bush II has done, and what he did would have been legal. Somehow, though, I doubt you and many others would shrug and say, 'So, what's the difference?'
'Will no one rid me of this insufferable priest?' was not an illegal order.
BTW, this was not provided by DOJ to the Senate Judiciary Committee. Wonder why? A legal question, can the Senate find various members of the DOJ now in contempt of Congress and how does that effect their ability to practice law?
To compound this, Gonzales lied to Congress - which is, despite the overwhelming sentinment among commenters here, actually illegal, even if the Congress is a Democratic Congress. That, combined with Goodling's refusal to testify, Samson's testimony contradicting Gonzales, and Gonzales' inability to remember just about everything he did, lends considerable credence to the theory that there were some serious crimes commited.
This is NOT the theory advanced in this thread. The theory advanced here, rather, is that there is some CONSTITUTIONAL limitation as to whom the President can delegate hiring and firing functions.
As to your theory, it has several holes. First, it seems clear that 6 out of 8 of the fired US Atty's had nothing to do with ongoing investigations.
Second, firing a US Atty does not impede an investigation or prosecution -- which can very well go forward with other prosecutors.
Third, IMO, the application of the obstruction of justice statute to these circumstances -- a President's discretionary firing of a senior federal officer -- is problematic both from a statutory as well as Constitutional perspective. This is not classic obstruction of justice -- lying to a federal investigator, destroying or fabricating evidence, witness tampering, etc. What is involved here, rather, is a President exercising his Constitutional prerogative to fire a federal officer. Ultimately it is the President (through the DOJ) who determines what is or is not prosecutable.
Certainly, there are many things that are unsavory yet perfectly legal. The problem is that in this scandal, there is a complete jumble of what has been charged -- anything from unconstitutional appointments, criminal obstruction of justice, to the merely unsavory.
And the latter too can have many levels and points of agreement or disagreement. Is it "unsavory" for a President and his AG to determine that illegal immigration is a serious problem, that enforcement (including criminal prosecutions, where warranted) should be increased, and if a senior DOJ appointee, like a US Atty, cannot work with this policy, he or she should be replaced?
Sure, using the DOJ for purely partisan purposes (i.e. limiting corruption prosecutions to those of your opposing party) stinks to high holy heaven.
But we should make clear that just because something stinks (and for which a President ought to pay a political price) does not necessarily mean it is criminal or violates the COnstitution.)
Thank you, Brennan, for an interesting angle I had not thought of. This probably requires a separate post, but some questions raised are:
1. What exactly is an "inferior officer" as to whom the limit discussed applies? Most federal departments have thousands of employees, hard to believe this applies to them.
2. Why is one level away OK? The argument is that the PRESIDENT has to appoint the inferior officers. Why is it OK for him to delegate it one level away --say to the AG (or other cabinet level officer) but not two levels away. Do Presidents really appoint all the deputy and assistant level secretaries in each federal dept.?
3. the Clause does not prohibit substantial involvement of subordinates in the appointment process. So what exactly is the minimum required of the President? Is it enough (as I suspect happens) that he tells each cabinet member -- "draw up a list of those you want appointed in your department, I'll review quickly, and appoint them"?
Read the clause of the Constitution again. The President, or the heads of department (e.g., the AG), can have authority to appoint inferior officers.
Agree as to the jumble, which is almost inevitable when the whippers-in are motivated more by partisan advantage than any principled concerns about legality or good government.
However, it seems to me that Gonzales has been exposed as a miserable administrator, and that ought to be enough reason to get rid of him. Even if none os his actions rose even to the level of 'unsavory.'
Who now would want to put him in charge of anything that required close supervision?
The assault of Wolfowitz at the World Bank seems rather similar. What Wolfowitz did, whatever that was, does not seem like a great offense -- and it is hilarious that the Old Guard at the bank, perhaps the world's biggest provider of financial corruption, should be so worried about a possibly unmerited disbursal of less than $100K -- but it does reveal W. as somebody not ready to direct a large organization.
The interesting thing, Jeremy T., is to ask WHY they even sought to get the original, no-AG-needed version in place ... and then to ask whether that original version better represented how the process worked in practice.
If the White House decides to put the Iraq war into the hands of Nicholas Romanov, no Presidential approval needed, and then someone remembers Article II and says, "whoops, we need to add something about 'subject to presidential approval,'" then it's a fair inference that the purpose will remain to have Nicholas running the war, "approval" notwithstanding.