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Justice, Bush-Style | The Nation

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Justice, Bush-Style

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CHARLES DHARAPAK/APFormer Attorney General Alberto Gonzales with President George W. Bush, May 4, 2007

About the Author

Andrew Gumbel
Andrew Gumbel is the author of Steal This Vote: Dirty Elections and the Rotten History of Democracy in America (Nation...

Also by the Author

2008 will go down as a year activists were able to keep a rotten electoral system honest.

It's clear that efforts to protect voters rights are working this time--in Virginia, Florida and Ohio.

Research support for this article was provided by the Puffin Foundation Investigative Fund at The Nation Institute.
 

In 2002 conservative political journalist John Miller wrote an extraordinary call to arms in which he declared open season on the civil rights division of the Justice Department. This was the division that, for close to fifty years, had been dedicated to erasing the legacy of Jim Crow and protecting the rights of minority voters.

"There may be no part of the federal government where liberalism is more deeply entrenched," he fulminated in the National Review. Then he sketched out how conservatives could reclaim it for themselves. His jeremiad was headlined Fort Liberalism: Can Justice's Civil Rights Division Be Bushified?

Six years on, we know the answer painfully well. What makes Miller's piece so extraordinary is that nearly every one of his proposals was implemented. "Republicans should work to gain more control over the civil rights division and its renegade lawyers," he wrote. Check. "The administration should permanently replace those it believes it can't trust," including senior career section chiefs. Check. "Republican political appointees should seize control of the hiring process." Again, check.

To the extent that Miller injected any note of caution, his prescription was exceeded. "They [Republican political appointees] don't need to make sure every new lawyer is a member of the Federalist Society," he suggested. "Simply hiring competent professionals who don't come from left-wing organizations would be an enormous improvement." In fact, the ultraconservative Federalist Society quickly became a favored recruiting ground--twenty-seven out of twenty-nine members who applied in 2002 were granted interviews, according to a report from Justice's inspector general--while lawyers affiliated with more progressive organizations were roundly snubbed.

At the same time, Republicans at the Justice Department became so zealous in the pursuit of their political aims that competence went out the window, along with any sense of caution. Instead of simply correcting a perceived imbalance, they ripped up the professional integrity of the department like no presidential administration in memory and hobbled its much-prized independence--in the civil rights division and just about everywhere else.

A startling flurry of inspector general reports--including one released September 29 focusing on the US Attorney firing scandal--along with the testimony of former Justice staffers interviewed at length by The Nation, paint a detailed picture of how a once-proud government department came to teeter on the brink of a nervous breakdown. With the presidential election looming, the consequences of pervasive politicization could be profound, as the department's rules of engagement in the electoral process have been completely remade to allow a much greater degree of direct interference.

"They have destroyed the internal culture of the Justice Department as a restraint on the executive branch," said Bruce Fein, a prominent Washington constitutional lawyer who cut his teeth at Justice during the Watergate scandal and later served as a political appointee under Reagan. "There's no professional insistence on treating law and politics separately. It's all one."

Gerry Hebert, a former head of the voting section who now lobbies for greater professional accountability at the Justice Department through the nonprofit Campaign Legal Center, confirmed this view: "To see what's been done to the department is one of the most tragic things in my professional career."

The devastation has been profound. Bush loyalists have crammed key positions and even rank-and-file trial lawyer posts with unqualified conservative ideologues interested only in carrying water for the White House. They have put people with little litigation experience in charge of litigating sections; they have rejected top candidates from Harvard, Yale and Stanford and favored an improbable number of alumni from the Regent University School of Law, a conservative Christian school founded by Pat Robertson.

The civil rights division has been the prime target because it has a direct influence on the conduct of elections--and because minority voters skew so heavily toward the Democrats. But the culture of politicization has pervaded the whole department, turning it into little more than a rubber stamp for the White House on hugely controversial constitutional issues, from warrantless wiretapping to the definition of torture.

Apologists for the administration will tell you there is nothing unusual about presidents politicizing the leadership of government departments--after all, Robert Kennedy was the president's brother when he became attorney general. What is different about this Bush presidency, though, is the depth of the shake-up--no administration has tried to install political sympathizers in career posts before, let alone on this scale--and the degree of hostility shown toward career lawyers and their staff.

"The people who came in really had a take-no-prisoners approach," Hebert said. "If you didn't like it, too bad. They had real contempt for the career people, who they saw as left-wing Democrats." As demonstrated in two extensive IG reports published in June and July, the department leadership, under John Ashcroft and Alberto Gonzales, hijacked the honors program, previously used to recruit the best and brightest from the nation's top law schools, and put it in the hands of a political committee that used flagrantly partisan criteria to screen out liberals and promote conservatives, regardless of their experience or credentials.

Once installed, political appointees berated career lawyers whose analyses did not match the appointees' wishes, threatened the lawyers with poor performance evaluations, cut them out of key meetings and, after they left out of sheer frustration, replaced them with people willing to do the appointees' bidding regardless of legal considerations. "This went so far down," said Toby Moore, an analyst in the voting section of the civil rights division who left in early 2006. "Lawyers were either, in their words, 'loyal Bushies,' or they were not."

The new culture even sparked racial tensions and accusations of discrimination within a division tasked with enforcing laws against such practices. Teresa Lynn, a low-level employee who had worked in the civil rights division for thirty-three years when she retired in December 2006, wrote an e-mail to her colleagues in which she said she was leaving "with fond memories of the Voting Section I once knew and...gladly escaping the 'Plantation' it has become."

Another former voting rights section employee, Joi Hyatte, recently filed a discrimination lawsuit in which she alleged that she and other African-Americans were consistently blocked from promotion, even when they were better qualified than other candidates. She accused one of her superiors of downgrading her glowing performance review for no apparent reason and accused another--former voting section chief John Tanner--of failing to discipline newly arrived department lawyers who openly mocked African-Americans. Tanner himself would show up to work in a tie with a cotton-boll motif, which he refused to stop wearing even after union representatives complained that they found it racially demeaning because of its echoes of slavery in the South.

Justice staffer Joe Rich recalled the moment he realized how little regard the new regime had for career people like him. It was March 2001, just a few weeks after George W. Bush took office, and Ashcroft had a big announcement to make. He was launching a new voting rights initiative, under which a beefed-up voting section would monitor elections more closely and crack down on suspected instances of fraud. This idea did not come from Rich, though he then headed up the voting rights section. In fact, he was not even told about the initiative until twenty minutes before Ashcroft announced it to the media.

Ashcroft's key aide at that time was Mark Metcalf, a failed Congressional candidate from Kentucky, who shared his view that if more Republicans did not win elections it was at least partly because they were being cheated out of them. Metcalf soon gave way to Hans von Spakovsky, a Georgia lawyer who had been part of the Voting Integrity Project, a group that produced the notorious, error-riddled felon purge list in Florida for the 2000 election, which disenfranchised thousands, if not tens of thousands, of eligible African-American voters. Spakovsky, who left the department in 2005, was awarded a job as a consultant to the Commission on Civil Rights.

Spakovsky was interested in policing the eligibility of voters--something he presented as a necessary anti-fraud mechanism but that has long been favored by Republicans interested in nibbling away at the Democratic Party base. In 2002 he managed to sneak a modest ID provision into the Help America Vote Act--making it mandatory for first-time voters who register by mail to produce a government identification document.

At this point, the rot had not fully set in. The assistant attorney general in charge of civil rights was Ralph Boyd, a serious lawyer from Boston who listened to Rich and his career colleagues even if he often overruled them. Ashcroft, though, was putting the wheels in motion--most notably with his decision to scrap the panel of career lawyers responsible for new hires and replacing it with a politicized working group tasked with "correcting" the department's perceived liberal bias.

Thanks to the June IG report, we now know the results with some scientific precision. Already in 2002, the department's screening committee deselected 80 percent of applicants with liberal affiliations but just 9 percent of applicants with conservative affiliations. While Federalist Society members got the red carpet treatment, all seven applicants who were members of the progressive American Constitution Society were deselected. In 2006, after complaints about politicization had been loudly aired, liberal candidates were still being turned down at three times the rate of conservative ones.

Monica Goodling, the former deputy director of public affairs at Justice under Ashcroft and Gonzales, was perhaps the most notorious recruiter in this period; she once asked a candidate if he had ever cheated on his wife. On other occasions, according to the July IG report, Goodling questioned candidates on their Republican credentials, asking, "What is it about George W. Bush that makes you want to serve him?" Another recruiter, Esther McDonald, weeded out candidates using criteria that had nothing to do with their suitability for the job. She once took a candidate who had been at the top of his class at Harvard out of the yes pile and put him into the questionable pile solely because he was a member of the Council on American Islamic Relations, a Muslim lobby group.

Who did the department hire? "I would describe them as a bunch of yes men," said Lisa Graves, who worked on gun legislation under Ashcroft before leaving the department. "Young people who didn't have a lot of supervision but were given tremendous power. They were true believers who shared the very hardline ideological beliefs of the administration, but they weren't career professionals and had no significant experience." The number of new civil rights division lawyers with previous exposure to the field plummeted from almost 80 percent in 2001 to just over 40 percent.

A striking number of the new recruits came, like Goodling, from Regent University. One Regent grad who joined the civil rights division, Bill Condon, described his hiring experience with disarming honesty for his old school alumni newsletter--acknowledging that "God opened only one door to employment" for him in the last year of law school, a door that just happened to lead to one of the most prestigious posts a young lawyer could land.

As he told it, he was asked in his interview which recent Supreme Court decision he most disagreed with, and he answered Lawrence v. Texas, the 2003 ruling striking down antisodomy laws. "When one of the interviewers agreed and said that decision in Lawrence was 'maddening,'" Condon wrote, "I knew I correctly answered the question."

Many headlines in recent years have highlighted Justice's role in rationalizing the president's controversial strategies in the "war on terror," from warrantless wiretapping to indefinite detentions, military tribunals and torture. But to GOP activists on the inside, it was always primarily about elections.

Ashcroft came to the job having narrowly lost his Missouri Senate seat to a dead man, Governor Mel Carnahan, and believing he may have been cheated by a flood of late voters in Democrat-leaning St. Louis, where a judge kept the polls open past normal hours. From the beginning, he and his fellow Republicans took the view that the Justice Department, particularly the civil rights division, was a cabal of liberals who had held sway for far too long with the help of an approving but biased media. It was certainly true that the civil rights division had not attracted too many hard-core Republicans, because the chief beneficiaries of civil rights legislation, African-Americans in the South, have voted Democratic in overwhelming numbers since the 1960s.

In effect, Bush's ideologues chose to interpret the division's professional commitment to civil rights law as a form of partisanship--as though the law itself represented a sinister liberal agenda. In their view, minority rights had been manipulated to the detriment of Republicans, especially in battleground states like Missouri and Florida. But there was scant evidence to back them up--suggesting a hefty dose of paranoia.

That habit of mind triggered, in turn, a far cruder and far more overt form of political manipulation in the service of the Republican cause. When the career lawyers at Justice objected--as they did, repeatedly--the remedy was to ignore or disparage them until they either fell in line or quit their jobs. The Bush loyalists were happy to let the career lawyers investigate Georgia's 2001 electoral redistricting plan, which had been written by Democrats. However, when it came to Tom DeLay's notorious off-year attempt to redraw the electoral map of Texas in the Republicans' favor two years later, the civil rights division was hands-off. The career lawyers pointed out, as was their job, that the DeLay plan had potentially harmful consequences for minority voters. But their objections were ignored.

Until the Texas redistricting episode, Joe Rich had successfully run interference between his staff and the political appointees, but that changed rapidly when Bradley Schlozman became his boss as deputy assistant attorney general in charge of civil rights. Schlozman, a strikingly underqualified lawyer from Missouri who rose precipitously to the top of the ranks thanks to his political connections, eventually went on to serve as an interim US Attorney, replacing a Missouri federal prosecutor pushed out in the Gonzales purge. Rich described him as "without a doubt the most difficult, vindictive person I've ever worked for"--a view many of his career colleagues came to share. Schlozman gave more and more responsibility to Spakovsky--seats on key committees, responsibility for minority-language issues--while reprimanding Rich, giving him bad performance ratings and downgrading the performance reviews of his staff. Rich eventually left in 2005.

One of the things Schlozman and other new managers did was slash the number of staffers working on so-called Section 5 cases--fulfilling the department's mandate to review changes in state electoral laws and district boundaries for any serious discriminatory effect on African-Americans or other minorities. Rich said civil rights analysts in this unit dropped from twenty-five to about ten, effectively shooting it "to hell."

When staffers managed to pull off a critical review, as they did with Georgia's voter ID law in 2005, their findings were disregarded by the political leadership at Justice responsible for deciding whether to take corrective action. Five Justice staffers looked at the law, and all but one--Joshua Rogers, a Republican appointee placed in a career position--concluded that it infringed upon the voting rights of African-Americans. "Even if you support the idea of voter ID, that was not the way to do it," said Toby Moore. "It was such a bad law." No matter--the law got Justice clearance, even though it was later ruled unconstitutional in a Georgia court.

That was when things got nasty. Rogers was nominated for an award, and everyone else was told they weren't doing their jobs properly. When one career lawyer, David Becker, came under suspicion for leaking information to people outside the department, his superiors rooted through his e-mails and threatened him with disciplinary proceedings, even a possible petition to have his license revoked. Since Moore had received e-mails from Becker, he too had his e-mail account searched and found himself the subject of an official ethics complaint. Both men were eventually cleared of wrongdoing but chose to leave their jobs.

Slowly, it all began to unravel. John Tanner, then head of the voting section, was caught on YouTube making outrageous, and arguably racist, justifications for the Georgia law and was forced to resign in December 2007. Spakovsky exposed his ignorance of legal protocol when he drafted an unsolicited letter to an Ohio judge on the eve of the 2004 election saying Justice had no problem with a plan by state Republican officials to challenge voter eligibility using a notorious voter-suppression method known as "caging." This violated the most basic procedural rules in the book, since the Justice Department doesn't communicate directly with judges. And the US Attorney scandal exploded onto the front pages in early 2007, with at least two and possibly three of the Attorneys fired by Gonzales--David Iglesias of New Mexico, John McKay of Seattle and, it seems, Todd Graves of Kansas City--losing their jobs because they did not go after alleged voter fraud cases with the expected zeal.

The tide may finally be turning. Schlozman and Spakovsky have been pushed out of the department. The current attorney general, Michael Mukasey, claims that the damage these men caused has been largely repaired. The hiring process has been substantially depoliticized, he says, and serious career professionals are once again in place as section heads. Mukasey has done little or nothing, of course, to weed out the ranks of Republican foot soldiers already appointed to lower-level department jobs. Still, most observers give him some credit for cleaning up the most embarrassing parts of the mess.

Nagging questions remain, however. The Republicans have literally rewritten the rule book on pursuing election-related prosecutions. It used to be a matter of professional honor never to make any move or announcement that risked affecting the outcome of a vote. But the new rules, issued last year, merely caution prosecutors "in most cases" to hold off from launching fraud-related investigations until an election is over--in other words, leaving the judgment to the discretion of individual US Attorneys.

The new rules also leave open the possibility of election-eve inquiries into voter registration drives, and they declare open season even on isolated instances of individual voter fraud--a problem once viewed as too insignificant to be worthy of federal involvement.

All this is an invitation to election-tampering by Justice staff come November. As Gerry Hebert put it, "One can easily imagine cases in 2008 where individual voters are indicted in the days just before the election and the indictments are highlighted with a DoJ press release, and immediately followed by a press release of a political party championing the indictments." This is, in fact, exactly what happened in 2006 in Kansas City. Schlozman indicted voter registration activists from ACORN, the low-income advocacy group, just days before the election, and the episode was immediately seized upon by the state Republican Party, which was fighting tooth and nail to hold on to Jim Talent's Senate seat. It wasn't enough to win the Republicans the election, but that was clearly its intent.

Several of the former career staffers said they expect to see widespread challenges to voter registration groups in the run-up to November, and to individual voters on election day in Democrat-heavy precincts--and suspect that some of those challenges could be backed by the Justice Department. ACORN is taking no chances this time--checking and rechecking the validity of the registration forms it collects, intensifying fieldworker training and sitting down with local election officials to avoid needless antagonism.

But it's also a question of what the department doesn't do. If it does nothing to deter voter intimidation, or to thwart attempts to suppress the minority vote through caging and other techniques, that could be as damaging as launching prosecutions, according to Kristen Clarke, director of the NAACP Legal Defense Fund's political participation group. "We've seen [these tactics] in the past," she said. "We can expect to see them again in November." She worries that if Justice cuts back the number of staffers sent to the Deep South, say, or if it sends in federal prosecutors on the lookout for voter fraud rather than lawyers from the civil rights division charged with protecting the right to vote, that could send a strong signal to those seeking to suppress the black vote.

"There is absolutely a role for the department to play to prevent the potential disenfranchisement of voters," Clarke said. "But it's unclear at this point what the department will do."

No matter what happens in November, the new administration will face the task of undoing the damage inflicted during the Bush years. Institutionally, the department may never have been at such a low ebb. "The department used to be such a beacon," said Melanie Sloan, a former prosecutor and the director of the anticorruption group Citizens for Responsibility and Ethics in Washington. "If you were a Justice Department lawyer, the assumption was you must be good and smart. That's not true anymore."

Perhaps surprisingly, most career lawyers do not think it will be too hard for the new administration to flush out the political hires catapulted into career positions. It is true that these people cannot be fired, but the consensus appears to be that if a new attorney general appoints a few well-chosen section heads, they could induce most of the dead-weight lawyers to leave before their incompetence leads to potentially career-killing performance reviews. Those who stay could be penned in. "In any bureaucracy, 10 percent of the people do 90 percent of the work," said a lawyer close to the Obama campaign. "If people don't leave, you can just assign them to sorting paper clips." But an attempt like this to clean house is likely to attract its own share of accusations of politicization--raising the question of how the department can hope to restore its reputation for professional adherence to the law.

Other Bush-era changes may have more staying power. Even if a President Obama ditched the official endorsement of waterboarding or restored the full authority of the FISA courts--far from certain--it is less likely that he would willingly give up all the expanded executive powers established during the Bush years and endorsed by Justice's Office of Legal Counsel. Career lawyers suggest that even relatively modest steps, like restoring the old policy of maximum openness when handling Freedom of Information Act requests, might face more resistance from Obama than some of his supporters would like to think.

The next president will inherit a Justice Department that has fatally lost its independence from the White House. It used to be that only three Justice Department officials--the attorney general, his chief of staff and his deputy--were allowed to talk to the White House, the idea being to avoid the appearance and real risk of a conflict of loyalties on tough legal issues.

Bill Clinton loosened that policy a little, and George W. Bush turned the trickle into an avalanche: at one point more than 900 people were authorized to talk to either the White House or other officials from the executive branch. Gerry Hebert calls this "a recipe for disaster."

We've seen the consequences under this administration. Not only has the Justice Department been toothless in restraining Bush's wilder ambitions; it has also acquiesced in his decision to ignore subpoenas from Congressional oversight committees, hobbling efforts to expose illegal behavior by government officials. "On that theory," Bruce Fein said, "Nixon could have muzzled John Dean, and we wouldn't have cracked Watergate."

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