an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Ms. Goodling said that in the course of her five years at the Justice Department, she interviewed hundreds of job applicants, most of them for positions subject to partisan political appointment. “But some were applicants for certain categories of career positions,” she went on, alluding to workers who are supposed to function free of naked political considerations.
“In every case, I tried to act in good faith, and for the purpose of ensuring that the department was staffed by well-qualified individuals who were supportive of the attorney general’s views, priorities and goals,” she said, before acknowledging that she might have gone too far in asking overtly political questions of some career applicants.
But Representative Bobby Scott, Democrat of Virginia, was not satisfied. “Did you break the law?” he asked. “Is it against the law to take those considerations into account?”
“I believe I crossed the line, but I didn’t mean to,” she replied. [emphasis added]
Translation: "I now realized that I in fact violated the law, but even if I weren't guaranteed immunity from prosecution, I would still be protected by the fact that 'I didn't mean to.'"
What, precisely, does this mean? How often does the DOJ's criminal division take a pass on prosecuting a non-immunized law-breaker on the grounds that he/she "didn't mean to" violate rather clear federal law? The Civil Service Act, after all, goes back to 1886, and it is a fundamental building block of the modern bureaucratic state that depends on some distinction between crass politics and bureaucratic competence. I know that mens rea is usually a requirement for criminal liability, but can anyone take seriously the "I didn't mean to" defense as rejection of adequate mens rea? I don't teach criminal law, so I am more than ready to stand corrected by my betters on this point. An aside: the most interesting part of the District Court's decision in the 2001 Emerson case on gun rights was its willingness in effect to make ignorance of an obscure part of federal law (the illegality of firearms possession by anyone who had been served with a restraining order in a domestic violence case) an excuse. Perhaps it is understandable that most of the attention went to the Second Amendment part of the opinion, but the claim that Due Process protects someone who is reasonably ignorant of the law is of far greater importance, both theoretically and practically. But even if one is sympathetic to limiting de facto strict liability in the modern administrative state, shouldn't a "qualified lawyer" working for the United States Department of Justice be expected to be aware of basic civil service statutes?
One wonders how seriously the "I didn't mean to" defense would be taken if the person articulating it were, say, a 50-year-old non-immunized male who had taught constitutional law in Arkansas and, indeed, had been Attorney General of the State to boot. And I recall that an even dowdier Arkansan who had been Deputy Attorney General of the United States actually went to jail for violating federal criminal law. But perhaps "we" expect less of an attractive 33-year-old with long-flowing blonde hair (check out the picture accompanying the Times story) who graduated from Regent Law School. (Is this another example of the "tyranny of low expectations"?) (One can also count up the number of invidious stereotypes that may or may not be working to Ms. Goodling's detriment/advantage in her debut as a public figure.)
So, she didn't MEAN to !?? While intent might go to mitigation of punishment, like ignorance, it is not a justification for the abuse of power or the abrogation of responsibility to something more lasting and important than the current maladministration.
Can someone please tell me precisely which criminal statute is allegedly violated by taking political affiliation into account in hiring decisions? I have looked and don't see one, but admittedly this is not my practice area. 18 USC 600 and 601 come close -- they appear to criminalize any attempt to use the promise of a federal job (or threat to deprive someone of a federal job) in order to obtain someone's vote or other political activity, but I don't see how it covers what Goodling admitted to. Can someone clarify?
By the way, I find Goodling's admission to be reprehensible and ample reason why she should have been fired. It's the allegation that this activity was criminal that I've yet to see adequate support for, and I do think it's important not to throw that accusation around lightly.
Can someone please tell me precisely which criminal statute is allegedly violated by taking political affiliation into account in hiring decisions?
Could one make a case that it falls under the "color of law" prohibition in Title 18? Given that 5 USC 2302 prohibits discrimination in hiring on the basis of political affiliation, could you say that it extends protection to all competitive service employees? If so, wouldn't 18 USC 242 make such discrimination a criminal act--especially if it were the "custom" of the DoJ to discriminate on the basis of political affiliation (as I believe Goodling said elsewhere).
Though I'm not sure what mental state is required to charge someone with violations of the civil service laws, I do believe that the concept of mens rea is not at issue. Speaking very loosely and in general, Goodling would not have had the mens rea to violate these laws had she committed the prohibited acts but without the requisite intent to bring about the natural consequences of those acts. But she's not claiming that. Rather she has said that she did not mean to violate the law - not that she didn't mean to commit the prohibited acts or bring about their consequences. Upshot - she claims she was ignorant of the law, not that she was ignorant of the meaning and import of her conduct. That's not, generally speaking, a defense either in civil or criminal court, or, for that matter, in the court of honest public opinion.