Because We Trust Kyle and Monica More than We Trust the Deputy Attorney General

Marty Lederman

Last week, Murray Waas of the National Journal revealed that in March 2006, Attorney General Alberto Gonzales signed what Waas described as "a highly confidential order . . . 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." Now, the good folks over at Talking Points Memo have posted that Attorney General Order, along with the routing memo for that Order from the Justice Management Division.

The persons to whom this important responsibility were being delegated are, of course, then-AG Chief of Staff Kyle Sampson and Monica Goodling, who just coincidentally was appointed to be White House Liason one month after this Order was signed.

Waas's article is terrific. Here's the gist of it:

The existence of the order suggests that a broad effort was under way by the White House to place politically and ideologically loyal appointees throughout the Justice Department, not just at the U.S.-attorney level. Department records show that the personnel authority was delegated to the two aides at about the same time they were working with the White House in planning the firings of a dozen U.S. attorneys, eight of whom were, in fact, later dismissed.

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.

It's important to put this maneuver in some historical perspective.

For at least several decades, the Attorney General's authority to hire and fire DOJ officials and employees was largely delegated to the Deputy Attorney General (the No. 2 official at DOJ) and, for certain lower-level positions, to the Associate Attorney General (the No. 3 official). The regulations effecting such delegations, 28 CFR 0.15 and 0.19, were last comprehensively promulgated at the outset of the Reagan Administration. See 46 Fed. Reg. 52339 (Oct. 27, 1981).

In February 2006, the Department publicly promulgated an Attorney General Order that changed this longstanding practice. See 71 Fed. Reg. 6206 (Feb. 7, 2006). Nominally, the AG re-"reserved" to himself his long-ago-delegated authority to take "final action" in all matters pertaining to the appointment, employment, pay, separation, and general administration of three large and important categories of DOJ positions: (i) employees in the highest three Offices in the Department (the offices of the Attorney General, Deputy Attorney General, and Associate Attorney General); (ii) employees appointed to a Schedule C position established under 5 CFR part 213, or to a position that meets the same criteria as a Schedule C position; and (iii) "any Senior Executive Service position in which the incumbent serves under other than a career appointment." ["Schedule C" employees fill civil service positions that are in neither the competitive service nor the Senior Executive Service; they are positions "of a confidential or policy-determining character," such as special assistants and confidential secretaries.]

By all public accounts, then, the new regulation -- see 28 CFR 0.15(h) and 0.19(d) -- kicked responsibility for important employment decisions up the ladder, to the very top of DOJ. (DOJ did not explain why it was making such a fundamental change. The Federal Register Notice simply stated that "[i]n addition, the rule reserves certain personnel administration authorities to the Attorney General.")

Three weeks later, however, in a decidely non-public move, the AG re-delegated the responsibility -- not, this time, to the Number Two and Three officials in the department, but instead to the youth brigade. And, according to Waas, the purpose for this change in delegation was to ensure that the White House had much greater -- and more unilateral and less transparent -- decisionmaking with respect to DOJ employment decisions.

The White House Press Secretary is quoted in the Waas article as saying that it was "unremarkable" that Sampson and Goodling would be involved in the hiring and firing of Justice Department officials, because it "is fairly standard practice in any large Cabinet department or agency. The White House has full authority in hiring and firing presidential appointees [and] can choose to delegate that authority."

This is exactly right, but it's very revealing, too -- because of course there was nothing preventing the White House from influencing DOJ hiring decisions for the past several decades. As Bob Litt correctly notes in the Waas piece, there is nothing at all unusual or troubling about the White House being centrally involved in such decisions. It happens all the time, and in most cases it's entirely appropriate that, for instance, the President would have a veto over those chosen to be his agents within DOJ. This was the regular manner in which things worked in the Reagan, Bush I, and Clinton Administrations.

So why the change? Obviously, it's because the Bush White House had concluded that as long as the DAG and Associate were in the loop, as a practical matter the White House did not have sufficient control over employment decisions.

And why would that be? Because in the ordinary course of things, the prosecutors and other professionals in the DAG and Associate's offices served as an internal check to make sure that persons hired are not simply partisan hacks -- that they satisfy certain minimum professional qualifications and would be among the best available persons for the jobs. In other words, for more than a quarter-century, the process roughly ensured that potential hires would be fully vetted through a comprehensive process, and that eventual employees would satisfy two constituencies -- the poliitcal/policy folks, and the professionals.

But evidently this Administration felt that it could not trust the DAG's Office to march in lockstep behind the political decisionmakers. (At the time, the Senate had indicated that it would not confirm the President's first choice to replace James Comey as DAG -- Gonzales's former White House Counsel Deputy, Tim Flanigan -- and the White House had tapped Paul McNulty for the job.) Here's Waas:

Even though the White House played a major role in filling Justice Department positions before and during the Clinton administration, Litt said, "there was always a bit of tugging and pulling" between the White House and career department officials in selecting top aides: "Typically, a deputy attorney general might really like someone and the White House might not, or vice versa."

In the end, however, Litt and current and former Justice Department officials said that a balance is often brokered between the policy and political imperatives of an administration and the desire of career federal law enforcement officials to protect the integrity of the criminal-justice process. When Gonzales delegated such authority, and in secret, to Sampson and Goodling, he risked tipping that balance, Litt and other officials said.

That seems exactly right to me. The problem is not that political, policy and "loyalty" considerations would be brought to bear on high-level employment decisions at DOJ -- that has always been the case. The White House -- and the Goodlings and Sampsons of the Department -- have always been involved in such decisionmaking. The problem here -- the real radical shift -- is that under the new AG Order, the decisions are left entirely to such persons, so that the decisions are completely politicized -- anyone with any institutional or professional judgment or experience is cut out of the loop.

But two other things should be emphasized, too.

First, although the public AG Order in February 2006 purported to be re-establishing the AG's own responsibility for DOJ hires, in fact -- and just as with respect to the U.S. Attorneys scandal -- the Attorney General himself obviously was trying to wash his hands of it entirely, to delegate responsibility entirely to the White House and to its minions at DOJ. As to almost all appointees, the AG's delegation is to Sampson and Goodling outright -- not only wouldn't the DAG and Associate any longer have any say in the matter, but the Attorney General could remain oblivious to the political machinations, as well.

As to certain higher-level appointees -- those deemed "inferior officers" under article II, section 2 of the Constitution -- Waas explains that the Office of Legal Counsel got cold feet as to such a complete delegation, because OLC has not resolved the question whether the "Head of a Department" may delegate the power of appointing inferior officers to lower-level officers. In a recent Opinion, OLC concluded as follows:

The question whether Congress may permit the President or the head of a department to delegate appointment authority to an officer below the head of a department is a difficult one, and we cannot provide a definitive answer at this time. . . . [N]either the Attorney General nor this Office has definitively answered the question with respect to inferior officers who do not require Senate consent. While we do not attempt to resolve the question here, we can offer this advice: so long as each nomination is submitted to the [head of Department] for approval (whether individually or in groups) and each appointment is made in the name of the Secretary of Defense (whether the document evidencing the appointment be signed by the Secretary or an authorized subordinate officer), the Constitution would permit much of the legwork of the appointment process to be delegated to a subordinate.

Under this view, the Constitution allows the AG to assign virtually all of the "legwork" to Smapson and Goodling, as long as the final decision has the AG's approbation, which can be evidenced not only by the AG's own signature, but also by the signature of "an authorized subordinate officer." This is complete delegation in all but name. It's probably constitutional -- and it is, in effect, what was done for many years by delegating such decisions to the DAG and the Associate.

There would be nothing inherently problematic about transferring this responsibility away from the DAG to, say, other experienced professionals with law enforcement experience and judgment. The problem here is that this important function has now been delegated to persons having virtually no tie to the cadre of professionals in the Department -- young attorneys who had no background, experience or qualification to evaluate candidates for senior law enforcement positions except their political connections and loyalty to the White House. But the fact that the DAG's traditional responsibility was transferred lock, stock and barrel to these two people, of all the officials in the Department, makes clear that the only relevant considerations for hiring were to be partisan political considerations, not performance.

And the Attorney General himself will be at best a rubber-stamp.

Second, it appears not only that the DAG and the Associate were being cut out of the loop on employment decisions, but perhaps that they were not even let in on the fact that their former responsibilities had been delegated to Sampson and Goodling. The AG Order itself was cleared by OLC -- but by no other component. What's more, according to Waas, the DOJ "control sheet" that accompanies such an Order as it makes its way through the Department -- this document is not yet published -- included this notation: "Per instructions received from JMD [the Justice Management Division], ODAG [the office of the Deputy Attorney General] is to be bypassed on the package." We don't yet know whether this "bypassing" was done simply because the DAG was to have no say in any employment decisions any longer, or in order to keep the DAG in the dark about the delegation itself.

It would be interesting to learn whether Paul McNulty knew about this delegation -- and what he thinks about the emasculation of the traditional role of the DAG's Office in making sure that DOJ hires are marked by a minimum level of professionalism.
Posted 2:16 PM by Marty Lederman [link]