Balkinization  

Friday, May 25, 2007

The Curious Case of Goodling and the Immigration Judges

Marty Lederman

[UPDATED below with a bit of law and today's developments.]

Without any provocation, nor any prior public discussion about the matter, Monica Goodling in her prepared statement acknowledged that she "took political considerations into account in making recommendations for positions as Immigration Judges and members of the Board of Immigration Appeals." See discussion here. She testified that she thought such political criteria could be used because Kyle Sampson had told her that OLC "had provided guidance some years earlier indicating that Immigration Judge appointments were not subject to the civil service rules applicable to other career positions." Goodling further testified, however, that in late 2006 the Civil Division "expressed concerns that the civil service rules might apply" to such immigration judges. In her oral testimony, Goodling specified that "concerns were raised about political criteria for such employment decisions as a result of some litigation, after which "the Civil Division came to a different conclusion" from that allegedly reached by OLC.

There is no published OLC opinion on this question. And according to an article by Rick Schmitt of the L.A. Times, a DOJ spokesperson on Thursday said that no such OLC opinion exists, and further denied outright Goodling's testimony that the hiring of immigration judges was frozen after Civil Division concerns: "'There is no disagreement within the department, including between the Civil Division and the Office of Legal Counsel, about whether the civil-service laws apply to the appointment of immigration judges,' said Dean Boyd, a Justice Department spokesman. 'They do apply.'"

Something is happening here, but we don't don't what it is. Goodling obviously knew that her conduct in this regard was dubious, and testified about it even though no one had raised any question about it previously, so as to ensure that her immunity would extend to this episode, as well. (She was very well-advised by John Dowd.)

Although DOJ now asserts unequivocally that the civil service laws apply to the appointment of IJs (which would presumably mean they cannot be hired with an eye to partisan considerations such as party affiliation, voting and political contribution history), it's not immediately apparent where in federal law that is specified. (I'd be very grateful for any information on the legal question.) And what about the appellate judges -- the members of the BIA that Goodling spoke about? Why did she think there was an OLC opinion? A civil case raising the question? A dispute between OLC and Civil?

We haven't heard the last of this new wrinkle.

[UPDATE on the law and dueling public statements between DOJ and Goodling:

Thanks much to those who have written by e-mail and in the comments with information on the law. I don't have time for research to confirm all this just now, but this appears to be basic outline: 5 U.S.C. 2302(b)(1)(E) prohibits all personnel actions -- including appointments -- with respect to "covered positions," on the basis of political affiliation. "Covered positions," in turn, include "any position in the competitive service, a career appointee position in the Senior Executive Service, or a position in the excepted service." Section 2302(a)(2)(B).

Members of the BIA and IJ judges are part of the "excepted service," and therefore political affiliation cannot be a basis for any personnel actions regarding them, unless those positions are subject to the exception described in subsection 2302(a)(2)(B), i.e., "any position which is, prior to the personnel action--

(i) excepted from the competitive service because of its confidential, policy-determining, policy-making, or policy-advocating character; or
(ii) excluded from the coverage of this section by the President based on a determination by the President that it is necessary and warranted by conditions of good administration."

Until this Administration, BIA members and IJs were not thought to be included within the exception. But there is some reason to think that the Bush Justice Department determined that, because the Attorney General has the authority to appoint members of the BIA and IJs, those positions must therefore be of a "policy-determining [or] policy-making character," and thus exempted from civil service protections. In his recent article in the Cornell Law Review, Deportation and the War on Independence, 91 Cornell L. Rev. 369 (2006), Steve Legomsky points to a 2002 final regulation, 67 Fed. Reg. 54,878, 54,893 (Aug. 26, 2002), as suggesting that, in the view of AG Ashcroft, the AG has virtually unbounded discretion to remove all attorneys in DOJ, including in particular BIA members and IJs. (The commentary to the reg does not quite say that in so many words -- but there's a strong insinuation.) And one year later, Ashcroft in fact removed many BIA members, virtually all of them viewed as liberal or more sympathetic to aliens' claims. Similarly, as Jason McClure reported last June, since 2004, appointments to be IJs have been largely reserved for persons whose principal qualification appears to be that they have been loyal Republicans.

Thus, there is some circumstantial evidence, at least, supporting Goodling's testimony that DOJ had determined that the civil service laws do not protect IJs and members of the BIA.

DOJ now denies any such thing -- it claims that the immigration judges are not excepted and thus are protected by the civil service laws. However, Goodling has obviously hit a nerve. John Dowd, Goodling's lawyer, issued this reply to DOJ today (thanks to TPM):
Today, Department of Justice spokesman Dean Boyd stated that the Department had "located no record of an Office of Legal Counsel opinion advising that Immigration Judges may be appointed on the basis of political considerations or that civil service laws do not apply to such appointments."

Ms. Goodling is aware of the fact that the Office of Legal Counsel never issued a formal opinion on the matter, and she did not suggest otherwise in her testimony before the House Judiciary Committee. Around the time Ms. Goodling became White House liaison in April 2005, Mr. Kyle Sampson told her that Acting Assistant Attorney General [for OLC] Daniel Levin had advised that Immigration Judgeships were not subject to the civil service rules applicable to other career positions. Ms. Goodling testified consistently with these facts before the House Judiciary Committee.

In her written remarks, Ms. Goodling testified:
Around the time I became White House Liaison in April 2005, Mr. Sampson told me that the Office of Legal Counsel (OLC) had provided guidance some years earlier indicating that Immigration Judge appointments were not subject to the civil service rules applicable to other career positions.
This testimony is truthful and accurate.

In response to questions from Representative Nadler, Ms. Goodling stated:
I was informed that the Office of Legal Counsel had said that because those were positions under a direct appointment authority of the Attorney General, that we could consider other factors in those cases. Later, concerns were raised as a result of some litigation and the Civil Division came to a different conclusion. As a result of that, we actually froze hiring late in December of last year.
This testimony is truthful and accurate.

In response to questions from Representative Goodlatte, Ms. Goodling stated:
In other cases like immigration judges and Board of Immigration appeals, I thought that we could consider other factors because I had been told that, in relation to immigration judges -- and I think my assumption was that that applied to the BIA as well.
This testimony is truthful and accurate.

Finally, in response to questions from Representative Sherman, Ms. Goodling stated:
If you're asking about other categories like immigration judges or BIA members, originally, I was told that we could, particularly in relation to the immigration judges. And I assumed it applied to BIA positions as well. I was told that those factors could be considered.
This testimony is truthful and accurate.
]

Comments:

One clarification: I believe that she only received "use immunity." So testifying on the topic didn't immunize her against prosecution. However, I think you're still right, Marty, that she was very well advised. Having the immunized testimony out there creates all kinds of troubles for prosecutors who might later decide to charge her. See Iran/Contra.
 

mount said:

One clarification: I believe that she only received "use immunity." So testifying on the topic didn't immunize her against prosecution. However, I think you're still right, Marty, that she was very well advised. Having the immunized testimony out there creates all kinds of troubles for prosecutors who might later decide to charge her. See Iran/Contra.

Hmmm, that makes sense. Make sure that you get asked about anything potentially criminal; if it's not in your testimony and they find out about it, you can still be prosecuted (although they'd have to show that they would have found out about it despite what you did say).

Cheers,
 

I wonder if the politicization of the appointment process for immigration judges may be the reason we have seen such a marked fall off in the quality of work completed by these administrative judges. Some of the federal appellate courts have written some rather strident opinions in this regard the last few years. The judiciary may have been sending signals all was not right the last few years and we just misinterpreted them because nobody thought this could happen. What else have we missed?
 

10 Zen Monkeys has an interview with Greg Palast I think you might be interested in.

http://www.10zenmonkeys.com/2007/05/24/justice-department-scandal-greg-palast/
The Future of America Has Been Stolen

JD: Do you have a wide-angle view of the current Administration’s strategy with the Justice Department, and if so, give us the summary. Is it about election theft, or is it mostly about stocking the lake for future conservative judge appointments?

GP: Yes. First, it’s elections. They don’t want the voters making any foolish choices. Specifically, while the attention’s been focused 100% on the firings, no one is talking about the hirings. That’s what Goodling was trying to get across.

The key: at the Pearl Harbor Day massacre, they replaced one of the prosecutors with Rove-bots, a sleeper cell of anti-Constitutional saboteurs who will explode in 2008, led by the new prosecutor for Arkansas, Tim Griffin.

JD: Talk a little bit about the relevance of Tim Griffin — the perp who became prosecutor — and Arkansas in 2008.

GP: It was Griffin who directed the “caging” ops for the GOP. Caging, by the way, is illegal. Law Professor Bobby Kennedy pointed out it violates the Voting Rights Act of 1965 — and I’d add, as a former racketeering investigator, mail fraud statutes. So Griffin’s a felon — now U.S. Attorney.
 

I have a question. Even though Monica G. received immunity in exchange for her testimony, can't she still be prosecuted for perjury if she is shown to be lying in her testimony? And wouldn't that void her immunity agreement?
 

She CAN be prosecuted for perjury -- not sure what that does to her immunity agreement though -- which is why I think she testified truthfully (see UPDATE above). My question remains even for these civil service jobs where straight political affiliation is not supposed to be a factor in the hiring decision: can Goodling legally ask such a job interviewee whether he / she is a member of the Federalist Society? Can she ask who their favorite Supreme Court Justice is? Can she ask whether he / she is a U.S. citizen?
 

Although DOJ now asserts unequivocally that the civil service laws apply to the appointment of IJs (which would presumably mean they cannot be hired with an eye to partisan considerations such as party affiliation, voting and political contribution history), it's not immediately apparent where in federal law that is specified.

IANAL, so forgive me (after correcting me) if I'm way off, folks.

8 CFR 1001.1 defines an "immigration judge" as an attorney appointed by the AG as "an administrative judge within the Executive Office
for Immigration Review...subject to such supervision and (who) shall perform such duties as the Attorney General shall prescribe..."

5 USC 2302 prohibits the use of political affiliation in hiring decisions for any covered position, which includes competitive service positions, career appointees in the Senior Executive service, or a position in the excepted service, unless it has been specifically excluded from coverage by dint of Presidential decree or the confidential policy-making nature of the position.

In the revision notes for 5 USC 3105 ("Appointment of Administrative law judges"), it says "The words “Subject to the civil service” are omitted as unnecessary inasmuch as appointments are made subject to the civil service laws unless specifically excepted."

In short, unless there's a specific statute that excludes immigration judges from coverage under 5 USC 2301-2, the appointments do seem to be subject to the civil service rules. Wading through the code, I'm not really sure where anyone could get a contrary opinion.
 

Supposedly, Daniel Levin indeed came to a contrary opinion. My questions remain whether 5 USC 2302 prohibits "Are you a member of the Federalist Society?" etc.
 

Charles,

IANAL, but I do know that in the private sector, asking indirect questions to determine information that can be used to discriminate against protected classes is also frowned upon by HR departments, if not outright prohibited.

Of course, IIRC, if you had asked Arne a few years back if he was a member of the Federalist Society (in order to discreetly determine if he was a good conservative) you may have been shocked with what you got if that was your sole criterion.
 

Charles writes: My questions remain whether 5 USC 2302 prohibits "Are you a member of the Federalist Society?" etc.

I'm taking a late lunch so I had time to pull the relevant volume of the U.S. Code off the library shelf.

If we are talking about a violation of 5 U.S.C. 2302(b)(1)(E), that paragraph prohibits discriminating in personal actions related to covered positions based on political affiliation. I don't see how any question would be a prima faci violation of this provision. Instead, the questions provide evidence of discrimination. The further that the question moves from soliciting information about political affiliation, the weaker the evidence would be.

I don't practice in the field of labor law though; I just pulled the title off the library shelf.

Note: 5 USC 2302(b)(1)(E) requires that the discrimination be "prohibited under any law, rule, or regulation." The other law that applies here (and I am not sure what it is) may tell us more.
 

Thanks, that's what I thought. The QUESTIONS, or even online research on candidates, are not prohibited -- discrimination is what's prohibited -- obviously, the problem comes up if Goodling is asking these questions and someone answers "no" and doesn't get hired.
 

Supposedly, Daniel Levin indeed came to a contrary opinion. My questions remain whether 5 USC 2302 prohibits "Are you a member of the Federalist Society?" etc.

Typically, an HR person would ask a question like "to what professional organizations do you belong?" So, it's more or less a legal question.

However, if the political leaning inferred from those sorts of questions are used as criteria of evaluation in the hiring process, I think that yes, it would be illegal under the limited amount of statutes and code that I've researched.

selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity.

Nothing in there about favorite justices or political alignment at all.

Note that Goodling didn't claim to have asked a couple of irrelevant politically-oriented questions and let it drop. Rather, she said explicitly that she "took political considerations into account in making recommendations for positions as Immigration Judges and members of the Board of Immigration Appeals."

Based on my awe-inspiring minutes of research, her action would seem to be clearly illegal.

I'd love to see what justification Levin has/had for excluding IJs from the civil service rules.

Maybe he'll announce that he said no such thing?
 

Charles: It doesn't matter how the person answers though. The statute prohibits discriminating "for or against" based on political affiliation. Also, even if the person refuses to answer, the mere asking of a question designed to elicit information about party affiliation provides evidence of the questioner's discriminatory intent.
 

Charles: Also, while I think your point is technically correct, online research into political affiliation strikes me as highly damning evidence of discrimination. Would you want to stand in front of a jury and try to convince them that your client googled the candidates to see if they were Republicans but never used that information to discriminate? I certainly wouldn't.
 

PMS:

Even if Daniel Levin denies it, that's just one more thing Goodling is pegging on Kyle Sampson. You (and QuiteAlarmed) have a good point that no interviewee should ever be asked these questions. I'd go right to the Federalist Society member lists (although we all know in John Roberts' case, that was not completely reliable) and other indepedent sources. For instance, you can easily verify anyone's party registration e.g. www.voterlistsonline.com (although Arizona and Pennsylvania records cannot be directly downloaded). Of course, I'm not in charge of hiring Immigration Judges ; )

QuiteAlarmed:

No, but we don't get to pick and choose our facts, do we?
 

I think what was MOST shocking from Goodling's testimony was that Gonzales may have tampered with witnesses -- something we accused Clinton of doing with Betty Currie IIRC -- as I've always stated, my role is the devil's advocate here. But if Gonzales actually broke the law, I will be glad to call for his resignation and/or impeachment as well.
 

my role is the devil's advocate here

Really? I thought that Mr. DePalma had elected to proceed pro se.
 

ha ha, very funny.
 

somehow, I almost find evidence of Gonzales witness tampering the least shocking revelation in this whole clusterfuck of incompetent, arrogant, power mad robber barons.

can't you just imagine his earnest, wholesome, wide-eyed chipmunk face pressed close to Ashcroft's ear, counseling softly, "just sign the paper, John."
 

Well, if nothing else Gonzales has done is illegal, I'd have to say an indictment on witness tampering would be the most serious allegation to date. Maybe we just have different "shock" levels.
 

18 USC 1512 makes it a federal crime for anyone to use intimidation or physical force to threaten another person with intent to influence the testimony of a witness. A person can be found guilty of this offense only if all of the following facts are proved beyond a reasonable doubt:

1) That the witness was scheduled to be a witness in court;

2) That the person used intimidation/physical force against such witness; and

3) That the person did so knowingly and willfully with the intent to influence the testimony of the witness.

To act with intent to "influence" the testimony of a witness means to act for the purpose of getting the witness to change or color or shade his or her testimony in some way;
 

i found more shocking that he deliberately created a dysfunctional appointment system that allowed KKKarl to plant operatives throughout the DOJ to help suppress the vote, pursue Dems and lay off Thugs.

that he would attempt to suborn perjury from monica goodling i take as a given.

the man has no integrity.

"john, the president needs this... your country needs this, john... sign the papers...." Alberto Gonzales
 

As I said, we have different "shock" levels then.
 

that we do.
 

if Karl Rove really was staffing/stuffing the Department of Justice with young, right-wing, ideologues without sufficient experience, and in many cases competence, with the deliberate intention of turning them loose on the Democrats to bolseter Republican Candidates, would you agree that he broke the law and should go to jail?
 

do you think removing Carol Lam as a USA was a good thing given her ongoing corruption investigations?

i'm curious.
 

You have a specific USC cite in mind?
 

As for Carol Lam, I expect those professional career prosecutors to follow any corruption charges where ever the evidence leads, regardless of party, and regardless of who the head U.S. Attorney is in that office. You know, just like when Clinton replaced the U.S. Attorney looking into Dan Rostenkowski (of course, Clinton eventually signed a late-night pardon for Dan, but I assume I will have to remind people of that too once Bush pardon's Libby ; )
 

i dont wanna argue about the law.

i just want to ask if you see anything wrong with Karl doing that or conversely if you think its a good thing for America.

i imagine that somehow, some way whether the courts conclude that the civil service laws apply or not, bush will look about as good as he will when its confirmed he called Mrs. Ashcroft to set up the meet.
 

you didn't say whether you supported the removal of Carol Lam as USA.
 

Based on the complaints I've seen, I have no problem with Carol Lam being replaced. Also, you asked me if I "agree that [Rove] broke the law and should go to jail" but you don't want to argue about the law? Make up your mind . . .
 

That's another thing that's different about us. When I bring up a charge like "witness tampering" I actually cite to 18 USC 1512(b) above in case anyone wants to intelligently discuss the issue. That's O.K. though. We are just different like that.
 

carol lam was deeply involved in pursuing one of the largest corruption scandals in Congressional history.

to sack her due to a lack of committment on immigration or gun crimes is ridiculous.

your interpretations of the law are not worth debating.

your notions of right and wrong are what's shocking.
 

I wonder about other prongs of the strategy to remake the justice department and courts which this administration brought into action beginning in the first term. Clearly there was such a strategy; witness the early declaration barring ABA's then-standing-committee on supreme court nominations from inputting into compilation of the first list, relegating admission of those recommendations to the final candidate(s). There is a diverse fabric of contexts in which people become judges. Given Goodling's divulgations about the immigration court judgeships' being a part of the [overstrike] voter fraud[/overstrike] remake the courts plan, I would expect to discover, as more information on the immigration courts politicization appears in the press, other as yet undiscovered parts of the administration's efforts to politicize subsets of the courts which had been apolitical traditionally, at least nominally. Already there is discussion of the US attorney purge in one resource rich upper midwest state being part of this [overstrike]voter suppression[/overstrike] political remake of advocacy and the courts plan.
 

See the story in today's Los Angeles Times: "Immigration judges lack apt backgrounds
A growing number of the jurists have little or no experience in that area of law. Some have strong Republican resumes"

http://www.latimes.com/news/politics/la-na-usattys26may26,0,7211442.story?coll=la-home-center
 

Based on a long and painful experience with attorneys, when you ask a lawyer if they think what they did was right or wrong and they answer "I did nothing illegal." -- you know at the very least they've done something they should be ashamed of, and that they know it.

That "nothing illegal" or "nothing much illegal" was done will be a fine epitaph for this administration.
 

"Note that Goodling didn't claim to have asked a couple of irrelevant politically-oriented questions and let it drop. Rather, she said explicitly that she "took political considerations into account in making recommendations for positions as Immigration Judges and members of the Board of Immigration Appeals.""

"Based on my awe-inspiring minutes of research, her action would seem to be clearly illegal."

"# posted by PMS_Chicago : 2:13 PM"

In view of the fact that the DOJ responded to her claim that she'd been told (cum laude, and she didn't ask to read the opinion for herself?) it wasn't illegal to apply political criteria, her admission of having done so raises several possibilities:

1. It's illegal.

2. It was and is uncertain, but it may be, or be found to be, illegal.

3. Bushit decreed it legal; but that stems, as so much else with his actions, from a nub of illegality.

So her lawyer has her playing it safe by admitting that which will likely be found by investigation.

But let's not pretend she didn't know at the time that there was at least a question about its legality.

And why does Samson -- the vicious facial cast -- remind me of Erlichman?
 

"Based on the complaints I've seen, I have no problem with Carol Lam being replaced. Also, you asked me if I "agree that [Rove] broke the law and should go to jail" but you don't want to argue about the law? Make up your mind . . ."

"# posted by Charles : 7:53 PM"

I'll bite: what complaints have you seen from a _credible_ source?
 

Garth:

Fine with me. If anyone else wants to discuss 18 USC 1512(b) or any other alleged lawbreaking by the Attorney General, please let me know.

JohnLopresti:

Please provide even ONE example of a Republican being nominated by Clinton for federal District, Appeals, or Supreme Court Justice. If the ABA was consistently refusing to qualify DEMOCRATS, would it be O.K. to ignore them then?

JNagarya:

Is a United Stated Congressman NOT "a _credible_ source" just because he's a Republican? The ABA is looking for a few good people just like you.
 

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