Report Into Politicized Hirings by AG and DOJ Offices, OIG, 2008

Report Into Politicized Hirings by AG and DOJ Offices, OIG, 2008

• Feb. 12, 2016 • Locations: United States of America • Topics: Misconduct/Corruption, Prosecutor/Attorney General Misconduct, Attorneys, District Attorneys

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U.S. Department of Justice

An Investigation of Allegations of
Politicized Hiring by
Monica Goodling and
Other Staff in the Office of the
Attorney General

U.S. Department of Justice
Office of Professional Responsibility

U.S. Department of Justice
Office of the Inspector General

July 28, 2008

TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................ i
CHAPTER ONE INTRODUCTION................................................................. 1
I.

Scope of the Investigation.................................................................. 1

II.

Methodology of the Investigation ....................................................... 2

III.

Organization of this Report ............................................................... 3

CHAPTER TWO BACKGROUND .................................................................. 5
I.

Monica Goodling ............................................................................... 5

II.

Kyle Sampson ................................................................................... 6

III.

Susan Richmond and Jan Williams................................................... 7

IV.

Department Components and Personnel ........................................... 7

Hiring Standards ............................................................................ 11
A.

Department Career and Political Attorney Positions ............... 11

Legal Standards..................................................................... 12

CHAPTER THREE GOODLING’S ROLE IN DEPARTMENT HIRING............. 17
I.

Interview Questions ........................................................................ 18

II.

Internet Research............................................................................ 20

III.

Employment Forms......................................................................... 22

IV.

Reference Checks............................................................................ 23

CHAPTER FOUR EVIDENCE AND ANALYSIS: PERMANENT CAREER
ATTORNEY HIRING DECISIONS...................................................... 25
I.

Interim U.S. Attorney Waiver Requests to Hire Career AUSAs .......... 25
A.

Screening Waiver Requests .................................................... 28
1.
2.
3.

The USAO for the District of Columbia ......................... 29
The USAO for the Western District of Missouri ............. 30
The USAO for the Western District of Washington ........ 32

II.

Recent Changes in the Waiver Process ................................... 35

Analysis................................................................................. 35

Other Career Attorney Positions ...................................................... 37
A.

The USAO for the District of Columbia................................... 37

The USAO for the District of Colorado .................................... 39

EOUSA Deputy Director Position ........................................... 40
1.
2.

III.

EOUSA Deputy Director Candidate #1.......................... 40
EOUSA Deputy Director Candidate #2.......................... 44

Conclusions Regarding Candidates for Career Positions .................. 45

CHAPTER FIVE EVIDENCE AND ANALYSIS: CANDIDATES FOR
TEMPORARY DETAILS.................................................................... 47
I.

II.

Goodling ......................................................................................... 47
A.

Candidate #1 ......................................................................... 48

Candidate #2 ......................................................................... 50

Candidate #3 ......................................................................... 52

Candidate #4 ......................................................................... 53

Candidate #5 ......................................................................... 54

Candidate #6 ......................................................................... 54

Candidate #7 ......................................................................... 57

Candidate #8 ......................................................................... 59

Conclusion ............................................................................ 59

Richmond and Williams .................................................................. 60
A.

Candidate #9 ......................................................................... 61

Candidate #10 ....................................................................... 64

III.

Recent Changes in the Detailee Selection Process............................ 65

IV.

Analysis .......................................................................................... 65

CHAPTER SIX EVIDENCE AND ANALYSIS: IMMIGRATION JUDGE AND
BOARD OF IMMIGRATION APPEALS MEMBER HIRING
DECISIONS..................................................................................... 69
I.

Immigration Judges and Board of Immigration Appeals Members.... 69
A.

The Executive Office for Immigration Review .......................... 69

II.

III.

Immigration Judges............................................................... 70

The Board of Immigration Appeals ......................................... 70

Department of Justice Policy ................................................. 71

Process for Hiring Immigration Judges ............................................ 71
A.

The Process Prior to Spring 2004 ........................................... 71

The Office of the Attorney General Considers Changes to the
Process.................................................................................. 73

Last Occasion in Which EOIR Played a Role in Selecting
Immigration Judges............................................................... 75

The Office of Legal Counsel .................................................... 77

The Immigration Judge Appointment Process Implemented
by Sampson........................................................................... 81

Sampson’s Recommendations to EOIR ............................................ 83
A.

Sources for Immigration Judge Candidates ............................ 83

Candidates Provided to EOIR by Sampson ............................. 85
1.
2.
3.
4.
5.

C.
IV.

Candidate Supported by Karl Rove ............................... 85
Candidates Provided by the White House...................... 86
Recommendations from Republican Members of
Congress ...................................................................... 87
Candidates Hired Without EOIR Interviews .................. 88
Other Candidates Selected by Sampson........................ 90

Problems Created by the New Hiring Process ......................... 91

Williams’s Recommendations to EOIR ............................................. 92
A.

Sources for Immigration Judge Candidates ............................ 93

Candidates Provided to EOIR by Williams .............................. 94
1.
2.
3.
4.
5.

The White House Seeks to Place “Priority Candidates” .. 94
Candidates Solicited from a Civil Division Political
Appointee..................................................................... 95
EOIR Requested Immigration Judges............................ 96
Candidates Selected by Williams who had also Applied
Through the Vacancy Announcement ........................... 97
Additional White House Candidates Provided to EOIR... 98

The Direct Appointment Process Continued to Affect EOIR..... 99

Search Terms for Screening Candidates ................................. 99

iii

Goodling’s Recommendations to EOIR........................................... 101
A.

Sources for Immigration Judge Candidates .......................... 102

Political Screening by Goodling ............................................ 103
1.
2.

VI.

VII.

Candidates Considered for Career and Political
Positions .................................................................... 103
Candidates Provided to EOIR by Goodling .................. 104

Increasing Vacancies for Immigration Judges ...................... 106

Screening of Candidates by Immigration Judges in Florida .. 108

Candidates Selected by Goodling for Positions on the Board
of Immigration Appeals ........................................................ 110

The Hiring Freeze ................................................................ 112

The Current Process for Hiring Immigration Judges and Board of
Immigration Appeals Members ...................................................... 114
A.

Immigration Judges............................................................. 114

Board of Immigration Appeals Members............................... 115

Analysis ........................................................................................ 115
A.

Kyle Sampson...................................................................... 117

Jan Williams ....................................................................... 118

Monica Goodling.................................................................. 121

EOIR Director and Deputy Director...................................... 122

CHAPTER SEVEN OTHER ISSUES ......................................................... 125
I.

John Nowacki ............................................................................... 125

II.

Goodling’s Discrimination Against a Detailee on the Basis of Sexual
Orientation ................................................................................... 128
A.

EOUSA Detail ...................................................................... 128

SMART Detail ...................................................................... 130

Detail to Office of Violence Against Women .......................... 132

Analysis............................................................................... 132

CHAPTER EIGHT CONCLUSIONS AND RECOMMENDATIONS................ 135

CHAPTER ONE
INTRODUCTION
I.

Scope of the Investigation

In March 2007, the Office of Professional Responsibility (OPR) and the
Office of the Inspector General (OIG) began a joint investigation of
allegations that in 2006 several United States Attorneys (U.S. Attorneys)
were forced to resign for improper reasons, including improper political
purposes. We also received an allegation that Monica Goodling, the
Department of Justice’s (DOJ or Department) White House Liaison and
Senior Counsel to the Attorney General, had discriminated on the basis of
political affiliation against a candidate for a career position as an Assistant
United States Attorney (AUSA). We therefore expanded our investigation to
include the allegation that Goodling inappropriately used political or
ideological affiliations in the hiring process for career Department
employees.
On May 23, 2007, Goodling testified before the United States House of
Representatives Committee on the Judiciary pursuant to a grant of
immunity issued by the United States District Court for the District of
Columbia. In both her written statement and verbal testimony, Goodling
acknowledged that she took political considerations into account in
assessing candidates for career positions in the Department. Goodling
described three categories of such positions.
First, Goodling stated that “[i]n a very small number of cases
[regarding AUSAs], I believe that my decisions may have been influenced in
part based on political considerations.” 1
Second, Goodling stated that “[i]n some cases, I learned and
considered political information” when assessing career attorneys who
applied for temporary detail positions in the Office of the Deputy Attorney
General, the Office of Legal Policy, the Office of the Associate Attorney
General, the National Security Division, and the Executive Office for United
States Attorneys.
Third, Goodling stated that “[i]n reviewing resumes and soliciting
applications [for immigration judges and Board of Immigration Appeals
members] . . . I sometimes took political considerations into account.”
Prepared Statement of Monica Goodling, submitted in connection with her
May 23, 2007, congressional testimony before the Committee on the Judiciary, United
States House of Representatives.
1

Goodling added that Office of the Attorney General (OAG) Chief of Staff Kyle
Sampson had told her that the Office of Legal Counsel had “provided
guidance . . . indicating that Immigration Judge appointments were not
subject to the civil service rules applicable to other career positions.”
Goodling testified that she “assumed” that Board of Immigration Appeals
(BIA) member appointments were also not subject to civil service laws.
As a result of Goodling’s testimony and other information developed
during the course of this investigation, we included in the scope of our
investigation Goodling’s role in the selection and hiring of candidates for
AUSA and other career attorney positions, career attorney details to
Department offices, and immigration judge (IJ) and BIA positions. We also
examined whether Goodling’s predecessors as the Department’s White
House Liaison, Susan Richmond and Jan Williams, and Goodling’s
immediate supervisor, OAG Chief of Staff Kyle Sampson, considered political
or ideological affiliations when assessing candidates for career positions
within the Department. 2
In addition, during our investigation we learned of allegations that
Goodling had discriminated on the basis of rumored sexual orientation
against a career Department attorney who had applied for several temporary
details. We investigated those allegations as well.
Finally, we investigated whether several witnesses to or subjects of
our investigation provided inaccurate or misleading information to us
during our investigation or to other Department officials related to the
issues in this investigation.
II.

Methodology of the Investigation

During the course of our investigation, we interviewed more than 85
individuals, some more than once. Some of these people were also
interviewed in connection with the other joint investigations by our offices.
We also interviewed former Attorney General Alberto Gonzales, former
In addition to this investigation and the investigation of the removal of several
U.S. Attorneys mentioned previously, we jointly investigated allegations that officials
overseeing the Department’s Honors Program and Summer Law Intern Program used
political or ideological affiliations in assessing candidates for those programs. We also
jointly investigated allegations that former Civil Rights Division Acting Assistant Attorney
General (AAG) Bradley Schlozman and others used political or ideological affiliations in
hiring and personnel decisions in the Civil Rights Division. On June 24, 2008, we issued a
separate report describing our findings regarding allegations of politicized hiring in the
Honors Program and the Summer Law Intern Program. We will issue separate reports
describing our findings regarding the removal of several U.S. Attorneys and the Civil Rights
Division when those investigations are completed.
2

Deputy Attorney General Paul McNulty, and numerous current and former
employees of the OAG, the Office of the Deputy Attorney (ODAG), the
Executive Office for United States Attorneys (EOUSA), and the Executive
Office for Immigration Review (EOIR). We also interviewed many individuals
who were alleged victims or beneficiaries of political discrimination in
Department hiring decisions.
Monica Goodling declined our request to be interviewed. Because she
is not currently employed by the Department, we could not compel her to
cooperate.
In addition to our interviews, we reviewed thousands of documents,
including documents from the OAG, ODAG, EOUSA, EOIR, and numerous
U.S. Attorneys’ Offices (USAO). We also reviewed relevant e-mails of
numerous current and former Department employees. We searched the
computer hard drives of several former OAG employees, including Sampson
and Goodling, for documents relevant to this investigation. We also
reviewed the hard-copy documents in Goodling’s and Sampson’s offices after
they resigned from the Department.
We sent a written survey to every person we could identify who was
interviewed by Goodling or others in the OAG for any position from
January 1, 2004, to April 2007, seeking information about their interviews.
The survey asked for information about the positions for which the
candidates applied, who interviewed them, and the kinds of questions the
candidates were asked during the interviews. Of the 484 people to whom we
sent the questionnaire, approximately 300 responded.
III.

Organization of this Report

This report is divided into eight chapters. In Chapter Two, we provide
a factual overview of Goodling’s and Sampson’s duties and responsibilities
while they worked in the Department. We also discuss the duties and
responsibilities of Goodling’s two predecessors as the Department’s White
House Liaison, Susan Richmond and Jan Williams. We briefly describe the
Department components that are discussed in this report, and we identify
the leaders of those components during the relevant time periods. We then
describe applicable legal standards and policies governing the hiring of
career employees by the Department.
In Chapter Three, we describe Goodling’s role in hiring Department
attorneys and the methods she used to evaluate candidates. In Chapters
Four, Five, and Six, we describe our findings and analysis as to whether
Goodling inappropriately considered political or ideological affiliations when
assessing AUSA or other career attorney candidates; whether Goodling,
Richmond, or Williams considered political or ideological affiliations to

assess candidates for DOJ details; and whether Sampson, Williams, or
Goodling considered political or ideological affiliations to assess candidates
for IJ and BIA positions. In Chapter Six, we also discuss whether Jan
Williams provided inaccurate information to our investigators and whether
Goodling provided inaccurate information to Civil Division attorneys
defending a lawsuit involving the selection of IJs.
In Chapter Seven, we discuss several issues that arose during our
investigation, including whether EOUSA Deputy Director John Nowacki
provided senior Department officials with inaccurate information about
whether Goodling had used political or ideological affiliations to evaluate
candidates for EOUSA detail positions, and whether Goodling discriminated
against a detailee candidate on the basis of her alleged sexual orientation.
In Chapter Eight, we provide our conclusions and recommendations.

CHAPTER TWO
BACKGROUND
In this Chapter we describe Monica Goodling’s and Kyle Sampson’s
duties and responsibilities while working in the Department. We also
provide a brief description of the duties and responsibilities of Jan Williams
and Susan Richmond, Goodling’s predecessors as Department White House
Liaisons. We then describe the functions of several Department offices that
were involved in the events we investigated. Finally, we briefly summarize
Department policy and federal law applicable to the hiring of career
employees.
I.

Monica Goodling

Goodling graduated from Messiah College in 1995 and received a law
degree from the Regent University School of Law in 1999. From 1999 to
February 2002, she worked for the Republican National Committee (RNC)
where she held the positions of research analyst, senior analyst, and deputy
director for research and strategic planning. Among her duties was what
she described on her résumé as “a broad range of political research.”
In 2002, Goodling left the RNC to work at the Department, where she
held a variety of political positions. From February 2002 to August 2004
she worked in the Office of Public Affairs (OPA) as, successively, Senior
Counsel, Deputy Director, and Principal Deputy Director. According to
Goodling’s résumé, while at OPA she worked closely with the OAG regarding
public communications about the Department’s work, including media
events, press releases, speeches, and talking points. In September 2004,
Goodling began a 6-month detail as a Special Assistant United States
Attorney in the USAO for the Eastern District of Virginia, where she handled
criminal felony and misdemeanor cases.
At the conclusion of her detail to the USAO in March 2005, Goodling
served in EOUSA as a Schedule C (political appointee) Deputy Director. 3
Goodling worked at EOUSA for 9 months until October 2005. According to
her résumé, her responsibilities at EOUSA included oversight of and
coordination between EOUSA and the USAOs; liaison between the USAOs
and Department components; and supervision of various EOUSA legal and
administrative staffs handling EOUSA’s legal policy, legislative analysis,
The political Schedule C Deputy Director position for Goodling was a new position
within EOUSA. Contemporaneous e-mails of senior managers within the OAG and ODAG
indicate that OAG personnel approved Goodling’s appointment as a political Deputy
Director.
3

legal programs, data analysis, and the unit processing political
appointments for U.S. Attorneys. As an EOUSA Deputy Director, Goodling
also processed requests by interim U.S. Attorneys to hire AUSAs. These
requests from interim U.S. Attorneys, called “waiver” requests, are
discussed in detail in Chapter Four.
Goodling was one of two or three EOUSA Deputy Directors (the
number varied over time) who reported directly to the Director of EOUSA.
When Goodling arrived at EOUSA in March 2005, the Director was Mary
Beth Buchanan, who was also serving as the U.S. Attorney for the Western
District of Pennsylvania. In June 2005, Buchanan was replaced as EOUSA
Director by Michael Battle, the former U.S. Attorney for the Western District
of New York.
In October 2005, Goodling moved from EOUSA to the OAG, where she
remained until she resigned from the Department in April 2007. 4 From
October 2005 to April 2006, Goodling was Counsel to the Attorney General.
In April 2006, she became the Department’s White House Liaison and
Senior Counsel to the Attorney General. Goodling’s major responsibility as
White House Liaison was to interview and process applicants for political
positions in the Department. In that job, she also interviewed and was
involved in the selection of career attorneys who were candidates for
temporary details to various Department offices, and candidates for
immigration judge and Board of Immigration Appeals positions. In addition,
Goodling continued to process waiver requests by interim U.S. Attorneys,
although neither of her predecessors as White House Liaison, Susan
Richmond and Jan Williams, had done so. Goodling’s direct supervisor
during her tenure in the OAG was Chief of Staff Kyle Sampson.
II.

Kyle Sampson

Sampson graduated from Brigham Young University in 1993 and from
the University of Chicago Law School in 1996. After a federal appellate
court clerkship and 2 years in private practice, Sampson served for 2 years
as Counsel to the U.S. Senate Committee on the Judiciary, where, among
other things, he worked on nominations of candidates for political positions
in the Department of Justice. In 2001, Sampson moved to the White House
as Special Assistant to the President and Associate Director for Presidential
Personnel, where he handled presidential appointments to the Department
of Justice.

4 Goodling’s official resignation date from the Department was in April 2007.
However, her last work day was in the middle of March.

Later in 2001 and continuing until 2003, Sampson served as
Associate Counsel to the President. During that time Sampson worked on
legislative, policy, and environmental matters.
In August 2003, Sampson moved to the Department. From August
2003 to 2005, he served as Counselor to Attorney General Ashcroft. In
February 2005, Sampson became Deputy Chief of Staff to the Attorney
General, and in September 2005, he became Chief of Staff to Attorney
General Gonzales. He remained in that position until his resignation from
the Department in March 2007.
III.

Susan Richmond and Jan Williams

Goodling’s immediate predecessors as the Department’s White House
Liaison were Susan Richmond and Jan Williams.
Richmond graduated from Palm Beach Atlantic College in 1995. She
obtained masters degrees in Public Policy and Business Administration from
Regent University in 1998 and 1999. From 1998 to 2000, she worked for
Missouri Senator John Ashcroft as a research director and aide to his Chief
of Staff.
Richmond accompanied Ashcroft to the Department when he became
Attorney General in February 2001. From February 2001 to May 2003, she
served as an advisor to the Attorney General and as the Department’s
Deputy White House Liaison. In May 2003, she became the Department’s
White House Liaison and served in that position until she resigned from the
Department in March 2005.
Williams graduated from Brigham Young University in 1997. From
1997 to January 2001, she worked at the Federalist Society, first as the
Assistant Lawyers Division Director and then as Senior Deputy Lawyers
Division Director. In 2001, she moved to the White House, where she
served as a staff assistant and secretary to Kyle Sampson in the Presidential
Personnel Office. From November 2001 to March 2005, Williams was a
Deputy Associate Director in that office. She joined the Department in
March 2005 and served as White House Liaison until she resigned in April
2006. Sampson served as her direct supervisor while at the Department.
IV.

Department Components and Personnel

In this section we briefly describe the Department components that
were most relevant to the allegations we examined in this report. Our
description generally covers the time period from early 2004 until March
2007.

Chart 1 identifies the Department’s senior managers at the time of the
events discussed in this report.

CHART 1
Department of Justice Management
January 2003 - October 2007
Year

2003

Month

2004
F

A M J

A S O N D J

2006

2005
M A M J

A S

A M J

A S O N D J

2007

M A M J

A S

General

John Ashcroft
Feb 2001 - Feb 2005

Alberto Gonzales
Feb 2005 - Sept 2007

OAG
Chief of Staff

David Ayers
Feb 2001 - Feb 2005

Sept 2005 - Mar 2007

Attorney

Kyle
Sampson

O N D J

M A M J

Kyle Sampson

Counselor to the Attorney General

Dep. Chief

Chief of Staff

Aug 2003 - Feb 2005

of Staff

Sept 2005 - Mar 2007

Feb 05 - Sept 05

White House

Susan Richmond
May 2003 - Mar 2005

Liaison

Monica
Goodling

Deputy
Attorney

Jan Williams
Mar 2005 - April 2006

Monica Goodling
April 2006 - April 2007

DOJ Press Office

Special Assistant

Deputy Director

Counsel to

White House Liaison and

Feb 2002 - Aug 2004

USAO East. Dist. VA

EOUSA

the AG

Senior Counsel to the AG

Sept 04 - Mar 05

Mar 05 - Oct 05

Oct 05 - Apr 06

April 2006 - April 2007

James Comey
Dec 2003 - Aug 2005

Paul McNulty
Acting Nov 2005 Confirmed Mar 2006 - Jul 2007

General
ODAG
Chief of Staff

Director of
EOUSA
Director of
EOIR
Dep. Director
of EOIR

Chuck Rosenberg
Jan 2004 - Jun 2005

Michael Elston
Nov 2005 - Jun 2007

Mary Beth Buchanan
Jun 2004 - Jun 2005

Michael Battle
Jun 2005 - Mar 2007

Kevin Rooney

Kevin Ohlson

A S O

The Office of the Attorney General is a relatively small office that in
fiscal year (FY) 2006 was staffed with 25 employees, 7 of whom were
detailed there on temporary duty assignments from other Department
components. John Ashcroft served as Attorney General from February
2001 to February 2005. Alberto Gonzales served as Attorney General
from February 2005 to September 2007.
David Ayres served as the Chief of Staff to Attorney General
Ashcroft from February 2001 to February 2005. Kyle Sampson served
first as Deputy Chief of Staff and then as the Chief of Staff to Attorney
General Gonzales from February 2005 to March 2007. Susan Richmond,
Jan Williams, and Monica Goodling served as the Department’s White
House Liaisons from May 2003 to March 2005, March 2005 to April
2006, and April 2006 to April 2007, respectively.
The Office of the Deputy Attorney General advises and assists the
Attorney General in formulating and implementing Department policies
and programs and provides supervision and direction throughout the
Department. In FY 2006, the ODAG was staffed with 35 employees, 14
of whom were detailed there on temporary duty assignments from other
Department components. James Comey served as Deputy Attorney
General from December 2003 to August 2005. Paul McNulty was
appointed to be the Acting Deputy Attorney General in November 2005,
and was confirmed as the Deputy Attorney General in March 2006. He
resigned from the Department in July 2007.
Chuck Rosenberg served as ODAG Chief of Staff from January
2004 until June 2005. Michael Elston served as Chief of Staff from
November 2005 until he resigned from the Department in June 2007.
The Executive Office for U.S. Attorneys serves as the liaison
between the 94 U.S. Attorneys’ Offices throughout the country,
Department components in Washington, D.C., and other federal
agencies. EOUSA is a large organization with more than 500 employees.
According to its website, EOUSA provides USAOs assistance with
policy development, direction and oversight, and operational support.
EOUSA also provides budget and fiscal assistance and guidance to
USAOs. In addition, EOUSA evaluates the performance of USAOs on a
periodic basis.
EOUSA also assists the Department with the appointment of U.S.
Attorneys and provides general support to USAOs regarding AUSA
appointments. Mary Beth Buchanan served as EOUSA director from
June 2004 to June 2005. Michael Battle was EOUSA Director from June
2005 until he resigned from the Department in March 2007.

The Executive Office for Immigration Review is the office within the
Department responsible for interpreting and administering federal
immigration laws by conducting immigration court proceedings and
appellate review of such proceedings. At the time of the events discussed
in this report, the Director of EOIR was Kevin Rooney and the Deputy
Director was Kevin Ohlson.
The Office of Legal Policy (OLP) is responsible for developing and
implementing many of the Department’s significant policy initiatives.
OLP also handles special projects and serves as a policy advisor to the
Attorney General and the Deputy Attorney General. At the time of the
events discussed in this report, the Assistant Attorney General (AAG) for
OLP was Rachel Brand.
The Office of Public Affairs handles media relations and
communications issues for the Department. It also coordinates with
public affairs units in other Department components.
V.

Hiring Standards
A.

Department Career and Political Attorney Positions

For purposes of this investigation, we distinguish between two
broad categories of Department attorneys: career and political.
Most attorney positions in the Department are designated by the
Office of Personnel Management as Schedule A positions. Schedule A
positions are “positions which are not of a confidential or policydetermining character,” 5 C.F.R. § 213.3101; 5 C.F.R. § 213.3102(d), and
are considered career positions. The Department has several types of
Schedule A attorney positions, including AUSAs, trial attorneys in
litigating divisions, other types of attorneys in a variety of Department
components, and immigration judges. In addition, the Department
employs attorneys in a variety of career Senior Executive Service (SES)
positions. Among the members of the career SES at the Department are
the chair and one of the vice chairs of the Board of Immigration Appeals,
most Deputy Directors at EOUSA, and the Director of EOIR.
In addition, the Department has several types of political attorney
positions, including presidential appointees requiring Senate approval
(such as U.S. Attorneys and Assistant Attorneys General), non-career
SES attorneys, and Schedule C attorneys. Schedule C positions are
“positions which are policy-determining or which involve a close and
confidential working relationship with the head of an agency or other key
appointed officials.” 5 C.F.R. § 213.3301(a). Schedule C positions are
commonly referred to as political appointments.

For several reasons, the Department has traditionally used some
career attorneys to help staff, on a temporary basis, the Department’s
leadership offices, the OAG and the ODAG, as well as other Department
offices such as OLP and EOUSA. 5 These assignments are referred to as
“details,” and individuals who obtain such positions are commonly
referred to as “detailees.” As noted above, a significant portion of the
OAG and ODAG staff are detailees from other Department components.
When career attorneys are detailed to offices such as the OAG, ODAG, or
OLP, they may have significant policy-related responsibilities usually
associated with Schedule C attorneys. We discuss this issue more fully
below.
B.

Legal Standards

It is not improper to consider political affiliations when hiring for
political positions. However, both Department policy and federal law
prohibit discrimination in hiring for Department career positions on the
basis of political affiliations.
The Department’s policy on non-discrimination is contained in the
Code of Federal Regulations, Section 42.1(a) of 28 C.F.R. Part 42,
Subpart A, which states:
It is the policy of the Department of Justice to seek to
eliminate discrimination on the basis of race, color, religion,
sex, sexual orientation, national origin, marital status,
political affiliation, age, or physical or mental handicap in
employment within the Department and to assure equal
employment opportunity for all employees and applicants for
employment (emphasis added). 6

Political appointees can be detailed to temporary career positions as well. For
example, as noted above Goodling was detailed to the USAO for the Eastern District of
Virginia for 6 months as a Special AUSA.
5

6 While the language of 42.1(a) is aspirational, it is clear that the regulation
prohibits the conduct it describes. See 28 C.F.R. § 42.1(b) (“No person shall be subject
to retaliation for opposing any practice prohibited by the above policy [42.1(a)]”);
Attorney General Order 2037-46, adopting the current version of 42.1(a), stating that it
amended 42.1 “to include sexual orientation as a prohibited basis for discrimination”
and characterized 42.1(b) as prohibiting “retaliation for opposing a prohibited practice.”
61 Fed. Reg. 34,729, 34,729 (July 3, 1996); Action Memorandum for the Attorney
General from Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Re:
Final Rule Amending the Policy Statement Regarding Equal Employment Opportunity
Within the Department of Justice (June 18, 1996) (stating that the proposed order
would “codify the Department’s policy prohibiting discrimination on the basis of sexual
orientation”).

While the regulation does not define “political affiliation,” courts have
considered “political affiliation” to include “commonality of political
purpose, partisan activity, and political support.” See, e.g., Curinga v.
City of Clairton, 357 F.3d 305, 311 (3rd Cir. 2004).
The Office of Attorney Recruitment and Management (OARM), the
Department component with primary responsibility for overseeing career
attorney hiring, states on its website:
The U.S. Department of Justice is an Equal Opportunity/
Reasonable Accommodation Employer. Except where
otherwise provided by law, there will be no discrimination
based on color, race, religion, national origin, politics,
marital status, disability, age, sex, sexual orientation, status
as a parent, membership or nonmembership in an employee
organization, or personal favoritism (emphasis added). 7
In addition to Department policies, the Civil Service Reform Act
(CSRA) prohibits the Department from discriminating in hiring for career
positions based on political affiliation. For example, the CSRA states
that federal agencies must adopt hiring practices for career employees in
which:
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.
5 U.S.C. § 2301(b)(1).
Moreover, the CRSA sets forth a series of merit system principles
by which federal agencies are to manage personnel decisions. One
principle directly addresses employment discrimination:
All employees and applicants for employment should receive
fair and equitable treatment in all aspects of personnel
management without regard to political affiliation, race,
color, religion, national origin, sex, marital status, age, or
handicapping condition, and with proper regard for their
privacy and constitutional rights.
5 U.S.C. § 2301(b)(2) (emphasis added).
CRSA Section 2302 sets forth a list of “prohibited personnel
practices” and prohibits “any employee who has authority to take, direct
7

See www.usdoj.gov/oarm/attvacancies.html.

others to take, recommend, or approve any personnel action” from
engaging in those enumerated practices. 8 2302(b). The CSRA defines a
“personnel action” to include “an appointment” and “a detail.” 9
2302(a)(2)(A) (i) and (iv).
Section 2302(b) applies to “an employee in, or applicant for, a
covered position.” 2302(a)(2)(A). A “covered position” includes career
attorneys:
‘covered position’ means, with respect to any personnel
action, any position in the competitive service, a career
appointee position in the Senior Executive Service, or a
position in the excepted service, but does not include any
position which is, prior to the personnel action . . . (i)
excepted from the competitive service because of its
confidential, policy-determining, policy-making, or policyadvocating character . . . .
2302(a)(2)(B). Department Schedule A career attorneys are included
within the scope of 2302(b) because Schedule A positions are defined as
“not of a confidential or policy-determining character.” 5 C.F.R. §
213.3102(d).
The use of political affiliation as a criterion for considering
applicants for career attorney appointments or details may violate several
prohibited personnel practices. Section 2302(b)(1)(E) prohibits
“discriminat[ing] for or against any employee or applicant for employment
. . . on the basis of . . . political affiliation, as prohibited under any law,
rule, or regulation.” 10 Section 2302(b)(12) of the CSRA also makes it
unlawful to “take or fail to take any other personnel action if the taking
or failure to take such action violates any law, rule, or regulation
implementing, or directly concerning, the merit system principles
contained in section 2301 of this title.” In addition, as noted above, one
8

The actions specifically covered by Section 2302(b) are discussed below.

As set forth more fully below, we investigated allegations that Goodling and
Richmond considered political or ideological affiliations when assessing career attorney
candidates for detail positions in Department offices.
9

However, the use of political affiliation violates 2302(b)(1)(E) only when it also
violates some other “law, rule or regulation.” We asked the Department’s Office of Legal
Counsel (OLC) whether the policy on non-discrimination contained in 28 C.F.R. § 42.1
qualifies as a predicate for a violation of 2302(b)(1)(E). OLC responded that “[o]ur
informal conclusion is that 28 C.F.R. § 42.1 (2007) and the First Amendment constitute
‘law[s], rule[s] or regulation[s]’ that prohibit considering political affiliation in hiring
career attorneys to Excepted Service Schedule A positions at DOJ.” Career attorneys in
the Department are Excepted Service Schedule A positions.
10

merit system principle is that “all employees and applicants for
employment should receive fair and equitable treatment in all aspects of
personnel management without regard to political affiliation . . . .” 5
U.S.C. 2301(b)(2).
These policies and laws do not define “political affiliation.”
Nonetheless, selecting candidates for career positions based on the
activities or organizations with which they are affiliated can be used as a
proxy for political affiliation and thus can violate CSRA’s prohibition.
Using ideological affiliation can also create the appearance that
candidates are being discriminated against based on political affiliation.
As a result, Department policy and the CSRA prohibit using
political affiliations and may also prohibit using certain ideological
affiliations in assessing candidates for career attorney positions.

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CHAPTER THREE
GOODLING’S ROLE IN DEPARTMENT HIRING
During Goodling’s tenure in the Office of Public Affairs, EOUSA,
and in the OAG before she became White House Liaison, her primary
responsibilities did not include hiring personnel. 11 When she was in
EOUSA, she was involved in the approval of waiver requests from interim
U.S. Attorneys to hire AUSAs, and we investigated her actions in that
role. However, the bulk of Goodling’s hiring activities for the Department
occurred after she became the Department’s White House Liaison, and
most of the allegedly improper hiring practices occurred during her time
in that position. We discuss in this chapter Goodling’s methods for
screening candidates for their political or ideological affiliations.
As White House Liaison, Goodling’s primary responsibility was to
screen candidates for political positions. Based on our witness
interviews and review of documents, and the results of our survey, we
found that most of the people Goodling screened or interviewed had
applied for political positions. However, Goodling also assessed
candidates for various types of career positions, including candidates for
AUSA positions requested by interim U.S. Attorneys, career attorneys
applying for details to Department offices, and candidates for IJ and BIA
positions. We also found that Goodling interviewed many candidates
who were interested in obtaining any position in the Department,
whether career or political.
Our investigation demonstrated that Goodling sometimes used for
career applicants the same political screening techniques she employed
in considering applicants for political positions. In addition, she used for
candidates who were interested in any position, whether career or
political, the same political screening she used for applicants who
applied solely for political positions, and some of these candidates were
placed in career positions.
In the sections that follow, we describe the process Goodling used
as White House Liaison to screen candidates for political positions within
the Department. We note where applicable the evidence that she used
similar techniques in assessing candidates for career positions.

11 We found no evidence that Goodling was involved in hiring during her tenure
in the Office of Public Affairs.

As detailed in this chapter, Goodling used a variety of methods to
screen candidates, including interview questions, Internet searches,
employment forms, and reference checks.
I.

Interview Questions

According to witnesses we interviewed and documents we
reviewed, Goodling regularly asked interview questions designed to
determine how politically conservative the candidates were. We
interviewed Angela Williamson, who was the Department’s Deputy White
House Liaison and reported to Goodling during most of Goodling’s tenure
as White House Liaison. 12 Williamson attended numerous interviews
conducted by Goodling and told us that Goodling asked the same
questions “all the time” and tried to ask the same questions of all
candidates. Williamson said she became so familiar with the questions,
Goodling occasionally allowed her to conduct portions of interviews or
entire interviews on her own. 13
After Goodling resigned, Williamson typed from memory the list of
questions Goodling asked as a guide for future interviews. Among other
questions, the list included the following:
Tell us about your political philosophy. There are different
groups of conservatives, by way of example: Social
Conservative, Fiscal Conservative, Law & Order Republican.
[W]hat is it about George W. Bush that makes you want to
serve him?
Aside from the President, give us an example of someone
currently or recently in public service who you admire.
We found that this last question often took the form of asking the
candidate to identify his or her most admired President, Supreme Court
Justice, or legislator. Some candidates were asked to identify a person
for all three categories. Williamson told us that sometimes Goodling
asked candidates: “Why are you a Republican?”
12 Williamson, who was not an attorney, joined the OAG in July 2006 and
remained there after Goodling resigned. Williamson graduated from the College of the
Ozarks in 2000 and had worked as an intern at the White House before joining the
Department as a press assistant in May 2004. She moved to the Office of First Lady
Laura Bush in September 2005, and joined the OAG in July 2006.

Our review of Goodling’s handwritten interview notes confirmed that she
asked similar questions of many candidates. Those notes suggest that Goodling asked
candidates either all or a subset of her standard questions, although the notes do not
show that every candidate was asked exactly the same questions.
13

Several candidates interviewed by Goodling told us they believed
that her question about identifying their favorite Supreme Court Justice,
President, or legislator was an attempt to determine the candidates’
political beliefs. For example, one candidate reported that after he stated
he admired Secretary of State Condoleezza Rice, Goodling “frowned” and
commented, “but she’s pro-choice.” Another candidate commented that
when Goodling asked him to name his favorite judge, it seemed to him
that she was trying to “get at my political views.”
Williamson said that she and Goodling took notes during candidate
interviews, which were maintained in folders for the candidates. 14 We
also found that many of Goodling’s and Williamson’s interview notes
reflected that the topics of abortion and gay marriage were discussed
during interviews. It appeared that these topics were discussed as a
result of the question seeking information about how the applicant would
characterize the type of conservative they were. We received information
from our survey that 34 persons interviewed by Goodling or Williamson
said they discussed abortion, and 21 said they discussed gay marriage.
Some of Goodling’s interview questions elicited complaints from a
senior Department official. Regina Schofield, former Assistant Attorney
General for the Office of Justice Programs, said she complained to OAG
Chief of Staff Kyle Sampson about Goodling asking inappropriate
questions of OJP candidates, such as questions about abortion.
Schofield said she told Sampson that Goodling needed to be trained, and
that Sampson seemed to agree with the suggestion. Sampson told us he
did not have a specific recollection of Schofield calling him to complain
about Goodling asking questions about abortion, but that he had some
recollection about discussing interviewer training with Schofield. We
found no evidence that Goodling received any such training or was
instructed about the type of questions that should be asked in interviews
as a result of Schofield’s complaint.
The evidence also indicates that Goodling knew she should not ask
applicants for career positions the same questions she asked of
applicants for political positions. For example, an AUSA who interviewed
with Goodling in September 2006 for a possible position in the ODAG
said that Goodling told her there were two types of positions potentially
available, political and non-political. Goodling told the candidate that if
she was interested in a political position, she would ask her separate
Goodling and Williamson maintained candidates’ résumés and supporting
materials in manila folders. We examined hundreds of such folders. Goodling’s
interview notes were usually contained on the inside flap of the folder or on separate
pieces of paper that were inserted into the folder.
14

questions, which included questions about political activities and voting
history. 15
II.

Internet Research

As noted above, prior to joining the Department Goodling worked
for the Republican National Committee. According to her résumé, her
duties there included “a broad range of political research.” When asked
during her congressional testimony whether she used such skills in
researching candidates at the Department, Goodling replied that she
“certainly used Westlaw and Nex[i]s.”
We found that Goodling’s Internet research on candidates for
Department positions was extensive and designed to obtain their political
and ideological affiliations. 16 We determined that while working in the
OAG, Goodling conducted computer searches on candidates for career as
well as political Department positions. Goodling used an Internet search
string in her hiring research that she had received from Jan Williams,
her predecessor as the Department’s White House Liaison. At some time
during the year Williams served as White House Liaison, she had
attended a seminar at the White House Office of Presidential Personnel
and received a document entitled “The Thorough Process of
Investigation.” The document described methods for screening
candidates for political positions and recommended using www.tray.com
and www.opensecrets.org to find information about contributions to
political candidates and parties. The document also explained how to
find voter registration information. In addition, the document explained
how to conduct searches on www.nexis.com, and included an example of
a search string that contained political terms such as “republican,”
“Bush or Cheney,” “Karl Rove,” “Howard Dean,” “democrat!,” “liberal,”
“abortion or pro-choice,” as well as generic terms such as “arrest!” and
“bankrupt!”
When Williams left the Department in April 2006, she sent an email to Goodling containing an Internet search string and explained:
15 We also note that Goodling was asked in her congressional testimony
whether she “may have gone too far in asking political questions of applicants for career
positions.” Goodling agreed that she had done so. Goodling was not asked at the
hearing what questions she posed that were political in nature.

It does not violate federal law or Department policy to search for and consider
political information concerning candidates for political positions. However, Goodling
also conducted such searches, and considered the results of those searches, for
candidates for career positions, including IJs and career candidates for temporary
details.
16

“This is the lexis nexis search string that I use for AG appointments.”
The string reads as follows:
[First name of a candidate]! and pre/2 [last name of a
candidate] w/7 bush or gore or republican! or democrat! or
charg! or accus! or criticiz! or blam! or defend! or iran contra
or clinton or spotted owl or florida recount or sex! or
controvers! or racis! or fraud! or investigat! or bankrupt! or
layoff! or downsiz! or PNTR or NAFTA or outsourc! or indict!
or enron or kerry or iraq or wmd! or arrest! or intox! or fired
or sex! or racis! or intox! or slur! or arrest! or fired or
controvers! or abortion! or gay! or homosexual! or gun! or
firearm!
In addition, Williams provided to Goodling the White House document
described above entitled, “The Thorough Process of Investigation.” 17
We determined that Goodling conducted much of her Internet
screening research herself, but on occasion she delegated the
responsibility to her deputy, Angela Williamson. For a 2-week period in
December 2006, Goodling was also assisted by a Schedule C political
appointee hired in the Office of Intergovernmental and Public Liaison
(OIPL), who was not an attorney at that time. 18
According to Goodling’s testimony to Congress, she did not
document her research: “I didn’t really keep that kind of file. Normally,
if I found something that was negative about someone, we didn’t hire
them, and I wouldn’t have necessarily retained it.”
We determined that Goodling’s Internet searches used the search
terms that Williams provided, which focused on political criteria.
Goodling kept the search string intact, but added terms when assessing
candidates for certain positions, such as IJs, when she added the terms:
“or immigrat! or immigrant! or asylum or DHS or ICE or border! or alien!
or migrant! or criminal! or justice or judg!” We also found that this
search string was included in an e-mail Goodling sent to the OIPL
employee, dated December 5, 2006, in which Goodling instructed her to
use the search string for all candidates she was asked to screen.

17 We found the document in Goodling’s records after she left the Department.
The cover page had a message (“I know you know this stuff – but it may be helpful”) in
handwriting that Williams acknowledged to us “could be” hers.

Goodling interviewed this employee when she applied to the Department for a
job. According to the employee, her résumé had been forwarded to the Department by
the Republican National Committee.
18

In addition, Goodling admitted in her congressional testimony that
she accessed www.tray.com and other web sites to get information about
political contributions made by candidates for temporary details,
immigration judges, and other positions. 19
III.

Employment Forms

Typically, people who wanted to be considered for political
positions within the Bush administration had to complete a form entitled
“PPO Non-Career Appointment Form” (PPO is the acronym for
“Presidential Personnel Office”). The form required applicants to identify
their political party affiliation, their voting address for 2000 and 2004,
their involvement in the Bush/Cheney campaigns of 2000 and 2004, and
a point of contact to verify their involvement in the campaigns. The form
also stated that each applicant had to submit a “political and personal
resume” before “White House clearance” could begin.
As the Department’s White House Liaisons, Goodling and her
predecessors used the Non-Career PPO form to gather information about
candidates for political positions within the Department. We found that
it was a standard practice for Goodling, Williamson, or their secretary to
have applicants complete a Non-Career PPO form prior to interviewing
them.
However, during the course of our investigation we found many
instances in which candidates for career positions such as attorney
details, IJ positions, and BIA members were asked to complete PPO
forms before they interviewed with Goodling. Several witnesses told us
that when they objected to completing the form prior to interviewing for a
career position, Goodling responded that they were given the PPO form
by mistake. This response shows that Goodling was aware that it was
improper for career candidates to complete a political form. However, we
describe later in this report the evidence that Goodling used the
information on completed PPO forms to reject candidates for career
positions.
Goodling stated during her congressional testimony that she did not believe
Attorney General Gonzales knew that she was asking political questions of candidates
for career positions. When we interviewed him, Gonzales stated that he was not aware
at the time that Goodling used political factors in assessing candidates for career
positions, was not aware of the search terms Goodling used in her background
research, and was not even aware that Goodling’s portfolio in the OAG included the
hiring of immigration judges. When we asked Sampson whether he was aware of
Williams and Goodling using the computer search terms detailed above to research
candidates, he replied: “Not that I remember.”
19

IV.

Reference Checks

Goodling admitted in her congressional testimony that there “were
times I crossed the line probably in my reference calls” by asking political
questions. She did not clarify whether she conducted reference checks of
candidates for career positions, and, if so, whether she asked political
questions during the checks. Goodling’s files contain few notes from any
reference checks she conducted.

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CHAPTER FOUR
EVIDENCE AND ANALYSIS: PERMANENT CAREER
ATTORNEY HIRING DECISIONS
In this chapter of the report we discuss our investigation of
allegations that Goodling used political or ideological affiliations to screen
waiver requests by interim U.S. Attorneys to hire career AUSAs, and to
screen candidates for other permanent career positions within the
Department.
I.

Interim U.S. Attorney Waiver Requests to Hire Career AUSAs

On March 29, 2007, Chuck Rosenberg, Acting Chief of Staff to the
Attorney General, forwarded to us a complaint that Goodling had denied
an interim U.S. Attorney’s request for a waiver to hire an AUSA because
she believed the candidate was too “liberal.” In addition, Goodling’s
written statement to Congress acknowledged that “[i]n a very small
number of [waiver] cases, I believe that my decisions may have been
influenced in part based on political considerations.”
Pursuant to Department policy, interim or acting U.S. Attorneys –
that is, U.S. Attorneys who have not been appointed by the President and
confirmed by the Senate – do not have the authority to hire new AUSAs
without permission from the Department. 20 The same policy applies to
U.S. Attorneys who have announced their intent to leave office. This
policy is intended to allow permanent, presidentially appointed U.S.
Attorneys the ability to hire staff for their offices, rather than having
interim or departing U.S. Attorneys make the hiring decisions.
However, in some circumstances an interim or outgoing U.S.
Attorney needs to hire new attorneys, such as when there is a lengthy
delay in the appointment or confirmation process and the office has a
large number of vacancies. In such cases, the interim or outgoing U.S.

Under the Vacancy Reform Act, the First Assistant U.S. Attorney becomes the
acting U.S. Attorney by operation of law when the presidentially appointed U.S.
Attorney vacates the position. The term of the acting U.S. Attorney is limited by a time
period specified in the statute. 5 U.S.C. § 3345. In addition, the Attorney General may
fill a vacant position by appointing an individual to serve as the interim U.S. Attorney,
also subject to a time limitation specified in the statute. After the expiration of that
time period and if the vacancy still exists, the U.S. District Court for the district in
which the vacancy occurred may appoint an interim U.S. Attorney to serve until the
vacancy is filled. 5 U.S.C. § 546.
20

Attorney can request from EOUSA a waiver from the policy prohibiting
them from hiring an AUSA.
EOUSA does not have a formal process for submitting waiver
requests. Typically, interim U.S. Attorneys or their staff send EOUSA an
e-mail requesting the waiver, with details about the waiver request such
as the number of hires requested. During the period encompassed by
our review, when EOUSA received waiver requests they were usually
forwarded to EOUSA’s administrative staff for processing and analysis.
The administrative staff would determine the number of vacancies at the
USAO, the current financial status of the office, and whether the office
could afford the hire based on its current budget. Once EOUSA
administrative personnel performed this analysis, an EOUSA senior
manager would decide whether to approve or reject the request.
Michael Battle, who was EOUSA Director for most of Goodling’s
tenure while she was in both EOUSA and the OAG, told us he did not
become involved in decisions on waiver requests. He said he delegated
responsibility for the waiver process to his Deputy Directors, one of
whom was Goodling from March to November 2005.
We determined that at some point during her EOUSA tenure,
Goodling began to decide some waiver requests for EOUSA. For example,
on October 7, 2005, Goodling sent Battle an e-mail asking about the
status of a waiver request, and telling him that “[n]ormally waiver
requests from Actings/Interims come to Steve [Parent] and I and we both
vet them from our various sides.”
We determined that after Goodling moved to the OAG to become
the Department’s White House Liaison, she continued to decide EOUSA
waiver requests. Battle told us that he did not know that Goodling
continued to do this. Neither Susan Richmond nor Jan Williams,
Goodling’s predecessors as White House Liaison, were involved in
deciding such requests for EOUSA while serving in the OAG.
In her written statement to Congress in May 2007, Goodling
discussed her role in processing waiver requests while at EOUSA and
why she continued that practice when she moved to the OAG:
I reviewed a number of . . . waiver requests during my tenure
in EOUSA and the Attorney General’s office. While in
EOUSA, I referred significant waiver requests to [OAG Chief
of Staff] Sampson. When I moved to the Office of the
Attorney General, my position in EOUSA was left vacant, so I
continued to oversee these waiver requests.

We believe that several of Goodling’s assertions in this written statement
were inaccurate.
Sampson stated that when Goodling was in EOUSA he did not
recall that he discussed specific waiver request candidates with her. We
reviewed all of the e-mails between Goodling and Sampson when she
worked in EOUSA, and found no evidence that she referred any specific
waiver requests to Sampson. Sampson told us that when Goodling was
in EOUSA, in connection with waiver requests she would ask him about
the status of U.S. Attorney presidential appointments and whether they
were relatively imminent. Sampson stated that if the appointment was
not imminent, he would suggest that the waiver be granted if the hire
was necessary, but he did not discuss specific candidates with her.
Moreover, Goodling’s assertion that she continued to review waiver
requests while in the OAG because her EOUSA position was vacant is
undermined by evidence that she continued to require EOUSA to send
her waiver requests even after her position as the EOUSA Schedule C
political Deputy Director was filled by John Nowacki in August 2006. 21
On September 29, 2006, shortly after Nowacki assumed his duties in
EOUSA, he forwarded Goodling a waiver request from the District of
Alaska and commented, “I assume you want to see this sort of thing – if
not, let me know . . . I intend to recommend approval.” Goodling replied,
“When you get a waiver request, the approval comes from me – so I
assume your last sentence means you are recommending that I approve
. . . ?”
We found numerous instances in which Goodling and Nowacki
asked to review the résumés of AUSA candidates who were the subject of
waiver requests. EOUSA Associate Counsel Natalie Voris told us that
Goodling usually asked to see the résumés of the potential hires for the
waiver requests. Voris stated that the purpose of reviewing résumés was
to see if the candidates were minimally qualified, and to see if there was
personal favoritism occurring by the USAO requesting the waiver.
However, the requesting USAO had already assessed and approved of the
candidates’ qualifications, and it is not clear how EOUSA would have
been able to determine whether a candidate was selected based on
personal favoritism.
Nowacki graduated from Evangel College in 1994 and, like Goodling, from
Regent University Law School in 1998. Also like Goodling, Nowacki worked in the
Department’s Office of Public Affairs, from November 2003 to March 2006. He then
served a 6-month detail as a Special AUSA in the Eastern District of Virginia. Like
Goodling, he transferred to EOUSA in August 2006. Nowacki served as a Schedule C
political appointee and an EOUSA Deputy Director. Nowacki is currently on a detail to
Iraq.
21

Screening Waiver Requests

To determine the extent to which Goodling improperly considered
political or ideological affiliations in making her waiver request decisions,
we reviewed EOUSA documents related to waiver requests during
Goodling’s tenure at EOUSA and the OAG, including information about
Goodling’s approval or disapproval of such requests. In addition, we
reviewed Goodling’s e-mails during the time she was in EOUSA and the
OAG for documents related to her assessment of waiver requests.
We also sent a written request for information and documents
related to waiver requests to all 30 Department attorneys who had served
as an interim U.S. Attorney during Goodling’s tenure at EOUSA and the
OAG. We asked them for information about whether they had made any
waiver requests, and if so whether they had any direct or indirect
evidence that Goodling used improper or illegal criteria to assess such
requests. In our written request to the interim U.S. Attorneys, we cited
political affiliation and religion as examples of improper or illegal hiring
criteria. In addition, we interviewed current and former EOUSA senior
staff and an interim U.S. Attorney who had direct knowledge of
Goodling’s screening of waiver requests.
Based on our investigation, we determined that both Goodling and
Nowacki considered political or ideological affiliations to assess AUSA
candidates who were the subject of waiver requests on at least three
occasions.
Twenty of the 30 interim U.S. Attorneys we contacted stated that
they had submitted waiver requests during Goodling’s tenure in EOUSA
and the OAG. Two of the 30 interim U.S. Attorneys, Jeffery Taylor and
Chuck Rosenberg, said they were aware of evidence that Goodling had
used political considerations in assessing a waiver request. Both Taylor
and Rosenberg referred to the same incident involving an AUSA
candidate in the District of Columbia.
In the next section, we discuss the waiver request identified by
Taylor and Rosenberg, as well as two other instances where the evidence
indicated that Goodling or Nowacki used political or ideological
affiliations to assess AUSA candidates who were the subject of waiver
requests.
Aside from these three incidents, we found no other evidence of the
use of political or ideological affiliations to assess waiver candidates.
With one exception noted below, we found no documents or e-mails
evidencing Goodling’s use of political or ideological affiliations to screen
waiver requests. The documents produced by interim U.S. Attorneys,

EOUSA, and Goodling’s e-mail archives reflected Goodling’s
consideration of factors such as the requesting office’s budget situation
and the existing number of staff vacancies to assess waiver requests.
Unlike the process she used for assessing candidates for political
positions, temporary details, or IJ positions, we found no evidence that
Goodling maintained folders containing résumés and other supporting
materials for the subjects of waiver requests. This was not surprising
because she did not interview these candidates. However, because there
were no folders on these candidates (which were the source of much of
our information about how Goodling processed other candidates), we do
not have evidence whether she conducted Internet research or called
AUSA candidate references regarding waiver requests.
1.

The USAO for the District of Columbia

In September 2006, Jeffery Taylor became the interim U.S.
Attorney for the District of Columbia. 22
Sometime in November 2006, Taylor asked EOUSA for a waiver to
hire an AUSA for the District of Columbia USAO. Taylor had selected a
candidate for the slot after interviewing several applicants. Taylor’s
waiver request was oral, and we found no documents reflecting his
waiver request or the exact date of the request.
After making the request, Taylor sent EOUSA the résumé of the
candidate he wanted to hire. According to the résumé, the candidate
received his undergraduate degree from Cornell University; graduated
from Howard University School of Law where he was Director of the Civil
Rights Symposium; interned in the Department of Justice’s Civil Rights
Division; and worked for 7 years in the Civil Rights Office in the Office of
the General Counsel for the Environmental Protection Agency.
Taylor told us that after failing to receive a response to his request,
he called EOUSA and was informed that Goodling, who was then the
Department’s White House Liaison, had final authority on waiver
requests. Taylor therefore called Goodling to discuss the waiver.
According to Taylor, Goodling told him that the candidate gave her
pause because judging from his résumé he appeared to be a “liberal
Democrat.” Taylor responded by stating that such considerations were
Prior to his appointment as interim U.S. Attorney, beginning in 2002 Taylor
served as Counselor to Attorney General Ashcroft and then Attorney General Gonzales.
From 1999 to 2002, he served as Counsel to the U.S. Senate’s Committee on the
Judiciary. From 1995 to 1999, he was an AUSA in the Southern District of California.
22

not relevant in career AUSA hiring decisions. Taylor said he also told
Goodling that AUSAs’ political affiliations are not relevant to how they
perform, and that U.S. Attorneys will lose credibility if they are perceived
as making politicized hiring decisions. Taylor said that Goodling also
mentioned that because Republicans had lost control of Congress after
the November 2006 elections, she expected that Republican
congressional staff might apply for AUSA positions in Washington.
Goodling told Taylor she would get back to him regarding his request.
Taylor said that when Goodling failed to get back to him, he called
Kyle Sampson, Chief of Staff to the Attorney General, and asked him to
intervene with Goodling. 23
Sampson told us that Taylor called him to complain that Goodling
was slowing down the process of his getting a waiver from EOUSA to hire
AUSAs. Sampson said he told Goodling that Taylor should not be subject
to the waiver process because Taylor was going to be nominated by the
President for the permanent U.S. Attorney position. Sampson said that
Goodling then agreed with the waiver request. Sampson told us he did
not recall that either Taylor or Goodling had said that the AUSA
candidate at issue was a Democrat. Sampson also said he did not think
he knew at the time that Goodling had a problem with the candidate’s
perceived political party affiliation.
We found a November 21, 2006 e-mail from Sampson to Goodling
stating that Taylor had been trying to reach Goodling and that Taylor
wanted to hire several AUSAs. Sampson stated in the e-mail that
because Taylor was going to be the nominee for U.S. Attorney, Sampson
was inclined to let Taylor hire at will.
On November 30, 2006, Goodling sent an e-mail to EOUSA staff
stating that Taylor could hire AUSAs at will if the U.S. Attorney’s Office
had sufficient funds. As a result, Taylor hired the candidate.
During Goodling’s congressional testimony, she was asked about
Taylor’s waiver request. Goodling testified that she regretted that she
had made a “snap judgment based on the totality of things [she] saw on
[the candidate’s] resume.”
2.

The USAO for the Western District of Missouri

On December 19, 2006, Bradley Schlozman, who at the time was
the interim U.S. Attorney for the Western District of Missouri, sent an e23

E-mails indicate this call occurred on approximately November 21, 2006.

mail to EOUSA Director Battle and Nowacki to request a waiver to hire
an AUSA. 24 Nowacki asked to see the résumés of potential candidates
for the position. On December 22, Schlozman sent Nowacki an e-mail
that attached the résumés of three candidates. In his e-mail, Schlozman
described the three candidates as “rock-solid Americans” who would be a
“hugely positive legacy for this Administration.” Schlozman described
each candidate in terms of their conservative political credentials. He
wrote that the first applicant’s “involvement with the Bush/Cheney
campaign speaks for itself.” Regarding the second candidate, Schlozman
noted that he met the applicant during the applicant’s clerkship with a
“43-appointee” (referring to a federal appellate judge appointed by
President Bush). Schlozman described the third candidate as “a rock
star talent in addition to being hard core (in the most positive sense of
that phrase) on the issues[.]” Schlozman also described the third
applicant as “an obvious conservative of incredible intellect.” 25
That same day, Nowacki forwarded the three résumés by e-mail to
Goodling in the OAG. Later that day, Goodling sent an e-mail to Nowacki
saying, “Tell Brad he can hire one more good American.” Shortly
thereafter, Nowacki sent an e-mail to Schlozman saying, “You can go
ahead and hire one more good American.” Nowacki acknowledged to us
that he understood the phrase “good American” to refer to someone with
Republican credentials.
Nowacki said he thought that Schlozman’s use of political
credentials to describe AUSA candidates was an attempt to get his waiver
request approved by Goodling.
In answers to congressional questions, Schlozman addressed his
use of political affiliations in advocating for the waiver. He wrote:
As I noted at the hearing, I had heard rumors that Ms.
Goodling considered political affiliation in approving hiring
decisions for career positions. I also knew that, although the
decision to authorize the hiring of AUSAs by interim U.S.
Attorneys was technically vested in EOUSA, Ms. Goodling
exercised great control in this area. Knowing this, and in
order to maximize the chances of obtaining authority to hire
an additional AUSA, I recall once noting the likely political
24 Prior to his appointment as interim U.S. Attorney, Schlozman had been a
Counsel in the ODAG, a Deputy AAG in the Civil Rights Division, and the Acting AAG
for the Civil Rights Division.
25 As noted above, we are conducting a separate investigation regarding
Schlozman’s personnel actions in the Civil Rights Division.

leanings of several applicants in response to a query from
EOUSA about the candidates being considered for the
position. However, none of the individuals I referenced was
hired, nor do I believe they were even interviewed. Indeed, I
adopted an apolitical hiring process in which I completely
turned over the process (i.e., selecting candidates to be
interviewed, interviewing candidates, and recommending a
candidate to be hired) to a hiring panel consisting of three
veteran career prosecutors in my office – the First Assistant
U.S. Attorney, the Senior Litigation Counsel, and a
Supervisory [AUSA].
We confirmed that none of the three applicants was hired by the
Missouri USAO. Career officials in the USAO made the decisions on who
to hire, and they did not select any of these three applicants.
3.

The USAO for the Western District of Washington

John McKay, the former U.S. Attorney for the Western District of
Washington, announced his resignation in late 2006. 26 Before McKay
resigned, he made offers to hire four AUSAs for his office. Pursuant to
Department policy, EOUSA honors offers made to AUSA candidates by
U.S. Attorneys who are leaving office if the offers were made prior to their
resignation announcement. After McKay’s departure, his USAO sought
EOUSA’s permission to hire the four AUSA candidates. EOUSA
eventually agreed. However, before EOUSA granted approval, one of the
four AUSA candidates withdrew his name from consideration.
On March 1, 2007, interim U.S. Attorney Jeffrey Sullivan, who had
temporarily replaced McKay, sent an e-mail to EOUSA Director Battle
asking that the USAO be allowed to substitute another AUSA candidate
for the one who had withdrawn. Sullivan attached the replacement
candidate’s résumé to his e-mail, and copied the e-mail to his First
Assistant U.S. Attorney (FAUSA) Mark Bartlett and to EOUSA Deputy
Director Nowacki.
Nowacki sent Goodling an e-mail on March 1 about this waiver
request. In the e-mail, Nowacki referenced their “recent conversation”
about the candidate and forwarded to Goodling information about the
Western District of Washington USAO’s financial situation.

26 We are investigating the circumstances surrounding McKay’s removal as U.S.
Attorney as part of our investigation of the removal of several U.S. Attorneys.

Nowacki told us he did not recall speaking with Goodling about the
candidate, and we found no other information regarding the substance of
their conversation.
On March 6, FAUSA Bartlett sent an e-mail to Nowacki again
requesting permission to hire the replacement candidate. Bartlett then
spoke to Nowacki, who requested another copy of the candidate’s
résumé, which Bartlett attached to an e-mail to Nowacki on March 7.
The candidate’s résumé did not directly reference any political or
ideological affiliation. However, her résumé noted that she clerked for
Eighth Circuit Court of Appeals Judge Diana Murphy, who had been
appointed by President Clinton.
Bartlett stated that after his March 6 e-mail to Nowacki, he
frequently telephoned Nowacki asking for a decision about the candidate.
Bartlett told us that he had been aware of allegations that politics had
played a role in the selection of AUSAs, but did not recall the source of
those allegations. On March 14, Bartlett said he left Nowacki a strongly
worded voice mail in which he accused Nowacki of using a political
litmus test to assess AUSA candidates. Bartlett said that in his voice
mail he also stated that he would not accept a decision based on politics
and would appeal any such decision within the Department. Bartlett
said that within 10 minutes of leaving this voice mail he received an email from Nowacki approving the candidate’s hire.
We interviewed Nowacki twice about this particular waiver
candidate. In his first interview, Nowacki stated that he initially had
recommended against the waiver request because of budgetary reasons.
Nowacki also said he did not recall discussing the candidate with
Goodling, even after we showed him his e-mail to her referencing their
“recent conversation” about the candidate. Nowacki said that after
receiving Bartlett’s voice mail, he probably revisited the budgetary issue,
and then recommended that the waiver be granted because of new funds
the USAO had received. Nowacki denied using political considerations to
assess the waiver request and said he probably revisited the issue to try
to stop Bartlett from calling so often. Nowacki also stated that he did not
recall that he had quickly notified the district of EOUSA’s decision to
approve the waiver request after receiving Bartlett’s voice mail. Nowacki
did not mention any role played by former ODAG Chief of Staff Michael
Elston in the waiver decision.
We interviewed Elston after our first interview of Nowacki. Elston
told us that after Goodling resigned from the Department, Nowacki called

him regarding a waiver request for an AUSA candidate whose name he
did not recall. 27 Elston said that Nowacki told him that he usually
consulted with Goodling about waiver requests, that he had a résumé
from an AUSA candidate for the Western District of Washington, and that
“[the résumé] looks okay, although she clerked for a liberal judge.”
According to Elston, Nowacki told him that the judge was Diana Murphy
from the Eighth Circuit Court of Appeals. Elston told us he knew Judge
Murphy well and thought highly of her. Elston said he told Nowacki that
his criteria were not appropriate and that he did not want Nowacki to call
him again regarding these kinds of issues.
Elston said he believed that although Nowacki was not making a
formal recommendation to him, Nowacki thought that the candidate was
acceptable despite her clerkship for Judge Murphy. Elston said that he
also told Nowacki that AUSA waiver requests should be decided by
EOUSA based on traditional, not political, criteria, such as the USAO’s
financial status.
After Elston’s interview, we re-interviewed Nowacki, who described
his conversation with Elston differently. Like Elston, Nowacki said that
after Goodling left the Department he called Elston about a waiver
request and probably referred to the candidate’s résumé. Nowacki said
that Elston told him that waiver decisions should be made in EOUSA and
ended the conversation. Nowacki denied that he had commented to
Elston that the candidate worked for “a liberal judge” and that Elston
had told him that such comments were not appropriate.
However, we found Elston’s version of the conversation to be more
credible for several reasons. First, Elston remembered the conversation
clearly. Elston also provided the information without us asking about
the specific incident, and his recollection corresponded to the facts of the
incident.
In addition, as we discuss below in Chapter Seven, Nowacki
admitted in another context to providing inaccurate information to senior
Department officials regarding Goodling’s use of politics to screen
candidates for details to EOUSA.
In sum, we credited Elston’s testimony and concluded that
Nowacki considered political or ideological affiliation – the candidate’s
clerkship for a judge appointed by a Democrat – when initially assessing
Although both Elston and Nowacki stated that the conversation took place
after Goodling left the Department, based on the dates of the e-mails discussed above
we believe it occurred during her last full week in the Department, which ended
March 16, 2007.
27

the waiver request. However, we also note that, after the conversation
with Elston, Nowacki approved the waiver.
B.

Recent Changes in the Waiver Process

On July 20, 2007, then Attorney General Gonzales announced to
the Department a series of reforms prompted by allegations regarding the
politicization of hiring within the Department. One of those reforms
involved waiver requests:
I directed the Executive Office of U.S. Attorneys to reaffirm
DOJ policy applicable to the vetting process for the hiring of
AUSAs by interim or Acting U.S. Attorneys. In conjunction
with this, I have instructed EOUSA to ensure that this
vetting process remains within EOUSA and not with political
appointees in the senior management offices.
Former EOUSA Acting Director Steven Parent, who served as
Acting Director after Battle left EOUSA, told us that he disagreed with
the practice of EOUSA staff reviewing AUSA candidate résumés in
connection with waiver requests. The current EOUSA Director, Kenneth
Melson, agreed with this position and has discontinued EOUSA’s practice
of reviewing résumés of AUSA waiver candidates. Melson told us that “if
the practice of reviewing résumés was continued . . . there could be a
perception created that EOUSA was applying some sort of political litmus
test to the candidates that was not relevant to their qualifications to be
an AUSA.” As a result, EOUSA no longer reviews the résumés of
candidates when deciding waiver requests. Rather, it assesses those
requests based on the budgetary status of the USAO, whether the
President has nominated a permanent U.S. Attorney, and the status of
any such nomination.
C.

Analysis

Based on our investigation, we concluded that Goodling and
Nowacki improperly used political or ideological affiliations when
assessing waiver requests from interim U.S. Attorneys in at least three
cases, which violated Department policy and federal law, and also
constituted misconduct.
The most troubling case involved a request from Washington, D.C.
interim U.S. Attorney Taylor. Goodling did not initially approve the
waiver request. When Taylor called Goodling about the pending request,
she told him that the candidate gave her pause because, judging from his
résumé, he appeared to be a “liberal Democrat.” Goodling also
mentioned that because Republicans had lost control of Congress after
the November 2006 elections, she expected that Republican

congressional staff might apply to the USAO in Washington. Taylor
rightfully responded that these were impermissible considerations and
that U.S. Attorneys will lose credibility if they are perceived to make
politicized hiring decisions.
Yet, even after this discussion, Goodling did not initially approve
the waiver request. Only after Taylor complained to OAG Chief of Staff
Sampson, who directed Goodling to approve the request, did Goodling
send an e-mail approving the waiver.
In the second case, the interim U.S. Attorney in Missouri, Bradley
Schlozman, requested a waiver to hire an AUSA. He provided Nowacki
with the résumés of three candidates for the position, calling them “rocksolid Americans” who would be a “hugely positive legacy for this
Administration.” Schlozman promoted the three candidates in terms of
their conservative political credentials. Goodling and Nowacki approved
Schlozman’s waiver request and told him he could hire “one more good
American.” While none of these three candidates was eventually hired,
Schlozman explained his description of the candidates’ political
affiliations as an attempt to maximize his chances of having Goodling
approve the waiver request.
In the third case, Nowacki approved a waiver request from the
Western District of Washington. However, according to former ODAG
Chief of Staff Elston, when Nowacki contacted him for approval of the
request, Nowacki stated that the candidate’s “[résumé] looks okay,
although she clerked for a liberal judge.” Nowacki denied to us that he
made such a comment. However, as discussed above, we found Elston’s
version of the conversation to be more credible.
We did not find evidence that Goodling considered political or
ideological affiliations in other waiver requests from interim U.S.
Attorneys. As noted above, we surveyed 30 interim U.S. Attorneys, most
of whom were career Department prosecutors. Twenty of the 30 stated
that they had made waiver requests. Aside from the incident concerning
U.S. Attorney Jeffery Taylor, none said they had any indication or
evidence that Goodling used political or ideological affiliations in deciding
their waiver requests.
We were concerned, however, that in deciding waiver requests from
interim U.S. Attorneys, both Goodling and Nowacki reviewed résumés of
AUSA candidates – candidates who had already been interviewed and
screened by the USAOs. According to longstanding Department practice,
the waiver requests should have been made based on budgetary
considerations, information concerning whether the President had
nominated a permanent U.S. Attorney, and the status of any such

nomination, not Goodling’s or Nowacki’s assessment of the qualifications
of the candidate. The Department’s current practice, which was changed
after Goodling left the Department, places the decision in EOUSA, which
now does not review résumés when deciding on waiver requests. We
believe that the changes in the Department’s practices for considering
waiver requests are important reforms that will help ensure that the
political and ideological affiliations of AUSA candidates are not
considered in future waiver decisions.
II.

Other Career Attorney Positions

In the course of our investigation we also found evidence that
Goodling considered political or ideological affiliations in recommending
candidates for other kinds of career attorney positions in the
Department.
As the Department’s White House Liaison, Goodling received
résumés and interviewed candidates for a variety of political positions.
Sometimes, however, candidates for political positions also expressed an
interest in being considered for career positions within the Department.
In these cases, we found evidence that Goodling used her position in the
OAG to promote these candidates for career positions.
As we described above, the use of political affiliation to assess
candidates for career positions violates federal law. The law prohibits,
among other things, persons with “authority” from “recommend[ing]” any
“personnel action” on the basis of political affiliation. 28 5 U.S.C. Section
2302(b). We discuss below several examples of Goodling recommending
candidates for career AUSA positions because of their political or
ideological affiliations, which she noted on their applications.
A.

The USAO for the District of Columbia

On December 5, 2006, Goodling received a résumé from a friend
which indicated that a candidate who was interested in working in the
Department was employed by the Federalist Society. In a December 5,
2006, e-mail responding to the person who had forwarded the résumé to
her, Goodling identified several career positions in the Department for
which the candidate might be considered: “DC USAO is hiring and Civil

Goodling could argue that as White House Liaison she did not have the
“authority” to “recommend” career attorney applicants. However, on many but not all
occasions, Goodling’s recommendations regarding career hires were accepted by those
receiving her suggestions.
28

Rights needs a really young, bright lawyer . . . . OLC is hiring . . . . I’ll
send her resume over as they generally hire through the career process.”
On December 5, Goodling forwarded the candidate’s résumé to
Steven Bradbury in OLC. Goodling commented, “Am attaching a resume
for a young, conservative female lawyer. Perhaps she is someone you
might consider for one of your attorney-advisor slots . . . . I’ll likely have
her in to chat about political opportunities, but let me know if you’d be
interested in her for OLC.” Attorney-advisor positions in OLC are career,
not political, positions.
Goodling interviewed this candidate on December 18, 2006. Prior
to the interview, the candidate completed a Non-Career PPO form in
which she indicated that she was a Republican.
The candidate told us that during the interview Goodling
mentioned that there were positions open in the ODAG and in the
Criminal Division. According to the candidate, Goodling asked questions
about the candidate’s voting history, whether she voted for the President,
whether she had worked on a political campaign, and what kind of
conservative she was. Goodling also mentioned to the candidate that the
USAOs in Florida, Minnesota, Colorado, and the Western District of
Washington might be hiring (all of these positions would have been
career AUSA positions).
The handwritten notes Goodling took during this interview
contained the following phrases: “pro-God in public life,” and “pro
marriage, anti-civil union.” The candidate told us she had no specific
recollection of making such statements during her interview with
Goodling, and could not recall whether Goodling had solicited her views
on religion in public life.
Soon after interviewing with Goodling, the candidate was
interviewed by senior staff in the ODAG and Criminal Division for
political positions. Goodling also called the candidate to ask if she was
interested in being hired as an AUSA in the District of Columbia,
followed by an immediate detail to the ODAG. The candidate said she
was interested in such an arrangement, so Goodling forwarded her
résumé to Jeffery Taylor, the interim U.S. Attorney for the District of
Columbia.
Taylor interviewed the candidate on January 19, 2007. In a
departure from the office’s usual hiring procedures, which consisted of
interviews with multiple USAO officials and other assessment measures,

Taylor was the only person at the USAO to interview the candidate. 29
During the interview, the candidate and Taylor discussed her possible
detail to the ODAG.
On January 23, 2007, Goodling sent Taylor an e-mail asking that
he contact the candidate before she accepted another employment offer.
The candidate thereafter received and accepted offers from both the
ODAG and the Washington, D.C. USAO. She was hired as an AUSA in
the USAO and then immediately detailed to the ODAG. 30 During her
tenure in the ODAG, she applied for and received a career AUSA position
in a different USAO.
In this case, we concluded that Goodling used political or
ideological affiliations when recommending a candidate for a career
position as an AUSA.
B.

The USAO for the District of Colorado

In June 2006, Matthew Friedrich, then Chief of Staff to the
Criminal Division Assistant Attorney General, sent a résumé to Goodling
of a former AUSA who had worked on the Enron task force. Prior to his
interview with Goodling, the candidate was given a Non-Career PPO form
to complete. 31 In the PPO form, the candidate said he was a Republican,
had made financial contributions to the Bush/Cheney campaigns, and
had been a Republican office holder in contested elections.
Goodling asked the newly confirmed U.S. Attorney for Colorado to
consider the candidate for the First Assistant U.S. Attorney position,
During this process, Taylor promptly responded to Goodling’s requests that
the candidate be interviewed and that her application be acted upon quickly. Taylor
also sought guidance from Goodling on what salary he should offer the candidate.
Taylor told us that he did not hire the candidate because of her political affiliation, but
acknowledged he was trying to be responsive to Goodling and the OAG by interviewing
and hiring the candidate. However, Taylor said that the candidate was well qualified for
an AUSA position, and that his office routinely hires new AUSAs without litigation
experience, which she lacked. Taylor provided résumés of other recent AUSA hires in
his office, which confirmed that Taylor has hired other AUSAs without prior litigation
experience. Taylor also said that he sometimes hires AUSAs without going through the
normal multi-step hiring process, but he acknowledged that those AUSAs are usually
experienced litigators.
29

30 Taylor told us that the USAO did not pay the candidate’s salary while she was
detailed to the ODAG.

In the candidate’s hiring survey response, he said he did not complete the
form. However, the documentary evidence we found in Goodling’s folder containing the
candidate’s résumé shows that he did complete the PPO form, which he signed and
dated on July 27, 2006.
31

which is a career position. She stated in an e-mail that the U.S. Attorney
“really needs someone to go into the office with him that is on the team,
has statute [sic], fed pros experience, and white collar trial experience . .
. . [the candidate] meets all the specs . . . . (emphasis added).” Based
on the results of our investigation, and of the other joint investigations
we have conducted, we concluded that the phrase “on the team” referred
to politically conservative individuals.
On August 23, 2006, the U.S. Attorney announced that he had
selected the candidate as his FAUSA. On that date, Goodling sent an email to Kyle Sampson and Michael Elston forwarding the announcement.
In the e-mail, Goodling commented that she “had interviewed [the
candidate] and recommended him . . . .”
We concluded that Goodling solicited political information from,
and then described in ideological terms, a candidate whom she
recommended for a career position.
C.

EOUSA Deputy Director Position

We also investigated allegations that Goodling discriminated based
on political or ideological affiliations against detailees in EOUSA who
were candidates for an EOUSA Deputy Director career position.
1.

EOUSA Deputy Director Candidate #1

In August 2004, EOUSA published a vacancy announcement
seeking candidates for a permanent career SES Deputy Director. An
EOUSA Deputy Director, on detail from her position as an AUSA from the
District of Columbia, applied for the position. According to both thenEOUSA Director Mary Beth Buchanan and the AUSA, Buchanan told the
AUSA that she had been selected for the position. 32 In a December 23,
2004, e-mail, Buchanan wrote to the AUSA: “You can tell [ODAG Chief
of Staff Chuck Rosenberg] that I told you I was recommending that you
be hired for the Job. I am the selecting official, but I believe that your
selection must be approved by the SES board.” 33

Buchanan is the U.S. Attorney for the Western District of Pennsylvania. She
also served as the Director of EOUSA from approximately June 2004 to June 2005.
32

33 Buchanan was interviewed by congressional investigators on June 15, 2007,
in connection with the congressional investigation of the circumstances surrounding
the removal of several U.S. Attorneys in 2006. In her congressional testimony,
Buchanan was asked why she did not make the AUSA the EOUSA Principal Deputy
Director. Buchanan responded by severely criticizing the AUSA and said she would
never have offered her that job because of those criticisms. However, Buchanan did not
(Cont’d.)

However, the AUSA was never appointed to the career SES Deputy
Director position. The AUSA told us her selection was put on hold
during the transition between Attorney General Ashcroft and Attorney
General Gonzales.
After Gonzales became the Attorney General in February 2005, the
AUSA remained in her detailee position as Deputy Director, and the
career SES position remained unfilled. Goodling was appointed in March
2005 by the OAG as the political Deputy Director in EOUSA, and
Buchanan continued to serve as Director of EOUSA until June 2005,
when she returned to the Western District of Pennsylvania USAO as the
full-time U.S. Attorney.
Buchanan told us that the AUSA did not receive the career SES
Deputy Director position by the time Buchanan had decided to leave
EOUSA and return full time to the USAO. According to Buchanan, then
White House Liaison Susan Richmond told her not to select the AUSA
because a new EOUSA Director should have the opportunity to select his
or her deputies. While Buchanan said she informed the AUSA of
Richmond’s decision, the AUSA told us that she did not recall Buchanan
ever telling her this information.
Richmond recalled these events differently from Buchanan.
Richmond said she recalled discussing the possibility of the AUSA
becoming the career SES Deputy Director with Buchanan, but she did
not recall that Buchanan ever wanted to select her for that position.
Richmond said she recalled having the discussion with Buchanan about
the AUSA in the context of identifying potential candidates that could be
suggested to Buchanan’s successor as EOUSA Director.
According to the AUSA, shortly after Battle became EOUSA
Director in June 2005, he told her she would not be offered the career
SES Deputy Director position and that she had to leave EOUSA. 34 The
tell the congressional investigators that she had offered the AUSA the career SES
Deputy Director position.
When we interviewed her, Buchanan told us that she did not believe her
testimony to Congress was inconsistent with the fact that she offered the AUSA the
career SES Deputy position because the positions were different. She noted that she
was asked by Congress about the Principal Deputy Director, not the career Deputy
Director position.
While we concluded that Buchanan’s congressional testimony was technically
accurate, we believe she should not have omitted the fact that she had told the AUSA
she had selected her to be EOUSA’s career Deputy Director.
On June 12, 2005, the AUSA sent an e-mail to ODAG Chief of Staff Chuck
Rosenberg in which she described her “tortured quest for the SES position.” The e-mail
(Cont’d.)
34

AUSA also said that Battle told her that she had to move out of her
current office to an office down the hall, and she could no longer review
memoranda regarding substantive issues or attend EOUSA meetings.
She said that when she asked Battle about these restrictions, he told her
that Goodling, who came to EOUSA in March 2005, had a problem with
her and could not work with her. The AUSA said that when she pressed
Battle for the reasons why she had to leave, Battle told her that there
was a problem because she was a Democrat and therefore Goodling
could not trust her.
The AUSA said that Battle also told her that he knew she was a
very good trial attorney and so should be happy to return to the USAO.
She said she responded to Battle that she wanted to stay at EOUSA as
his deputy. She said that Battle then was blunt with her and told her “in
no uncertain terms” that she had to leave EOUSA. According to the
AUSA, Battle directed her to announce her departure publicly. When she
noted that she had not yet found another position, she said Battle still
directed her to send out the announcement.
The AUSA sent an e-mail announcement of her departure from
EOUSA on July 21, 2005. The next day, Battle sent an announcement to
all U.S. Attorneys regarding her departure, as well as the announcement
of the arrival of EOUSA’s new Chief of Staff.
Battle provided us with a different account of the circumstances
surrounding the AUSA’s departure from EOUSA. Battle stated that he
was aware that Buchanan had offered her a career SES position as
Deputy Director. Battle said that he understood that by the time he
became EOUSA Director the offer had been withdrawn or otherwise was
not acted upon. Battle said that the AUSA asked him to “resurrect” the
career SES Deputy position.
Battle adamantly denied that he asked the AUSA to leave EOUSA.
He said he only asked her to move to a different office in EOUSA. He
said the AUSA’s former office was directly across the hall from his and he
wanted that office for his secretary so that he could communicate better
with her.
Battle also denied telling the AUSA that Goodling did not trust her
because she was a Democrat, or that Goodling wanted her to leave
EOUSA because she was a Democrat. Battle said that he may have told
stated that Battle “seemed stunned to hear that my job had been posted, that I had
applied for it, and that in December . . . MBB [Buchanan] had actually told me that she
had selected me for the job.”

the AUSA she had a “Monica problem” because of the constant tension
between the two, but not because of the AUSA’s political affiliation.
Battle said that he thought that the AUSA was a Democrat, but thought
that the AUSA told him that, not Goodling. 35
Battle acknowledged that he reassigned some of the AUSA’s duties
to Goodling shortly after he arrived in EOUSA. He said he did so
because the AUSA had a larger portfolio than Goodling even though both
were EOUSA Deputy Directors. Battle said he wanted them to have
similar workloads. Battle said the AUSA considered this to be a
demotion, but in his view it was not.
Battle said that the AUSA told him that she was thinking about
leaving EOUSA, and he asked her to stay. Battle said that the AUSA’s
departure was not because Goodling requested or wanted it. He also
denied the AUSA’s claim that he demanded that she make a public
announcement about her departure before she had secured another
position. Battle stated that although he told her to announce her
departure to her staff, he believed that she had already obtained another
detail when he asked her to do so. Battle said that he told the AUSA to
tell her staff she was leaving so that they would know that she was
taking another position.
We found only one contemporaneous e-mail concerning the AUSA’s
departure from EOUSA. On July 23, 2005, 2 days after the AUSA
publicly announced her departure from EOUSA, she sent an e-mail to
ODAG Chief of Staff Rosenberg stating that Battle “told me he wanted my
resignation on Thursday – before I heard back from [a prospective
employer] – I was thrown for a loop.”
Other EOUSA employees had different recollections of the
circumstances surrounding the AUSA’s departure from EOUSA.
Buchanan said that Battle told her that the AUSA left EOUSA voluntarily
after he had reassigned her office and her responsibilities. Similarly,
EOUSA Deputy Director and Chief of Staff John Kelly stated that he
believed the AUSA left EOUSA voluntarily and that Battle had asked her
to stay.
In contrast, Dan Villegas, then Counsel to EOUSA’s Office of Legal
Programs and Policy, said he understood that the AUSA was asked to
leave EOUSA. He said the AUSA also told him sometime in 2007 that
Battle had informed her she had “a Monica problem.” An AUSA who was
35 Buchanan also said that Goodling had never told her that the AUSA was a
Democrat.

on detail at the time as the EOUSA Deputy Counsel to the Director also
told us that the AUSA stated to her that she was asked to leave EOUSA.
When Goodling testified before the House Judiciary Committee on
May 23, 2007, she was asked whether she sought to deny the AUSA a
promotion because Goodling believed she was a Democrat. Goodling
responded:
You know, I don't really remember the discussions back at
that time very well. What I remember was that she had been
the deputy for a long time by herself, and when I arrived, a
lot of the responsibilities that she had were shifted to me. I
thought she resented that, and as a result, it made for a
tense office environment.
However, Goodling did not answer the question whether she tried to deny
the AUSA’s promotion for political reasons.
Numerous witnesses, including former EOUSA Director Battle,
other EOUSA managers, and EOUSA line personnel, told us that the
AUSA and Goodling had an extremely strained relationship that bordered
on outright hostility. For example, former EOUSA Chief of Staff Kelly,
who served at EOUSA from June 2005 until May 2007, said that the two
“despised each other.” According to Battle and others, at least part of
the reason for the hostility was that Battle had reassigned some of the
AUSA’s responsibilities to Goodling.
In sum, we believe there was insufficient evidence to conclude that
the AUSA was forced to leave EOUSA because of political or ideological
affiliations. Battle denied telling the AUSA there was a problem because
she was a Democrat and that Goodling could not trust her. In addition,
while the AUSA was told she had a “Monica problem,” we also found
significant evidence that the relationship between Goodling and the
AUSA was personally very hostile. We therefore could not conclude,
based on the evidence, that the reason the AUSA was not appointed to be
the career SES EOUSA Deputy Director, or the reason she left EOUSA,
was because of her political affiliation.
2.

EOUSA Deputy Director Candidate #2

In 2006, EOUSA again published an announcement seeking a
career SES Deputy Director. This was the same position for which the
AUSA discussed above had applied, and for which no one had been
selected.
The EOUSA Chief of Staff to Battle, who was on detail from an
AUSA position in the Western District of New York, applied for the

position. Battle told us that he was prepared to offer the AUSA the job,
but Goodling vetoed the selection. By this time, Goodling was working in
the OAG as White House Liaison, although, as noted above, she retained
responsibility for certain EOUSA hiring issues.
Battle gave us two explanations for why he believed Goodling
refused to let him hire the AUSA. First, Battle said that Goodling did not
like the AUSA, and second, Goodling told Battle she thought the AUSA
was a “political infant” who had not “proved himself” to the Republican
Party by being involved enough in political campaigns. 36
The AUSA told us Battle informed him that Goodling had vetoed
his selection and that Goodling thought he was a “political infant” and
that he had not “proven” himself “to the [Republican] Party.”
The AUSA also told us that when he first came to EOUSA as a
supervisor in 2005, Goodling (who was then the EOUSA political Deputy
Director) had told him that she disapproved of his appointment because
she believed that his position should have been held by a political
appointee, not a career attorney. According to the AUSA, when both he
and Goodling worked in EOUSA, Goodling told him that he could not
attend meetings with Department component heads and that all contacts
with USAOs should go through her.
No one was selected for the position of career SES Deputy Director
as a result of the second vacancy announcement. We asked Battle why
Goodling, as White House Liaison, had veto power over his selection of
career positions in EOUSA. Battle stated that he believed that both the
ODAG and OAG had control over the selection of SES positions in
EOUSA, whether career or political.
III.

Conclusions Regarding Candidates for Career Positions

In sum, we concluded that the evidence showed that Goodling
violated both federal law and Department policy, and therefore
committed misconduct, when she considered political or ideological
affiliations in hiring decisions for candidates for career positions within
the Department. In particular, the evidence showed that she considered
political or ideological affiliations in deciding several waiver requests from
interim U.S. Attorneys, in promoting several candidates for career

The AUSA told us he was a Democrat in 2004, and made a small financial
contribution to the Democratic Party as well. He changed his political affiliation to the
Republican Party at some point before applying for the career SES position.
36

positions, and in disapproving a candidate for an EOUSA career SES
position.

CHAPTER FIVE
EVIDENCE AND ANALYSIS:
CANDIDATES FOR TEMPORARY DETAILS
When she was in the OAG, Goodling was also involved in the
selection of career attorney candidates for temporary details to
Department offices, including the ODAG, OLP, and EOUSA. During the
course of our investigation, we examined the extent to which Goodling
made decisions regarding the selection of detailees on the basis of
political or ideological affiliations. In addition, we examined whether
Susan Richmond and Jan Williams, the Department’s former White
House Liaisons, considered political or ideological affiliations when
evaluating career attorney detailees to Department offices.
I.

Goodling

In connection with her May 23, 2007, congressional testimony,
Goodling submitted a written statement in which she discussed her role
in selecting career attorney detailees for Department offices:
Due to the importance of these positions and the fact that
detailees were sometimes considered for promotions into
political positions, I generally conducted internet research
and reference checks on these candidates, and I may have
asked the wrong questions at times. In some cases, I
learned and considered political information.
Goodling also asserted in her congressional testimony that senior
Department managers were aware that she was using politics to screen
career candidates for detail positions: “I think that they had a sense that
I was looking for people that were generally Republicans to work on their
staffs as detailees, and those were people who currently held career
positions.”
Goodling’s testimony that she used political considerations when
assessing potential detailees was confirmed by several witnesses.
For example, Michael Elston, former Chief of Staff to Deputy
Attorney General Paul McNulty, stated that when he sought attorneys for
details to the ODAG, he would generally look for candidates with the type
of experience required by the position, but he also looked for candidates
with Republican or conservative credentials in order to get them
approved by the OAG. Elston said that Goodling made it clear to him
that she did not want Democrats detailed to the ODAG because she had

a “farm system” approach to filling vacancies in the Department, and she
wanted to “credential” Republicans so that they could move on to higher
political positions. 37 Elston also stated that there were some
Republicans that Goodling did not want to hire as detailees because they
were not “Republican enough.” In addition, EOUSA senior management,
including Director Battle, Deputy Director Nowacki, and Associate
Counsel Natalie Voris, all told us that during the time Goodling served in
the OAG, she used political or ideological affiliations to assess candidates
for EOUSA details.
Because there were a limited number of detailees, Goodling did not
screen a large number of detail candidates during her tenure in the OAG.
However, the evidence showed that, when she did, she based her
decisions in whole or in part on the candidates’ political or ideological
affiliations.
We provide in the following section examples of Goodling’s use of
political or ideological affiliations in selecting detailees.
A.

Candidate #1

On September 6, 2006, EOUSA notified all USAOs that it was
seeking a detailee to work on counterterrorism issues. The notice stated
that applicants must have counterterrorism prosecution experience, and
that 5 years of criminal prosecution experience was preferred.
On September 19, 2006, an AUSA sent Voris his application for the
counterterrorism detail. EOUSA Director Battle’s calendar shows that
the AUSA was interviewed by video-teleconference on September 29,
2006.
The candidate had been an AUSA since 1987. He was an
experienced terrorism prosecutor and had successfully prosecuted a
high-profile terrorism case for which he received the Attorney General’s
Award for Exceptional Service. He had also litigated several other
terrorism cases and prosecuted major criminal cases. The candidate
also served as chief of the anti-terrorism unit in his USAO, working with
two joint terrorism task forces containing multiple agencies and agents,
and he had communicated frequently with senior Department leadership
with responsibility for terrorism issues.

Goodling acknowledged in her congressional testimony that she hired people
in part because she thought “that it would be good if we could hire some people that
could be other U.S. attorneys down the road.” This is consistent with Elston’s
testimony that Goodling sought to “credential” candidates.
37

Battle stated that Voris told him that the candidate was head and
shoulders above the other candidates who had applied for the
counterterrorism detail. Battle agreed with that assessment, stating that
the candidate was the best applicant for the detail. John Kelly, the
EOUSA Deputy Director and Chief of Staff, stated that he and Battle
wanted to hire the candidate because he was one of the leading terrorism
prosecutors in the country and a very talented attorney.
The candidate’s wife was a prominent local Democrat elected
official and vice-chairman of a local Democratic Party. She also ran
several Democratic congressional campaigns. The candidate was at
times a registered Independent and at other times a registered Democrat.
Notwithstanding the candidate’s outstanding qualifications and
EOUSA senior management’s desire to hire him, Goodling refused to
approve the detail.
Battle, Kelly, and EOUSA Deputy Director Nowacki all told us that
Goodling refused to allow the candidate to be detailed to EOUSA solely
on the basis of his wife’s political party affiliation. Battle said he was
very upset that Goodling opposed the detail because of political reasons.
Nowacki told us that Goodling informed him that the candidate’s wife
was a Democrat, and Nowacki believed that Goodling refused to allow the
detail because of this fact. Similarly, Kelly told us that Goodling refused
to allow EOUSA to hire the candidate because his wife was active in
Democratic politics.
Battle said that he and Voris went to Goodling several times to
argue that EOUSA should be allowed to hire the candidate, but they were
not successful. Battle told us he did not appeal Goodling’s refusal to
allow the candidate to be detailed to EOUSA because he did not think it
would be successful given that Goodling worked in the OAG.
The candidate was never informed that he did not get the
counterterrorism detail.
Because EOUSA had been unable to fill the counterterrorism detail
after Goodling vetoed this candidate, a current EOUSA detailee was
asked to assume EOUSA’s counterterrorism portfolio. This replacement
detailee had been an AUSA since September 2004, after having served as
an assistant district attorney for 3 years. He had been detailed to
EOUSA in 2006. He had no counterterrorism experience and had less
than the minimum of 5 years of federal criminal prosecution experience
required by the EOUSA job announcement. Battle, Nowacki, Kelly, and
Voris all said they thought that he was not qualified for the position,
since he had no counterterrorism experience. The replacement

candidate was a registered Republican who Goodling had interviewed
and approved before he was selected for his EOUSA detail.
In sum, we concluded that Goodling prevented EOUSA from
selecting an experienced career AUSA to handle counterterrorism issues
because of his and his wife’s political affiliation. As a result, a much less
experienced, but politically acceptable, attorney was assigned this
important responsibility.
B.

Candidate #2

In 2006, an AUSA was contacted by Ron Tenpas, then Associate
Deputy Attorney General and the AUSA’s former supervisor at her USAO,
about the possibility of her being detailed to ODAG to work with its
criminal litigation team. 38 The candidate said she was interested, and
interviewed first with White House Liaison Jan Williams and then with
ODAG Chief of Staff Elston. According to Williams’s calendar, these
interviews occurred on March 16, 2006.
Before these interviews, Tenpas asked the candidate about her
political party affiliation. When the candidate said she was a Democrat,
Tenpas told her it should not be a problem. The candidate told us that
Williams asked her during the interview whether she had any problem
supporting President Bush’s policies, and she replied that she had no
issue with supporting the Department’s priorities.
When Elston interviewed the candidate, he asked the candidate if
Williams had either questioned her about her party affiliation or
indicated whether she knew about it. The candidate replied that she did
not think her party affiliation was going to be an issue with Williams.
The candidate also told Elston that then Principal Associate Deputy
Attorney General (PADAG) William Mercer was aware of her party
affiliation, because Tenpas had called her and told her that Mercer
wanted to know if she would feel comfortable working in an office
comprised of people with a different political affiliation.
Elston sent an e-mail to Williams on March 23, 2006, saying that if
Williams was comfortable with the candidate, Elston would set up an
interview with Deputy Attorney General McNulty. Williams replied that
she was. The candidate was interviewed by McNulty and received and
accepted an offer to be detailed to the ODAG. Because the offer was only
for a 6-month detail, the candidate was concerned, however, about giving
38 The candidate had been an AUSA since 1996, had received several
promotions in the USAO, and was made a Branch Chief in 2003.

up her USAO Branch Chief position for such a short detail. When she
contacted Elston about this concern, he told her that extending the detail
should not be an issue, and she subsequently accepted the detail.
The AUSA said that shortly before her 6-month detail in the ODAG
was to expire, she received the impression from Elston that there might
be a problem in extending it. At that time Williams had been replaced by
Goodling as the Department’s White House Liaison, and Goodling had to
approve the extension.
In November 2006, the detailee discussed her detail extension with
Elston, who told her that Goodling had strong views about putting
Republicans in ODAG positions. The detailee said Elston was frustrated
with Goodling because she opposed extending her detail. The detailee
said that Elston told her repeatedly that he and Deputy Attorney General
McNulty wanted her detail extended.
Elston told the detailee that he was going to meet with both
Goodling and Sampson about her detail extension. Before the meeting,
the detailee sent Elston an e-mail dated November 9, 2006, in which she
wrote, “I honestly did not realize that my party affiliation was going to
pose such a problem, mostly because no one indicated that it was a
stumbling block when I first came on . . . . although I am a registered
Democrat, the most political thing I do is vote.” Elston responded, “the
DAG, Ron [Tenpas], and I all want you in ODAG.”
Elston confirmed to us that when the detailee’s 6-month detail
ended, McNulty, Tenpas, and he all thought that it should be extended.
Elston said the detailee had been working on the President’s Identity
Theft Task Force and was doing an outstanding job.
The detailee said that after Elston met with Goodling and
Sampson, Elston reported that they would only agree to a 3-month
extension of her detail. The detailee said Elston told her he had
humiliated himself and got down on his knees to even get this temporary
extension.
The detailee said that, at the end of the 3-month extension, the
detail was further extended for short periods for several different reasons
related to finishing projects on which the detailee was working.
E-mails between Elston and Goodling confirm that this detail
extension was a recurring issue between the ODAG and Goodling in
2006 and 2007.
Elston told us he thought he met with Sampson regarding the
issue of the detail extension. Elston said he inferred that Sampson

backed Goodling’s decision not to extend the detail for another 6 months
because otherwise ODAG would have been able to keep the detailee.
Sampson told us that he remembered there had been negotiations over
extending this particular detail and that Goodling had worked with
ODAG on the issue. Sampson said he did not recall that the issue
regarding the detail extension was that the detailee was a Democrat.
Sampson also said he did not recall meeting with Elston to discuss the
detail extension.
McNulty stated that the detailee was outstanding, was a great
person to work with, and he wanted to extend her detail. McNulty gave
several reasons why Goodling opposed the extension. He said that
Goodling’s opposition was based both on the detailee’s perceived failure
to support administration policies and also based on her political party
affiliation. 39
Shortly after Sampson and Goodling left the Department in March
2007, Elston and McNulty told the detailee that she could stay at ODAG.
The detailee, however, had already accepted an offer for a supervisory
position at her USAO, and she declined the ODAG’s offer.
C.

Candidate #3

An AUSA had been detailed to EOUSA in 2005, working first in the
General Counsel’s Office and then in the Office of the Counsel to the
Director. During the AUSA’s detail, EOUSA Associate Counsel Voris
forwarded her résumé to Goodling for consideration of appointing the
AUSA as the EOUSA’s Project Safe Neighborhoods coordinator. 40 The
AUSA was not aware of Voris’s recommendation.

There is also conflicting evidence regarding whether McNulty was
contemporaneously aware that Goodling refused to extend this detail because of
political affiliation. The detailee said Tenpas told her that McNulty thought that she
was leaving ODAG voluntarily and was very upset to learn that Goodling had forced her
to leave. According to the detailee, the day after Tenpas told McNulty that she was
forced to leave, McNulty went to her office and told her he was very disappointed and
did not understand how this could have happened. However, Elston told us he would
have kept McNulty informed about these issues, and he would not have gone to a
meeting about extending the detail with Sampson and Goodling without consulting with
McNulty. Although we asked McNulty whether he was contemporaneously aware that
Goodling refused to extend the detailee’s detail because she was a Democrat, McNulty
said he had no firm recollection of this fact.
39

Project Safe Neighborhoods is a Department initiative that involves
collaborative efforts by federal, state, and local law enforcement agencies, prosecutors,
and communities to prevent and deter gun violence.
40

Voris told us that the AUSA was a “phenomenal attorney.” Voris
explained that while the detailee had worked in the EOUSA General
Counsel’s office and transferred to the Counsel to the Director’s Office,
Voris wanted to expand her portfolio to include the Project Safe
Neighborhoods coordinator position.
On August 6, 2006, Goodling sent an e-mail to her secretary to
arrange an interview with the AUSA. The interview occurred on
August 24, 2006.
The AUSA told us she did not know why Goodling had wanted to
interview her. When the AUSA arrived for the interview, Goodling’s
secretary gave her a Non-Career PPO form to complete. She asked
Goodling’s secretary why she needed to complete the form and was told
that she was being considered for a position. On the PPO form the AUSA
wrote that she voted Democratic in local elections due to the candidate
running, and voted Republican in the general election.
When the AUSA met Goodling to begin the interview, Goodling told
her she was not supposed to have been given the PPO form. Goodling
told her that she normally interviewed everyone hired in EOUSA, but had
not had a chance to talk to her and wanted to get to know her. The
AUSA said the interview was cordial and friendly, but that she was upset
about being asked to fill out the PPO form requiring disclosure of political
information.
Voris stated that Goodling subsequently rejected her
recommendation that the AUSA become EOUSA’s Project Safe
Neighborhoods coordinator. Voris said that Goodling told her that the
AUSA was a Democrat and rejected her for the coordinator position on
that basis.
The AUSA was detailed to the ODAG in 2007 after Goodling left the
Department.
D.

Candidate #4

On June 29, 2006, an AUSA applied for a 1-year detail to the
Office of Counsel to the Director of EOUSA. The candidate had been a
federal criminal prosecutor for 8 years, and a state criminal prosecutor
for 10 years. Nothing in the candidate’s résumé or cover letter indicated
her political party affiliation.
Voris stated that EOUSA Deputy Director Nowacki told her that
Goodling rejected the detail because Goodling believed the candidate was
a Democrat. Voris also said Nowacki told her that Goodling threw the
candidate’s résumé in the trash. Nowacki said he recalled that Goodling

did not like the applicant’s résumé and that she threw it in the trash, but
said he did not recall why.
The candidate told us that Goodling never interviewed her. The
candidate also said she did not know that Goodling was considering her
for any position and did not know that Goodling had rejected her detail
application.
E.

Candidate #5

A career attorney from the Department’s Criminal Division was
detailed to the ODAG in July 2005 for a short period to work on the
Department’s Project Safe Neighborhoods initiative, as well as other
issues such as anti-gangs initiatives, violent crime, and firearms.
In an October 2005 e-mail exchange, Sampson told William
Mercer, who was the Principal Associate Deputy Attorney General at the
time, that he thought highly of the candidate and supported the
possibility of extending her detail to the ODAG for a longer period.
Mercer replied that “Jan [Williams] says she’s a big D.” Sampson replied,
“I’ve heard that – even so, she’s very strong.”
Sampson told us that he wanted this attorney for an ODAG detail
and did not care that she was a Democrat. Sampson told us he knew
that the candidate supported the Project Safe Neighborhoods initiative,
which was her initial assignment in the ODAG, and so her political
affiliation did not matter to him. The candidate’s detail was extended
several times, and she served in the ODAG until July 2007 when she
became Counselor to the OLP Assistant Attorney General.
Elston told us, however, that either Williams or Goodling told him
that they did not want to extend the detail because she was a Democrat.
Elston said that the detailee’s supervisor told him that if the detailee left
ODAG, he would “throw himself out the window.” Elston said he felt the
same way about her. According to Elston, for a period of time the OAG
would only extend the detail on a month-to-month basis, until Goodling
grudgingly extended it for 6 months.
F.

Candidate #6

Goodling also appears to have rejected an EOUSA detailee at least
in part on the basis of her alleged political party affiliation, for three
positions: a detail to OLP, a detail to the ODAG, and an extension of her
EOUSA detail.
The detailee had been an AUSA since 2000. In 2005, she began
her EOUSA detail and overlapped with Goodling in EOUSA for several

months. She served in the EOUSA Office of Counsel to the Director for
17 months and then, for reasons described below, transferred to the
EOUSA General Counsel’s Office for the remainder of her detail. Her
responsibilities in her first position included violent crime and white
collar criminal matters.
According to the AUSA, in the fall of 2005, she spoke with Richard
Hertling, the OLP Principal Deputy Assistant Attorney General, about a
detail to OLP. According to the AUSA, the potential detail was to work on
violent crime issues for OLP, and her detail was to begin in January 2006
when her EOUSA detail ended. The AUSA said she also recalled
negotiations between EOUSA and OLP regarding who would be
financially responsible for funding the cost of a replacement for her in
the USAO while she was on detail. She said she was told that eventually
the issue had been worked out and that she was to start her OLP detail
on April 1, 2006.
On December 2, 2005, OLP AAG Rachel Brand sent an e-mail to
EOUSA Director Battle saying that “my senior staff raves about [the
AUSA] . . . . It sounds like she’d be able to make a significant
contribution to our policy development efforts . . . . I’d really appreciate
your support in [arranging for her to be detailed to OLP.]” Battle said he
subsequently approved the AUSA’s detail to OLP.
After some time had passed and she had not heard from OLP, the
AUSA called the OLP Chief of Staff who told her that the OLP detail had
been given to someone else. She then spoke with Hertling, who told her
that Goodling had rejected her detail because she was a Democrat.
Hertling told us that he had been very impressed with the AUSA
and wanted her to be detailed to OLP. He said that he discussed the
detail with Goodling, but that Goodling had an extremely negative
opinion of the AUSA from the time they had worked together in EOUSA.
According to Hertling, Goodling told him that the AUSA was “politically
unreliable” and Goodling questioned whether she supported the agenda
of the President and Attorney General. Hertling said that Goodling also
told him that the AUSA talked too much and did not get along with
people. Hertling said that he told the AUSA that Goodling questioned her
political reliability, but did not tell her about Goodling’s other negative
remarks.
The AUSA told us she informed Hertling she was not a Democrat,
but Hertling replied that since Goodling thought she was, she could not
be detailed to OLP. She said that Hertling counseled her to find another
position in the Department, and then come back to OLP after Goodling
left the Department.

Brand told us that she and Hertling wanted to hire the AUSA, but
did not because Goodling said very negative things about her. According
to Brand, Goodling said that the AUSA was insubordinate and would not
tell her supervisors what she was doing. Brand said she did not recall
Goodling telling her that the AUSA was a Democrat. Battle also said
Goodling did not like the AUSA because Goodling perceived her to be
aligned with an EOUSA Deputy Director whom Goodling disliked.
EOUSA Associate Counsel Voris said she had supported the
AUSA’s detail to OLP. According to Voris, when Goodling learned that
the AUSA was discussing a detail with OLP, Goodling became very
agitated and told Voris to prevent the detail. Voris appealed to Elston,
but Elston told Voris that he could not influence the decision. Elston
told us he did not recall this conversation, but said it was possible that it
had occurred.
After Goodling blocked the AUSA’s OLP detail, the AUSA learned
from Voris that Goodling also refused to extend her EOUSA detail. As a
result, she would have had to return to her USAO with only 2 weeks
notice. Voris stated that she supported the extension of the AUSA’s
EOUSA detail and had many conversations with Goodling about her
refusal to extend it. Voris said she told Goodling that she was treating
the AUSA unfairly. Voris stated that Goodling opposed extending the
detail because she held a grudge against the AUSA for siding with two
other EOUSA managers. Voris said that Goodling also told her she
opposed the AUSA’s detail extension because she was a Democrat.
EOUSA Deputy Director Nowacki told us Voris also informed him that
Goodling denied the detail extension because the AUSA was not a
Republican.
The AUSA told us she tried to meet with Goodling to discuss her
detail extension, but Goodling ignored her request for a meeting. The
AUSA then met with Kyle Sampson on March 15, 2006, to discuss
extending her detail. She told him that Goodling wanted to terminate her
detail immediately. That same day Sampson sent Goodling an e-mail
with the subject line “I know and like [the AUSA],” asking Goodling to tell
him what was going on between the AUSA and her. We did not find an email reply from Goodling and the AUSA reported that she never heard
back from Sampson after her meeting with him.
Sampson said he recalled meeting with the AUSA and asking
Goodling to work something out with her. Sampson said he did not
recall that party affiliation was an issue.

Voris told us she understood that the AUSA spoke to Sampson
about Goodling’s decision, but that Sampson told the AUSA he did not
have a say in the matter.
Voris told the AUSA that she could serve out the remainder of her
detail in EOUSA’s General Counsel’s Office, and the AUSA was
transferred to that office. The AUSA said she understood that Goodling
allowed her to move to the General Counsel’s Office because it was not a
policy-oriented position. The AUSA related this understanding in an
April 28, 2006, e-mail to Sampson in which she told him that she was
allowed to stay in Washington “but only if I was not working in a policy
position.” Voris confirmed that Goodling approved the AUSA’s transfer to
the General Counsel’s Office because that office did not make policy.
The AUSA said that after these two incidents, Elston told her that
he wanted to hire her to work in the ODAG but Goodling also refused to
allow that detail. The AUSA also recalled that Elston informed her that
he and Goodling had disagreed about whether the AUSA was a
Republican or a Democrat. The AUSA said that Elston knew she was a
Republican because he had asked her.
Elston told us he tried to hire the AUSA several times for the
ODAG. Elston said Goodling never gave him the real reason why she did
not like the AUSA, and said he did not recall a conversation in which he
and Goodling argued about whether the AUSA was a Democrat or
Republican. Elston said he did not think her party affiliation was
Goodling’s real reason for not approving the AUSA’s details.
Finally, the AUSA also told us about an occasion during which, in
Goodling’s presence, she had praised the intelligence of Patrick
Fitzgerald, the U.S. Attorney for the Northern District of Illinois. At the
time, Fitzgerald was handling the investigation of Lewis “Scooter” Libby.
According to the AUSA, Goodling reacted badly to her praise for
Fitzgerald and said something to the effect that Fitzgerald was not on the
Republican side or was against the party.
G.

Candidate #7

In the fall or winter of 2006, an EOUSA detailee, who had been a
career attorney with the Department since 1992 and who was working
temporarily with the Office of Legal Policy, expressed an interest in being
detailed to OLP. The candidate was interviewed by several of OLP’s
senior staff. Sometime after those interviews, OLP contacted the
candidate and told him he would need to interview with Goodling.
When the candidate went to Goodling’s office for his interview,
Goodling’s secretary gave him a Non-Career PPO form to complete. The

candidate said he declined to complete the form, since he was a career
employee seeking a temporary detail.
During his interview, Goodling asked the candidate questions
about which Supreme Court Justice, President, legislator, or person in
public life he admired most and the reasons for his choices. Goodling
also asked for his views on federalism. The candidate told us he
perceived those questions as indirect questions about his political
affiliation. 41
The candidate said that Goodling told him that the Attorney
General relied on OLP’s legal advice and that the Attorney General
expected to receive advice consistent with his policies and beliefs.
Goodling then asked if he had a problem with providing such advice.
The candidate said he was troubled by this question because it seemed
to contradict his belief that his legal advice should be based on an
objective assessment of the law and that the outcome of his advice
should not be predetermined. He told Goodling that one of the reasons
he enjoyed working with ODAG and OLP was that those offices listened
to the views of career attorneys.
At this time, Rachel Brand was the OLP Assistant Attorney
General. Brand told us that even though OLP wanted to hire the
candidate, Goodling would not permit OLP to do so because Goodling
disliked him. Brand said that although she was very annoyed that
Goodling could tell her who could be detailed to OLP, she did not
challenge Goodling because Brand said this was not a “fight worth
picking.”
Several weeks after his interview with Goodling, the candidate
called OLP to ask about the status of his detail and was told that
Goodling had rejected his application.

The candidate also told us that in the summer of 2006, he had called Elston
to discuss the possibility of being detailed to ODAG. The candidate recalled that during
their conversation Elston said something to the effect of, “I’m sorry to have to ask you
this . . . but . . . the White House is going to want to know what is your party affiliation
and who did you vote for in the last election.” The candidate told Elston that he was a
Republican who voted for President Bush. The candidate was never formally
interviewed for an ODAG position. Elston told us he did not recall asking these
questions, but stated that he might have asked them because he knew that Goodling
would want to know the answers. Elston said he did not think he would have told the
candidate that the White House would want to know his party affiliation, but rather he
may have said that the White House Liaison (Goodling) would want that information.
41

Candidate #8

An attorney with 6 years of experience as an AUSA was detailed to
the ODAG to work on national security issues.
The AUSA told us that Deputy Attorney General McNulty had
invited him to interview for the detailee position in the ODAG. After the
interview, McNulty offered him a detail position, which he accepted.
McNulty told him that Elston would coordinate his transfer from the
USAO to the ODAG.
However, Elston contacted the AUSA and said that even though he
had received an offer from the Deputy Attorney General, he still had to
interview with Goodling.
Prior to his interview with Goodling, the AUSA was asked to
complete a Non-Career PPO form. On the form, he identified himself as a
Republican. The AUSA said he believes Goodling probably also asked
him about his political financial contributions.
After his interview with Goodling, several weeks passed with no
word on the status of his detail. As a result, the AUSA called Elston.
According to Elston and the AUSA, Elston told him that the reason for
the delay was that Goodling was taking a long time to conduct Internet
research on him because his last name was common. Elston told us that
he had to ask Goodling several times to approve the detail. Goodling
eventually approved it, and in late October 2006 the AUSA began
working for the ODAG. McNulty told us that he did not know that
Goodling had held up the AUSA’s arrival for over 6 weeks.
I.

Conclusion

As these examples illustrate, we found that Goodling regularly
considered a candidate’s political or ideological affiliations when deciding
whether to approve details of career attorneys to positions in EOUSA,
OLP, and the ODAG, or whether to extend existing details in these
offices. In these examples, the candidates were qualified for the details
and supported by the leaders of those offices because of their
qualifications and ability. However, Goodling’s review focused on their
political or ideological affiliations and she often rejected candidates based
upon these affiliations, or her perception of these affiliations, some of
which were inaccurate, without regard to professional qualifications.
Senior officials in these offices sometimes objected to Goodling’s
decisions, and argued with her about the quality of these candidates.
Sometimes their appeals were successful, but more often they were not.
Even candidates personally offered positions by the Deputy Attorney

General were required to be interviewed by and receive the approval of
Goodling before they could begin their details.
Goodling’s decisions were particularly damaging to the Department
because they resulted in high-quality candidates being rejected for
important positions. For example, in one of the most troubling instances
an experienced terrorism prosecutor who had received the Attorney
General’s Award for Exceptional Service was rejected by Goodling for a
detail to EOUSA to work on counterterrorism issues because of his wife’s
political affiliations. Instead, EOUSA had to select a much more junior
attorney who it believed was not qualified for the position. This use of
political affiliation prevented an experienced career attorney from
assuming important counterterrorism responsibilities, and instead
resulted in the assignment of the duties to a less qualified candidate.
II.

Richmond and Williams

In addition to Goodling, we examined whether Susan Richmond
and Jan Williams, Goodling’s predecessors as the Department’s White
House Liaisons, considered political or ideological affiliations when
approving details to Department of Justice offices. We did not find any
evidence that Williams did so, and we found evidence (Candidate #2
above) that Williams approved a detailee she knew to be Democrat.
However, we discuss below two cases in which the evidence shows
that Richmond used political affiliations to make decisions on detailee
candidates to the ODAG, and that Williams participated in those
decisions when she worked in the White House Presidential Personnel
Office. 42

During Richmond’s initial interview for this investigation, she stated that
ODAG detail candidates’ political affiliations were not relevant to her decisions because
“I didn’t believe that for career officials that that really mattered . . . . for them to be a
member of a particular political party.” After this interview, we found the evidence set
forth in this section that Richmond did in fact use political affiliation to screen two
ODAG detailee candidates.
42

We therefore re-interviewed Richmond. In her second interview, Richmond
confirmed that she used political affiliation to screen some ODAG detail candidates.
However, Richmond said that her prior testimony was accurate, and that when she
stated that party affiliation was not a requirement for a detail, she was referring to
detail positions that were not inherently political. Richmond said she drew a distinction
between career attorneys detailed into non-political positions, and career attorneys
detailed into positions that could be filled by political appointees whose portfolios would
include significant policy issues. For such detailees, or detailee applicants, Richmond
said she believed it was appropriate to consider the applicant’s political party affiliation.

Candidate #9

In 2004, a career Department attorney was approached by Stuart
Levey, then the Principle Associate Deputy Attorney General (PADAG),
about a temporary detail to the ODAG to work on immigration issues.
The attorney was working in the Office of Immigration Litigation (OIL) in
the Civil Division. Levey had previously worked with the attorney and
had been impressed with his abilities.
Deputy Attorney General James Comey and others in the ODAG
interviewed the attorney regarding the detail. After the interviews, the
ODAG offered the attorney a 3-month detail, and he accepted.
On March 24, 2004, an administrative employee in the ODAG sent
an e-mail to Department White House Liaison Richmond stating that
Comey wanted to have the attorney detailed to the ODAG for 3 months.
This e-mail resulted in a series of telephone calls and e-mails within the
OAG and between the OAG and ODAG. The e-mails reflect Richmond’s
annoyance that the detail had not been approved by the OAG.
Richmond asserted in the e-mails that the immigration portfolio
that the detailee was to assume was supposed to be assigned to a
Schedule C political appointee. Richmond told ODAG Chief of Staff
Chuck Rosenberg that the OAG would not approve the attorney’s detail.
On March 31, 2004, Comey sent an e-mail to Richmond to inform
her that he had authorized the attorney’s detail as a temporary measure,
even though he knew that Richmond was trying to find a political
appointee for the immigration portfolio. However, Richmond was still
upset about the decision to have the attorney detailed to ODAG, and she
complained by e-mail to both Williams and David Higbee (at that time on
detail from the Department) in the White House Presidential Personnel
Office. 43 In her reply to Comey, Richmond noted that the OAG had

43 The tension between OAG and ODAG on this and other issues later led the
OAG, through Goodling, to instruct the Justice Management Division (JMD) to change
the Department’s regulations by reserving to OAG personnel authority over employees
in the ODAG and the Associate Attorney General’s offices. Goodling conveyed that
direction to JMD in January 2006, and the amendment was incorporated into an
existing set of draft regulations that addressed technical issues in unrelated
regulations. The change added subsections to 28 C.F.R. §§ 0.15(h) (for the ODAG) and
0.19(d) (for the Associate Attorney General), which reserved to the Attorney General the
authority to take final action in matters pertaining to the appointment, employment,
pay, separation, and general administration of Schedule C (political appointment)
positions and of positions that meet “the same criteria as a Schedule C position.” The
changes were published on February 7, 2006.

(Cont’d.)

identified a candidate for a political position in the ODAG to handle
immigration matters, and said that the candidate could be brought on
quickly. Comey responded that he was hiring the detailee even if the
detail would last only a few weeks so that someone could handle
immigration matters until a permanent candidate was identified.
On April 2, 2004, Richmond forwarded Comey’s e-mail to Williams
at the White House, who in turn forwarded it to other White House
Presidential Personnel Office staff. In Williams’s e-mail, she commented,
“This is the e-mail I mentioned to you in our meeting. It was sent to
Susan after Comey detailed another career democrat into a position that
was designated [Schedule C].”
The career attorney began his detail to the ODAG in April 2004.
Beginning in June 2004, Richmond sent ODAG Chief of Staff Rosenberg
and PADAG Levey numerous e-mails stating that the detailee’s 3-month
detail was due to expire, that she had several replacement candidates,
and that the ODAG should interview and select one of them. In one email, Richmond summarized three candidates’ qualifications, and for
each noted “loyalty” as an attribute. Richmond told us that term referred
to adherence to the President’s policies.
On July 1, 2004, Levey sent an e-mail to the detailee stating that
he was doing a great job and asking if he wanted to extend his detail.
The detailee said that he did.
On July 6, 2004, Richmond sent an e-mail to David Ayres, Chief of
Staff to the Attorney General, in which she asked to meet with him about
a conversation Ayres had with ODAG Chief of Staff Rosenberg regarding
Prior to the publication of the amendments, JMD had expressed concern to
Goodling that the amendment would place a significant administrative burden on the
Attorney General, and asked whether the Attorney General wanted to delegate the
authority “within his immediate staff.” A week later Goodling responded that the
delegation should be from the Attorney General to his Chief of Staff and the White
House Liaison. (Goodling was not the White House Liaison at the time.) Accordingly,
an internal order was drafted effectuating the delegation to the OAG Chief of Staff and
the White House Liaison. The order was signed on March 1, 2006. Attorney General
Gonzales’s signature is on the order, but Sampson testified that he approved the use of
the autopen for that order. Gonzales stated at his interview that he had “no present
recollection of any of this,” and that he did not recall discussing with Sampson or with
Goodling the reservation of authority or the delegation of it to the Chief of Staff and the
White House Liaison.
On July 25, 2007, after congressional concerns focused on the conduct of
Goodling and others, Gonzales rescinded the amendments that reserved personnel
authority to the OAG, and revoked the internal order delegating such authority to the
OAG Chief of Staff and White House Liaison.

the detailee. According to the e-mail, Rosenberg had told Richmond that
Ayers had approved the detail extension. Richmond noted in the e-mail
that the ODAG had selected the detailee “instead of one of the two R.
candidates that we had asked them to consider.” Ayres responded that
he had in fact approved the detail extension based on Levey’s “personal
assurance” about the detailee, but Ayres added that he had told Levey
the extension needed to be discussed with Richmond. Richmond replied
that “[the detailee] is the Dem. that the WH went berserk over (as did I)
when they found out the DAG had detailed him to ODAG w/out
approval. . . . The political SES in CIV . . . . [s]ays he has some . . .
people in the same branch who are R’s and would be better.”
On July 9, Levey sent an e-mail to Comey and Rosenberg regarding
the detailee, stating:
I called Jan Williams to ask her to reconsider the WH
decision that [the detailee] had to go. I told her that I
thought he was doing a great job, that you were also very
happy with him, that I knew he would be loyal to the ‘team’
on the issues he works on, that he just briefed the AG for an
hour and did a great job, and that someone ‘reliable’ could
oversee him. I also probed whether there is something
negative about him that I did not know. Turns our there is:
he is a registered Democrat and that Jan thinks that
everyone in the leadership offices should have some
demonstrated loyalty to the President. She all but said that
he should pack his boxes and get out of Dodge by sunset.
On July 16, 2004, the ODAG informed Richmond that it had
selected another OIL career attorney to replace the detailee. The
replacement was one of the three candidates who previously had been
interviewed and approved by Richmond. The replacement was not given
a political appointment but was instead detailed to the ODAG as a career
Schedule A attorney.
On July 19, the first detailee was informed that his detail would
not be extended. According to the detailee, when he asked why he had to
leave, Rosenberg told him that the OAG researches candidates for ODAG
positions and that if it found that the candidate was a Democrat, the
candidate was not viewed as part of the team and could not be hired.
On November 8, 2004, Richmond sent an e-mail to Williams
stating that the attorney who had replaced the first detailee wanted to
end his detail. On November 15, Rosenberg sent an e-mail to Comey
suggesting that they bring back the first detailee to the ODAG, and
Comey agreed. On December 8, 2004, Rosenberg sent an e-mail to

Richmond suggesting that the first detailee be asked to return to replace
the second detailee. Rosenberg told Richmond that the first detailee
“performed extraordinarily well” and that he was “smart, aggressive, and
reliable.” Richmond responded by stating that all leadership office hiring
or details were on hold until January or February of 2005, which was
after the transition from Attorney General Ashcroft to Attorney General
Gonzales. As a result, the first detailee did not return to the ODAG.
B.

Candidate #10

On March 26, 2004, Rosenberg sent an e-mail to Comey and Levey
identifying a detail candidate for a Counsel to the Deputy Attorney
General position, with a portfolio relating to the Criminal Division. The
candidate was then working for the Homeland Security Counsel (HSC) in
the White House, on a detail from her attorney position in the Criminal
Division. 44 Levey responded that he thought the detailee candidate was
very good. Comey noted that the candidate’s supervisor in the HSC
“raved about her,” and agreed that she should be interviewed. The
candidate was interviewed in the ODAG on May 4, 2004.
Later that day, Rosenberg sent an e-mail to Richmond asking her
whether she and the White House would approve the candidate’s detail
to the ODAG. Richmond forwarded Rosenberg’s e-mail to Jan Williams
in the White House, asking Williams if she could find out who the
candidate was and if she was a “viable option.” Less than a minute later
Williams replied, “She is a D.”
After receiving this news from Williams, Richmond forwarded
Rosenberg’s e-mail regarding the candidate to OAG Deputy Chief of Staff
David Israelite with the comment, “Here we go again. She’s a D.”
Richmond also sent an e-mail to Williams saying that she would talk to
Rosenberg the next day.
On May 10, 2004, Rosenberg sent an e-mail to Comey and Levey
stating that Richmond said she had asked about the detailee candidate
and the answer was a “firm no.”
This detailee candidate had been a trial attorney in the Criminal Division and
had been detailed to the White House HSC from 2002 to 2004. She had been invited to
apply for the HSC detail and interviewed with several HSC staff. At the end of the HSC
interview process, the candidate was told that because she was a Democrat there was a
problem finalizing her detail. Eventually, the candidate spoke with someone at the
White House Presidential Personnel Office regarding her party affiliation and views on
the issues that she would be working on at the HSC. She was thereafter offered the
detail position. According to the candidate, during her 2 years at the HSC, she received
excellent performance reviews.
44

The detailee candidate told us that when Rosenberg informed her
that she would not be selected for the detail he said that the problem was
in the White House and not in the Department. However, Rosenberg told
us he did not recall telling her that the problem regarding her detail
originated in the White House.
III.

Recent Changes in the Detailee Selection Process

As noted above, on July 20, 2007, Attorney General Gonzales
announced a series of reforms to address allegations regarding the
politicization of hiring within the Department of Justice. One of those
reforms involved career attorney details to the Office of the Deputy
Attorney General:
[then Acting Deputy Attorney General Craig Morford] and I
agree that the Department must continue to recruit the best
and brightest lawyers. Therefore, I am in the process of
providing the Deputy Attorney General with the authority to
detail and hire attorneys that he believes will best fill
positions within his division.
With this change in procedure, it appears that the Deputy Attorney
General now has the authority to detail attorneys to the ODAG without
OAG approval.
IV.

Analysis

In this section of the report, we analyze whether Goodling’s or
Richmond’s use of political or ideological affiliations to decide whether to
approve details for career attorneys violated Department policy or federal
law.
As discussed in Chapter Two of this report, temporary detail
assignments are among the “personnel action[s]” that are included within
the scope of the prohibited personnel practices enumerated in 5 U.S.C.
2302(b). “‘Personnel action’ means . . . . a detail, transfer, or
reassignment . . . ” 5 U.S.C. 2302(a)(2)(A)(iv) (emphasis added).
Accordingly, it is a prohibited personnel practice and a violation of
federal law to discriminate for or against any candidate for a detail
position on the basis of political affiliation, as discussed in Chapter Two
(Section V) above.
However, the Civil Service Reform Act makes clear that positions
which are of a “confidential, policy-determining, policy-making, or policyadvocating character . . . .” are not covered by the prohibited personnel

practices set forth in Section 2302(b). 2302(a)(2)(B)(i). Some of the
positions occupied or sought by the detailee candidates discussed above
could have been filled by political appointees, and some arguably
involved sensitive policy-making roles in the Department. Goodling told
Congress, and Richmond told us, that the OAG should be able to
consider political or ideological affiliations with respect to these
positions, regardless of whether the position was filled by a career
detailee or a permanent political selection. Thus, according to their
argument, the prohibited personnel practices would not apply to a detail
position that is sufficiently policy oriented, and political affiliations could
be used to screen candidates for the detail without violating the
prohibitions contained in 2302(b). 45
We believe that some of the career attorneys who were or who
wanted to be temporarily detailed to the ODAG or OLP may have filled
“confidential, policy-determining, policy-making, or policy-advocating”
positions, and therefore it may have been permissible to consider the
political affiliations of these detailee candidates. However, not all of the
positions at issue fit that definition. Therefore the analysis depends on
the specific duties of the position.
We found no clear guidance on this issue in either federal law or
Department policy. Moreover, the determination of whether a particular
ODAG or OLP detail is sufficiently policy-related to be exempt from
federal law and Department policy is inherently subjective and depends
on an assessment of the circumstances of each position. Therefore, we
do not reach a conclusion as to whether Goodling or Richmond violated

Goodling’s and Richmond’s argument, however, is problematic. As noted
above, the CSRA exempts from its scope those employees whose positions are of a
“confidential, policy-determining, policy-making, or policy-advocating character . . . .”
2302(a)(2)(B)(i). This language arguably would allow the Department to use political
affiliation to screen career candidates for details to positions meeting the criteria of
2302(a)(2)(B)(i). However, courts that have interpreted the scope of 2302(a)(2)(B)(i) have
stated that it was intended to cover only political appointees. See, e.g., O’Brien v. Ofc. of
Indep. Counsel, 74 M.S.P.R. 192, 207 (1997) (suggesting that “the terms of the
exception found at 5 U.S.C. § 2302(a)(2)(B)(i) are a shorthand way of describing ‘political
appointee’ positions”); Special Counsel v. Peace Corps, 31 M.S.P.R. 225, 231 (1986)
(“[A]n excessive preoccupation with the meaning of each term in isolation distorts the
purpose of the exception found at 5 U.S.C. § 2302(a)(2)(B)(i). These terms are . . . only a
shorthand way of describing positions to be filled by so-called ‘political appointees.’”).
Career attorneys who are temporarily detailed into Department offices are not “political
appointees.” They remain Schedule A career attorneys, and Schedule A positions are
“positions which are not of a confidential or policy-determining character,” 5 C.F.R. §
213.3101; 5 C.F.R. § 213.3102(d). Thus, we believe there is uncertainty whether,
notwithstanding the 2302(a)(2)(B)(i) exemption from the CSRA, career detailees can be
selected on the basis of political affiliation, because they do not fill political positions.
45

federal law or Department policy with regard to many of the positions at
issue.
However, we believe that none of the EOUSA positions described
above (Candidates 1, 3, 4, and 6) can be considered “confidential, policydetermining, policy-making, or policy-advocating” positions, and
therefore it was improper for Goodling to use political or ideological
affiliations in selecting or rejecting detailees to these positions.
Several senior EOUSA staff told us that EOUSA does not make
policy. For example, former EOUSA Acting Director Steven Parent stated
that EOUSA is a largely administrative office with the exception of its
responsibility for screening candidates for U.S. Attorney positions.
Similarly, former EOUSA Director Battle stated that EOUSA was
essentially an administrative office. In addition, at the time of the events
discussed in this report, only 2 EOUSA employees out of approximately
530 were political appointees (the Director and one Deputy Director).
Currently, EOUSA has one political appointee, and a second political
appointee is on a temporary detail to Iraq. In contrast, both ODAG and
OLP are staffed with significant numbers of political appointees.
For these reasons, we believe that Goodling violated federal law
and Department policy, and committed misconduct, when she
discriminated against EOUSA detailee candidates based on political or
ideological affiliations.
We also considered whether use of political affiliations to screen
career attorney candidates for details to the other Department offices
violated Department policy. As mentioned above, the Department’s
employment discrimination policy, 28 C.F.R. § 42.1(a), prohibits political
discrimination “in employment within the Department.” That policy does
not specifically refer to details.
Moreover, the Department’s recitation of whether its
antidiscrimination employment policy applies to details has been
inconsistent. Recent detail announcements posted on the Office of
Attorney Recruitment and Management (OARM) website or distributed to
USAOs sometimes contain antidiscrimination employment provisions
and sometimes do not. For example, in 2007 OARM posted an
announcement for a detail to OLP. The announcement contained
language stating that there will be no discrimination based on, among
other things, politics. A 2007 OARM posted announcement for a detail to
the Professional Responsibility Advisory Office contained identical
language. In contrast, a 2007 EOUSA memorandum sent to all USAOs
announcing a detail to EOUSA did not contain any information about the
Department’s antidiscrimination employment policy.

We believe that the Department’s employment discrimination
policy, 28 C.F.R. § 42.1(a), prohibits use of political affiliations to screen
candidates for temporary details to positions that are not of a
“confidential, policy-determining, policy-making, or policy-advocating
character . . . .”, such as details to EOUSA. However, the Department
has no clear rules regarding the use of political affiliations to screen
candidates for temporary details to these non-policy-making positions.
Finally, regardless of the coverage of the civil service laws or the
Department’s anti-discrimination policy, we were also troubled by cases
in which details of career attorneys who were performing in an
outstanding fashion were terminated because of their political affiliation.
Both Richmond and Goodling objected to extending the details of career
attorneys in the ODAG even though the Deputy Attorney General and his
staff supported the extensions. In both cases, the Deputy Attorney
General and his staff rated the attorneys’ performance as outstanding.
In both cases, the Deputy Attorney General asserted that the attorneys
fully supported the Administration’s policies that the attorneys were
assigned to promote. Yet, in both cases, Richmond and Goodling sought
to terminate or prevent the details solely because the attorneys were
Democrats. 46
We recommend that the Department clarify its policies on when
political considerations can and cannot be considered when assessing
career candidates for details to various Department offices. We believe
that the Department would benefit from having clear rules about the
criteria that may be used to assess career attorney candidates for various
types of details.

As noted above, in response to the allegations of politicized hiring in the
Department, former Attorney General Gonzales gave the Deputy Attorney General
authority to select his or her own staff, including detailees. We believe that this change
can help prevent the recurrence of such incidents.
46

CHAPTER SIX
EVIDENCE AND ANALYSIS: IMMIGRATION JUDGE AND
BOARD OF IMMIGRATION APPEALS MEMBER HIRING
DECISIONS
Goodling also admitted in her testimony to Congress that she “took
political considerations into account” in soliciting candidates and
reviewing candidate résumés for career positions as Department
immigration judges (IJs) and Board of Immigration Appeals (BIA)
members. Our investigation also revealed that Kyle Sampson and Jan
Williams improperly took political and ideological affiliations into account
when they were involved in hiring immigration judges.
In the sections below, we first provide background on IJs and BIA
members. We discuss the process by which IJs were hired prior to
spring 2004 and the changes Sampson initiated when he became Chief of
Staff; Sampson’s, Williams’s and Goodling’s sources for obtaining
immigration judge candidates and the political affiliation of those
candidates; and the problems for the Department’s Executive Office for
Immigration Review created by the changes Sampson made to the hiring
process for IJs. We then provide our findings and conclusions regarding
whether Sampson, Williams, and Goodling violated federal law and
Department policy, and committed misconduct, by considering political
or ideological affiliations in selecting immigration judges. Finally, we
discuss whether Williams provided inaccurate information to us in this
investigation related to her role in the hiring of immigration judges, and
whether Goodling provided inaccurate information to Department
attorneys defending the United States in civil litigation regarding
immigration judge hiring.
I.

Immigration Judges and Board of Immigration Appeals
Members
A.

The Executive Office for Immigration Review

The Department’s Executive Office for Immigration Review (EOIR)
is responsible for conducting immigration court proceedings and
appellate review of such proceedings. EOIR is headed by a Director who
reports directly to the Deputy Attorney General. The EOIR Director,
working with a Deputy Director, has general supervision over the Office
of the Chief Immigration Judge (OCIJ), which is responsible for managing
immigration courts throughout the nation. In addition, the OCIJ

supervises the BIA, which conducts appellate review of immigration court
decisions. 47 At the time of the events discussed in this report, the
Director of EOIR was Kevin Rooney and the Deputy Director was Kevin
Ohlson. The Director and Deputy Director are career Senior Executive
Service (SES) positions. Both Rooney and Ohlson are career Department
attorneys.
The OCIJ establishes and implements operating policies for the
immigration courts. It is led by a Chief Immigration Judge (CIJ), who is
assisted by 11 Assistant CIJs (ACIJs). The CIJ is a career SES position.
The ACIJs are all career, Schedule A positions. By definition, Schedule A
positions “are not of a confidential or policy-determining character,”
which distinguishes them from Schedule C appointments (commonly
referred to as “political” appointments). 48
B.

Immigration Judges

An immigration judge is “an attorney whom the Attorney General
appoints as an administrative judge within the Executive Office for
Immigration Review.” 8 U.S.C. § 1101(b)(4). The Office of Personnel
Management has categorized career attorney positions as Schedule A. 5
C.F.R. § 213.3102. All IJs are career Schedule A appointees.
Consequently, the civil service laws set forth at 5 U.S.C. §§ 2301 and
2302 apply to the appointment of IJs.
IJs are the attorneys within the Department who are responsible
for conducting quasi-judicial proceedings relating to exclusion,
deportation, removal, and asylum cases. More than 200 IJs preside over
immigration courts in all 50 states, the District of Columbia, and Puerto
Rico. IJs are required to exercise independent judgment, and their
decisions are final unless they are formally appealed to the BIA.
C.

The Board of Immigration Appeals

The BIA is composed of 15 Board Members, including the
Chairman and Vice Chairman. Board Members are “attorneys appointed
by the Attorney General.” 49 The BIA Chair is a career SES position.
Under the regulations, the Attorney General “may designate one or two
Vice Chairmen to assist the Chairman.” 50 Both Vice Chair positions are
career positions, not political appointments. The remainder of the BIA
47

8 C.F.R. § 1003.0(a) (2007).

5 C.F.R. § 213.3101.

8 C.F.R. § 1003.1(a)(2).

Id.

member positions are career Schedule A positions. Thus, the civil
service laws set forth at 5 U.S.C. §§ 2301 and 2302, also apply to the
appointment of BIA members.
The BIA has jurisdiction to hear appeals from certain decisions
rendered by IJs, including decisions in exclusion, deportation, removal,
and asylum cases. The decisions of the BIA are binding on IJs unless
modified or overruled by the Attorney General. Like IJs, the BIA is
directed to exercise its independent judgment in hearing appeals.
Certain decisions by the BIA may be appealed to the United States
Courts of Appeal.
D.

Department of Justice Policy

As noted above, Department policy and civil service laws prohibit
discrimination in hiring for career positions. In advertising IJ positions,
the Department specifically stated that “there will be no discrimination
because of color, race, religion, national origin, politics, marital status,
disability, age, sex, [or] sexual orientation . . . (emphasis added).” 51
II.

Process for Hiring Immigration Judges
A.

The Process Prior to Spring 2004

The Attorney General has the authority to appoint IJs. 52 See 8
U.S.C. § 1101(b)(4) and 8 C.F.R. § 1.1. However, that authority is
normally delegated by the Attorney General to the Deputy Attorney
General or to the Associate Attorney General. 53 Since at least the 1980s,
the Deputy Attorney General has routinely re-delegated to the
Department’s Office of Attorney Recruitment and Management the
authority to take final action in matters pertaining to employment for
attorneys in pay grades GS-15 and below. The delegations included IJs,
who are attorneys compensated at the GS-15 level or below. 54

See, e.g., www.usdoj.gov/oarm/attvacancies.html.

52 This is different from other types of career attorney positions in the
Department, such as AUSAs, where the Attorney General does not have statutory
authority to directly appoint AUSAs and other career attorneys.
53

See 28 C.F.R. §§ 0.15 and 0.19.

54 In 1996, the IJ pay rates were removed from the General Schedule and now
generally exceed the GS-15 level. In practice, final action on IJ hiring (“signing off” on
candidates recommended by the EOIR Director) continued to be exercised by ODAG and
OARM. In 2006, the regulations were amended to comport with actual practice by
authorizing the ODAG to re-delegate authority concerning attorneys with pay grades
(Cont’d.)

Prior to spring 2004 the process for hiring IJs was handled
primarily by EOIR. When a position became available, whether through
retirement or the creation of new positions, EOIR posted a vacancy
announcement identifying the location of the vacancy, the minimum
requirements for applicants, and a statement that the Department is an
Equal Opportunity Employer that does not discriminate on the basis of,
among other things, “politics.” The minimum requirements were that a
candidate must be a U.S. citizen, have 7 years of relevant post-bar
experience, and have 1 year of experience equivalent to the GS-15 level of
federal service.
In addition, the announcements stated that applicants must
possess three or more of the following: (1) knowledge of immigration
laws and procedures; (2) substantial litigation experience, preferably in a
high-volume context; (3) experience handling complex legal issues; (4)
experience conducting administrative hearings; and (5) knowledge of
judicial practices and procedures.
Within EOIR, the Office of the Chief Immigration Judge had
responsibility for the hiring process. Assistant Chief Immigration Judges
reviewed the applications and voted on which candidates to interview,
and the Chief Immigration Judge reviewed their recommendations and
determined who would be interviewed. The interviews were conducted by
3-member panels, including the CIJ, and the CIJ would then choose
which candidate to recommend to the EOIR Director. The Director had
to approve the recommendation. The evidence we reviewed suggested
that prior to Sampson changing the process in 2003, every
recommendation was accepted by the Director. EOIR then prepared and
sent paperwork to the ODAG and the OARM for “sign-off” on the new
hire. The evidence in our investigation also showed that during this
same time period the Director’s recommendation was never rejected.
Prior to spring 2004, we found only a few examples of IJs being
appointed without having applied in response to vacancy
announcements, and sometimes without having been interviewed or
processed by EOIR. Such hires were sometimes referred to as having
been made pursuant to the Attorney General’s “direct appointment”
authority, although we found no evidence that any Attorney General (as
opposed to the Attorney General’s staff) was personally involved in
selecting the candidates. The evidence indicates that very few “direct

over GS-15, thus covering all IJs. The hiring of all the IJs whose appointments were
approved prior to the amendment was subsequently ratified.

appointments” were made prior to spring 2004. Rather, the vast majority
of IJs were hired through the EOIR process detailed above. 55
No BIA members were hired between October 2001 and April 2007.
Consequently, there was no established mechanism for hiring BIA
members during the time that Sampson, Williams, and Goodling worked
in the OAG. The four most recent BIA members appointed before that
time period were “direct” hires, but we found no evidence that the
candidates were selected based on political considerations.
B.

The Office of the Attorney General Considers Changes to
the Process

When Sampson came to the OAG as Counselor to the Attorney
General in 2003, he implemented significant changes to the process of
hiring IJs.
An internal EOIR e-mail from an ACIJ to the CIJ, dated June 30,
2003, stated that Laura Baxter, a Senior Counsel to the Deputy Attorney
General, had recently informed EOIR that “the Dept. is going to take a
greater role in IJ hiring.” The e-mail noted further that Baxter
“emphasized that she wanted us to know that this is coming from the AG
[John Ashcroft].” Both EOIR Director Rooney and Deputy Director
Ohlson told us that they were not aware of such an initiative at the time.
In October 2003, an exchange of e-mails between Baxter and
Sampson, who had just left the White House Counsel’s Office to become
a Counselor to Attorney General Ashcroft, showed that the White House
and the OAG had recently taken an interest in IJ hiring. For example, an
October 8, 2003, e-mail from Sampson to Baxter stated that “the White
House may recommend” two candidates for IJ positions, and that
Sampson wanted to send “folks in the White House” a document
detailing a proposed new process for hiring IJs. Attached to the e-mail
was a draft document, entitled “Appointment of Immigration Judges.”
The document stated that, “Many lawyers seeking positions within the
Administration, including judgeships, become known to the White House
offices of Political Affairs, Presidential Personnel, and Counsel to the
President.” The document stated that some lawyers might qualify to be
IJs, and that “coordination” was needed to ensure that such lawyers
were “informed of the opportunity” to become IJs. The document
included a “Proposed Process,” which was substantively identical to the

55 We did not find evidence that any “direct appointment” hires prior to 2004
were based on improper political or ideological affiliations.

process that became established under Sampson, Williams, and
Goodling, and which is quoted below:
A. EOIR informs DAG (Baxter) of current or upcoming IJ
vacancy.
B. DAG (Baxter) informs OAG (Sampson) of the vacancy.
C. OAG (Sampson) informs WH OPA . . ., WH PPO . . ., and
WHCO . . . of the vacancy and solicits names of possible
applicants.
D. OAG (Sampson) transmits application package to
possible applicants; DAG (Baxter) transmits a list of possible
applicants recommended by WH to EOIR.
E. EOIR recommends candidates for AG appointment.
F. AG appoints.
We found that the proposed process described above essentially
mirrored the process that was implemented in 2004 with the exception
that the ODAG was removed from meaningful involvement in IJ hiring.
Sampson confirmed to us that the “Proposed Process” document
corresponded with “how it [IJ hiring] worked during the period of time
that I was at the Justice Department.”
We also found that a prior draft of the “Proposed Process” included
a provision for EOIR to “vet applications,” but that provision was deleted
from the document attached to Sampson’s e-mail. 56 In a separate e-mail
to Baxter on October 8, 2003, Sampson stated that he wanted to review
the standard “application package” for immigration judge positions
before implementing the new process for hiring IJs.
The first example of a direct appointment in which Sampson
referred an IJ candidate to EOIR involved an attorney who served as the
campaign treasurer for a Republican Senator from New Hampshire. The
campaign treasurer had been nominated to the U.S. Tax Court by
President Bush in 2001, and Sampson was the person at the White
House who was assigned to “shepherd” the candidate through the
nomination process. The nomination was not successful, and the
candidate was appointed to a political position in the DOJ Tax Division.

In our interview of Sampson, we showed him these documents. Sampson
stated that he did not remember the documents, and that reviewing them did not
refresh his recollection. He added that the red-lined version “looks like something I
would have drafted,” but said he did not know who edited it.
56

In October 2003 the candidate approached an official in the OAG
to inquire about IJ positions, and learned that Sampson was in charge of
IJ hiring.
Shortly thereafter, the candidate spoke with Sampson by
telephone. In January 2004, the candidate learned that he would be
interviewed by EOIR for an IJ position. An EOIR official told us that he
learned that the candidate had already been offered a position before he
came to EOIR for his interview. The subsequent recommendation from
EOIR to appoint the candidate as an IJ was sent to Baxter in the ODAG
on February 19, 2004. In an internal Department e-mail dated
March 18, 2004 to the Justice Management Division, Department White
House Liaison Susan Richmond noted that the candidate would soon be
appointed and commented: “could you . . . advise [the] Sen. . . . of this?
This is the issue he’d been pushing with us.” The candidate was
appointed as an IJ on April 4, 2004.
C.

Last Occasion in Which EOIR Played a Role in Selecting
Immigration Judges

In a memorandum to the ODAG dated April 5, 2004, EOIR
requested approval of a plan to create a Headquarters Immigration
Court, where hearings could be conducted by teleconference, and to hire
four IJs to fill the new positions. The memorandum identified four
candidates, each of whom had significant experience in immigration law.
The evidence shows that each of these candidates was identified and
selected by EOIR, with no involvement from the OAG or the White House.
However, in an e-mail to the ODAG dated August 2, 2004, Sampson
criticized this set of appointments as a “hiccup” in the process,
commenting that the OAG should have been “more involved” in selecting
the candidates. In the e-mail, Sampson reminded the ODAG that it was
important to “inform the AG and obtain his informal concurrence” before
processing immigration judge candidates. 57
In early April 2004, EOIR Director Rooney and Deputy Director
Ohlson met with ODAG staff to discuss routine EOIR matters. Sampson
attended the meeting. During the meeting, the fact that EOIR was
preparing to post an announcement for IJ positions, including a position
in Chicago, was discussed. Ohlson told us that Sampson expressed
interest in that position, indicating that he might have a candidate for
the position. Sampson also asked numerous questions about how IJs
were appointed. Ohlson explained to Sampson the standard process
57 Deputy Attorney General Comey approved the hires of these candidates on
April 11, 2004, and they were appointed.

through which EOIR posted announcements, screened résumés,
interviewed candidates, and selected individuals who were then approved
by the ODAG. Ohlson also mentioned the direct appointment avenue for
hiring that had been used occasionally in the past.
Ohlson told us that in discussing the Attorney General’s direct
appointment authority with Sampson, he did not state or suggest to
Sampson that direct hires were exempt from civil service laws governing
career positions. Both Rooney and Ohlson told us they knew that IJs
were career Schedule A positions, that civil service protections covered
such positions, and that political affiliation could not be considered in
hiring IJs. Sampson told us that he did not recall discussing with
Ohlson whether direct appointments were subject to the civil service
laws.
At the end of the meeting, Sampson asked to be informed when the
ODAG authorized EOIR to advertise for the IJ position in Chicago.
Rooney designated Ohlson as the point-of-contact for Sampson for any
questions or issues relating to hiring IJs, and Ohlson retained that
responsibility throughout the period of time covered by this report.
Ohlson said that he kept Rooney apprised of his communications with
the OAG.
In an e-mail to Sampson dated April 19, 2004, Ohlson stated that,
“[p]er our conversation two weeks ago,” the ODAG had authorized EOIR
to advertise for the IJ position in Chicago. 58 The following day, Sampson
sent an e-mail to Ohlson stating that an individual from Chicago would
be applying for the slot. Sampson also asked to be informed when
Ohlson received that candidate’s application. (The hiring of this
candidate is discussed in Section III.B.1. below.)
On August 31, 2004, EOIR recommended to the ODAG six
candidates for IJ positions. The candidates had applied to posted
vacancies and been screened and interviewed by EOIR. Five of the
candidates were appointed as IJs after the ODAG obtained Sampson’s
concurrence on the appointments. 59 This represented the last time EOIR
selected IJ candidates when the process was controlled by Sampson,
Williams, and Goodling. 60 As discussed below, from September 2004
This dates the prior conversation between Sampson and Ohlson to on or
about April 5, 2004, the same date as the EOIR memorandum to the ODAG detailed
above.
58

59 The remaining candidate was not appointed because issues arose in his
background investigation.

Three days after the approval package was sent to the ODAG, Ohlson was
required to send a copy of the entire package to Sampson.
60

until December 2006, when the IJ hiring process was stopped after the
Civil Division expressed concerns about the legality of the process, all
other IJs hired were selected by the OAG (with input from the White
House, Republican Members of Congress, and Republican groups or
individuals).
D.

The Office of Legal Counsel

Sampson testified to Congress, and also told us, that from the time
he first became involved in IJ hiring until December 2006 when the issue
arose in the Gonzalez v. Gonzales litigation, he believed that “direct
appointments” of IJs were not subject to civil service laws and that it was
appropriate to consider “political criteria” in selecting IJs. Sampson said
that his understanding was based on his April 2004 meeting with Rooney
and Ohlson, at which they discussed the fact that the Attorney General
could make direct appointments, combined with advice he said he
received from the Office of Legal Counsel.
As noted above, however, Ohlson said he did not tell Sampson that
direct appointments of IJs were exempt from civil service laws. Rooney
said he did not recall the discussion, but he told us that he knew civil
service laws applied to IJ hiring and that he would have corrected
Sampson if Sampson had suggested that direct appointment hires were
not covered by the civil service laws. 61
Similarly, as discussed below, the OLC attorneys Sampson
identified to us as the potential sources of the OLC advice stated they
have no recollection of providing such advice to Sampson. In addition,
acting OLC AAG Levin and a senior career attorney at OLC said that
OLC’s normal practice would be to memorialize providing such advice.
Neither OLC nor we could find any record of anyone in OLC ever
providing such advice to Sampson.
Sampson told us that he received the OLC advice either from AAG
Jack Goldsmith or Acting AAG Dan Levin when they headed OLC.
Goldsmith served as AAG of OLC from October 3, 2003, until July 17,
2004; Levin headed OLC from July 2004 until February 2005.
As discussed in detail in Section V.F. below, plaintiff Guadalupe
Gonzalez filed a lawsuit against the Department alleging that she had
been discriminated against based on her gender and national origin
when she was not selected for an IJ position in El Paso, Texas.
When we asked Rooney about Sampson’s claim that he did not have to follow
civil service laws for Attorney General direct appointments, Rooney responded: “I can’t
believe he would say that.”
61

The Civil Division attorneys handling the Gonzalez case
interviewed Sampson on December 11, 2006. Sampson explained to
them how the direct appointment mechanism for hiring IJs was working,
and told them that his sources for candidates were the White House and
Members of Congress. He acknowledged to the Civil Division attorneys
that the process typically resulted in the selection of Republicans.
In an e-mail from OAG Deputy Chief of Staff Courtney Elwood to
Sampson dated December 26, 2006, Elwood attached a request from the
Civil Division that IJ hiring be stopped until the Civil Division evaluated
whether the “current process used in the selection of immigration judges”
violated “Title VII or any other applicable law.” Sampson responded in
an e-mail later that day: “Query: Are any political appts subject to
disparate impact claims? I think not – if I’m right, how can the AG’s
direct appt for IJs be?”
On January 5, 2007, Elwood forwarded to Sampson another e-mail
from the Civil Division advising that IJ hiring should be halted until OLC
and the Civil Division resolved whether “the current procedures for
selecting/appointing . . . IJs comport with merit system principles . . . .”
Sampson responded the same day: “I’m disturbed. . . . I got advice from
OLC on [the AG’s exercise of the direct appointment authority] back in
2003-2004. I’ve never before thought that the AG’s direct appointment
authority was required to comport with merit system principles (as I
understand them).”
In an e-mail dated January 11, 2007, Elwood advised Sampson
that OLC had no record of providing that advice Sampson thought he
had received from OLC, and asked if Sampson could “narrow the time
frame” for when he thought he received the OLC advice. Sampson
responded in an e-mail: “Best guess: Oct 2003 – June 2004.”
The following morning, an OLC official spoke with Levin on the
telephone. In an e-mail dated January 12, 2007, which was forwarded to
Sampson, the official related that Levin “has no recollection whatever of
being asked about IJ or BIA hiring while he was here.” Sampson
responded: “when was Jack [Goldsmith] the AAG? I remember sitting on
the AAG’s couch . . . with John Davis of ODAG (he and I had regular
meetings with the AAG, as OLC was in each of our portfolios) and
discussing it.” After learning the dates of Goldsmith’s tenure at OLC,
Sampson wrote another e-mail: “Discussion would have been with Jack
in his office.”
The same day, an OLC official sent an e-mail to Goldsmith asking
if he recalled “discussing the hiring of Immigration Judges or BIA judges

with Kyle Sampson fro the AG’s office?” Goldsmith replied the same day:
“No recollection whatsoever.”
When we contacted Goldsmith as part of this investigation, he
reiterated that he had no memory of discussing the hiring of IJs with
Sampson. Likewise, Davis told us that he had no recollection of such a
discussion.
Levin was again contacted by the Department in May 2007 to see if
he had any memory of advising Sampson that civil service laws did not
apply to IJ appointments. Again, Levin stated that he had no recollection
of providing such advice to Sampson. When we interviewed Levin, he
reiterated that he had no recollection of discussing IJ hiring with
Sampson. Levin also stressed that the issue whether civil service laws
applied to IJ hiring was beyond his own expertise, saying, “I don’t have a
clue” about the issue. Levin stated that if Sampson had posed such a
question, he would not have offered any informal guidance, but rather
would have consulted one or both of two senior career attorneys at OLC
to get an accurate answer.
Those senior career OLC attorneys confirmed to us that they
believed Levin would have come to them with any question about the
applicability of civil service laws to IJ hiring, and that the issue was
sufficiently arcane so that neither they nor Levin would have offered an
informal opinion on the issue. The OLC attorneys added that both Levin
and his predecessor, Jack Goldsmith, were very careful in giving legal
advice, and that they doubted either would have orally or informally
opined on the applicability of civil service laws to IJ hiring without having
research conducted on the point.
Levin and the senior career OLC attorneys said they did not recall
having been asked to address whether civil service laws applied to IJ
hiring. Furthermore, Levin told us that Sampson was very “political” and
that Levin’s “radar” would have alerted if Sampson had requested such
advice on whether civil service laws applied to hiring for career positions.
We also contacted M. Edward Whelan III, who was Acting AAG at
OLC during the August 2003 through October 3, 2003 time frame,
covering the period from Sampson’s arrival at the Department to the day
Goldsmith became the AAG. Whelan told us that he had no recollection
of advising Sampson that civil service laws did not apply to IJ hiring. He
added that he would not have offered an oral opinion on such a
complicated issue, but would have referred it to a specific senior OLC
attorney (one of the two identified by Levin).

During our investigation, we found a September 3, 2004, e-mail in
which Levin asked these two senior OLC attorneys whether the Attorney
General had delegated to the ODAG “the authority to appoint
immigration judges.” In a follow-up e-mail, Levin also asked whether, if
the authority had been delegated, the Attorney General could still
exercise the authority “in a particular case or generally.” Levin added in
the e-mail: “I assume the delegation does not in any sense divest the AG
of the power so he could continue to exercise it without formally undoing
any delegation.” In response, one of the OLC attorneys noted that the
general delegation in 28 C.F.R. § 0.15 might cover IJs, and observed
further: “And yes, the AG retains his authority even though there’s been
a delegation.”
However, we found no evidence connecting these September 2004
e-mails to any request from or response to Sampson or anyone else from
the OAG. After reviewing the e-mail exchange, neither Levin nor the
career OLC attorneys said they could recall who had raised the issue
with Levin, or the context of the request. But because the subject matter
of Levin’s inquiry addressed the Attorney General’s direct appointment
authority, we believe it is possible that Sampson raised the general issue
of the Attorney General’s direct appointment authority with Levin in
September 2004, and that Levin advised him that the Attorney General
had such authority. The e-mails do not, however, address the separate
issue of whether the civil service laws applied to the Attorney General’s
authority to make direct appointments.
Furthermore, the dates of the e-mails – 11 months after Sampson
crafted his process for hiring IJs, and approximately 6 months after the
OAG had begun selecting IJ candidates – together with the fact that they
do not address whether civil service laws apply to IJ hiring indicate that
they are not related to any advice to Sampson that immigration judges
were political positions. In addition, as noted above, Sampson thought
he received the advice when Goldsmith was still the AAG.
Sampson admitted in his congressional testimony that his
recollection about receiving advice from OLC about IJ hiring was “fuzzy,”
and that he had no recollection of receiving a written opinion or specific
oral advice from OLC. Sampson stated:
I don’t remember OLC’s reaction except I think that I would
remember if they had some concern with it. . . . I don’t
remember what OLC said back to me. I just remember
thinking in my mind, EOIR had said it this way and OLC
doesn’t have any problem with that.

In addition, the October 8, 2003, e-mail from Sampson to Baxter
and the attached “Appointment of Immigration Judges” document
demonstrate that Sampson had already sought to appoint as IJs persons
who were seeking political positions in the administration, before he
could have received the advice he claimed to have received from OLC.
Furthermore, according to the attached document, Sampson saw the
direct appointment authority as a vehicle for placing attorneys who had
“become known to the White House offices of Political Affairs, Presidential
Personnel, and Counsel to the President.” Sampson acknowledged to us
that, from his own experience in working at the White House, he
understood that the White House would recommend attorneys who were
Republicans.
In sum, we found that Sampson equated IJ positions with political
positions, and Sampson said he assumed the Attorney General could
appoint IJs without being bound by the civil service laws governing the
hiring of career Department employees. However, we did not find
evidence to support Sampson’s claim that he received such advice from
OLC.
Nonetheless, as described below, Sampson implemented a hiring
process for IJs that treated the positions as political appointments. As a
result, Sampson and others improperly considered political or ideological
affiliations in selecting IJ candidates.
E.

The Immigration Judge Appointment Process
Implemented by Sampson

Under Sampson’s process, the OAG exercised control over the
selection of IJs. The new process mirrored the “Proposed Process”
detailed in Sampson’s December 8, 2003, e-mail to Baxter, except that
vacancies were to be communicated directly to the OAG rather than
through the ODAG. Compared with the prior system in which EOIR
selected IJs from applications received pursuant to vacancy
announcements, the most significant change was that direct
appointment of candidates recommended by the OAG became the
exclusive avenue for IJ hiring.
Under the new process, EOIR was required to notify Sampson –
rather than posting a vacancy announcement – when an IJ position
became available. Sampson then normally solicited names of candidates
from the White House, Republican Members of Congress, or Department
political appointees. When Sampson accepted such a recommendation,
he forwarded it (sometimes without a résumé) to EOIR for processing. In
some instances, the candidate was offered a position as an IJ even before

the candidate’s name was sent to EOIR. In virtually every instance,
Sampson referred just one candidate for each available position.
EOIR Director Rooney, Deputy Director Ohlson, and others at
EOIR told us that the candidate selected by the OAG was a “presumptive
hire,” and they understood that the individual was to be hired unless he
had “horns” on his head. Ohlson said that “we really [did not] have any
choice in the matter,” when the OAG forwarded its candidate.
According to Rooney, Ohlson, and other EOIR staff, if EOIR did not
identify reasons why the person should not be hired, it transmitted the
paperwork back to the ODAG with a recommendation that the candidate
be appointed. The paperwork was routed through Sampson at the OAG
to secure his approval prior to the ODAG taking action. We found that
the documents showing EOIR’s recommendations and the ODAG’s
approvals had no real significance: the de facto hiring decision was
made by Sampson when he initially referred the candidate to EOIR.
In April 2005, Sampson delegated responsibility within the OAG for
selecting IJ candidates to the Department’s White House Liaison, Jan
Williams. That responsibility passed to Monica Goodling in April 2006
when Goodling replaced Williams as White House Liaison. We found that
both Williams and Goodling employed the same process that Sampson
established: direct appointments remained the exclusive method for
hiring IJs, and the identification of candidates by Williams and Goodling
remained the functional equivalent of a hiring decision. Sampson
continued to have sporadic involvement in IJ selections even after he
assigned primary responsibility for this function to the Department’s
White House Liaison beginning in April 2005.
The evidence indicates that neither Attorney General Ashcroft nor
Attorney General Gonzales was involved in selecting individuals to be
appointed as IJs. Susan Richmond, the White House Liaison from 2003
until early 2005, also was not involved in IJ hiring. 62 In addition, the
evidence indicates that ODAG officials were not involved in selecting
individuals to be IJs.

Richmond told us that she was not involved in the process of selecting and
hiring IJs. An e-mail in March 2005 corroborated Richmond’s statement. In response
to a query concerning an IJ, Richmond responded: “IJ’s [sic] are career appointments .
. . so I don’t handle them.” Sampson also told us that he did not recall Richmond
having any role in IJ selection.
62

III.

Sampson’s Recommendations to EOIR
A.

Sources for Immigration Judge Candidates

As noted above, Sampson told us that he thought IJ positions were
“political” positions and that it was appropriate to consider political
factors in assessing IJ candidates. Sampson did not personally interview
or screen the candidates he referred to EOIR. Sampson solicited or
received candidates for IJ positions from three sources: (1) the White
House Office of Political Affairs, White House Presidential Personnel
Office, and Counsel to the President; (2) Republican Members of
Congress; and (3) colleagues within the Department who were political
appointees. Sampson stated that he did not “put a political screen on
resumes,” but he conceded that the candidates he received from these
sources would already have been screened for political affiliation.
Sampson also said that from his own experience at the White House, he
knew that the IJ candidates “were solicited from . . . White House offices
that were involved in political hiring,” and that consequently the only
candidates under consideration were “[R]epublican lawyers.” Sampson
also noted that “the resumes that they got into [the White House] were
people who were [R]epublican job seekers.” 63
The screening done at the White House, whether at the Office of
Political Affairs or the Presidential Personnel Office, involved
consideration of political affiliations. As discussed above, typically
people who wanted to be considered for political positions within the
Bush administration submitted to the White House a form entitled “PPO
Non-Career Appointment Form.” The form required applicants to identify
their political party affiliation, their voting address for 2000 and 2004,
involvement in the Bush/Cheney campaigns of 2000 and 2004, and a
point of contact to verify their involvement in the campaigns. The form
also stated that each applicant had to submit a “political and personal
resume” before White House clearance could begin.
Scott Jennings, who worked at the White House Office of Political
Affairs from October 2005 until October 2007, confirmed to us that IJ
appointments were “treated like other political appointments.” Jennings
said that while he did not know that immigration judges were career
positions, he assumed that they were political positions because they
were processed through the Attorney General’s direct appointment
authority.
One of the people at the White House Presidential Personnel Office from
whom Sampson received names of IJ candidates was Jan Williams, who later became
the Department’s White House Liaison. In the OAG, Williams continued to seek names
of candidates from her old office at the White House.
63

Consequently, he said, like candidates for political positions,
potential IJ candidates were screened at the White House to establish
their “political qualifications.” The political screening process included
searching databases to determine whether the candidate had made
monetary contributions to political parties.
In addition, the White House contacted private organizations with
Republican affiliations to generate candidates for particular positions.
Jennings told us that “when we were looking for lawyers we might call
[the] Republican [ ] National Lawyers Association . . . or . . . the
Federalist Society would send over people.” When asked if he ever
contacted any group he believed had ties to the Democratic Party for a
candidate for any position, Jennings said he had not.
The evidence also showed that Sampson and the OAG solicited and
received candidates for IJ positions from various Republican Members of
Congress. EOIR Deputy Director Ohlson also recalled that Sampson,
Williams, and Goodling referred candidates who had recommendations
from congressmen, and that “all of [the Members] were Republicans.”
Of the more than 40 IJ candidates forwarded by the OAG to EOIR
after Sampson changed the hiring process, we did not find any examples
of a candidate who had been recommended by a Democratic Member of
Congress. In late 2006, a candidate was recommended by a Democratic
Senator from Nevada. Sampson referred the candidate to Goodling, and
also explained to the Civil Division attorneys handling the Gonzalez
litigation that it was an easy way to do a political favor that could be
called in at a later date. Goodling forwarded the candidate to EOIR,
without comment, after several promptings from Sampson. EOIR did not
act on the candidate because, as discussed above, the concerns raised by
the Civil Division in the Gonzales litigation led to a halt in IJ hiring.
Sampson also recommended colleagues who were political
appointees within the Department, or other persons who held political
appointments in the Bush administration, as IJ candidates to EOIR, and
who therefore had been vetted by the White House as described above.
Sampson testified that he did not discuss with Attorney Generals
Ashcroft or Gonzales his role in identifying IJ candidates. Attorney
General Gonzales told us that he did not have any knowledge of the role
OAG played in identifying IJ candidates and was not involved in their
selection in any way. Our attempts to schedule an interview with former
Attorney General Ashcroft were unsuccessful.

Candidates Provided to EOIR by Sampson

The following are examples of IJ candidates selected as part of
Sampson’s process, which demonstrate the manner in which the OAG’s
control of the direct appointment process worked in practice and the
central role played by the White House in selecting candidates.
1.

Candidate Supported by Karl Rove

As discussed above, Sampson first discussed the direct
appointment authority with EOIR Director Rooney and Deputy Director
Ohlson in the April 2004 meeting, and Sampson had a specific candidate
in mind. This candidate had previously been nominated to be a judge at
the U.S. Tax Court, and Sampson – while at the White House – was
assigned to “shepherd” him through the nomination process, which did
not succeed.
Sampson said he knew that Karl Rove was a “supporter” of this
candidate. 64 On April 20, 2004, Sampson sent an e-mail to Ohlson
stating that the candidate “will be applying for the Chicago [IJ] slot.” In
an e-mail dated May 17, 2004, Sampson advised Ohlson that the
candidate was “submitting an application” and requested that Ohlson
keep Sampson “informed [ ] as his application progresses.” On June 14,
2004, after receiving another inquiry from Sampson, Ohlson sent an email to Sampson stating that although hundreds of persons applied in
response to the Chicago IJ announcement, “[n]eedless to say [the
candidate] made the cut.”
In an e-mail to Sampson dated July 27, 2004, Ohlson advised that
the candidate “was determined to be the top candidate for Chicago.”
When we asked Ohlson about that assessment, he explained that EOIR
was “fully aware of the fact” that the candidate was Sampson’s choice,
and that awareness affected EOIR’s evaluation: “The finger was on the
scale.”
Routine background investigation issues delayed the appointment,
and Sampson checked frequently with Ohlson from September 2004
through May 2005 on the candidate’s status. On May 27, 2005, the
candidate called the White House to complain to Rove that his
appointment to be an IJ had stalled. The complaint was routed through
Mike Davis, Tim Griffin, and Sara Taylor at the White House Office of
Political Affairs. Davis contacted Jan Williams, then the Department’s
64 The candidate also acknowledged during our interview of him that he had
been a friend of Rove’s since his youth.

White House Liaison, and learned that the candidate’s background
investigation had caused the delay. After consulting with Rove, Taylor
informed Williams that “we want to push this t[hr]ough.” Later that
same day, Williams sent an e-mail to Davis stating that “[S]ampson is
going to talk to Karl [Rove] [about the candidate] next week.”
The background investigation process was eventually completed,
and the candidate was appointed as an IJ in October 2005. 65
2.

Candidates Provided by the White House

We found that the majority of candidates provided to EOIR by
Sampson were from the White House Office of Political Affairs. For
example, in September 2004, the Office of Political Affairs provided
Sampson with the résumé of a candidate for an IJ position in El Paso,
Texas. Sampson instructed EOIR to “reach out to” the candidate, and
the candidate was eventually appointed as an IJ.
Also in September 2004, Sampson instructed Ohlson to contact
another candidate whose name (unbeknownst to Ohlson) had been
provided by the White House Office of Political Affairs for an IJ position
in Lancaster, California. The candidate was the Chief of Staff to a
Republican Member of Congress from California. That candidate’s
résumé reflected his involvement in the Bush/Cheney 2000 campaign.
The candidate was formally offered the IJ position, but he did not accept
it.
In an e-mail dated March 17, 2005, Sampson sent to EOIR the
names and résumés of three candidates for two IJ positions in New York.
Sampson had received the three names from the White House Office of
Political Affairs. 66 All three were interviewed by EOIR, and on April 25,
2005, EOIR “recommended” the appointment of two of them. 67 On
May 4, 2005, Tim Griffin at the White House Office of Political Affairs
sent an e-mail to Jan Williams, the Department’s White House Liaison, to
ask about the status of the IJ appointments. That same day the
appointment of both candidates was approved. One candidate
65

of IJs.

This is the only evidence we found of Rove playing a role in the appointment

66 An e-mail from Tim Griffin and Annie Mayol in the White House Office of
Political Affairs indicates that the candidate names came to them from Governor Pataki
of New York. On May 12, 2005, the White House sent a follow-up e-mail to the OAG
inquiring about “[the candidate] in particular – Governor Pataki’s office just called me.”

There is no evidence that EOIR opposed the third candidate; rather, there
were only two vacancies. This was one of only two occasions we found in which
Sampson provided more than one name for a vacancy.
67

subsequently withdrew from consideration, and the other was appointed
as an IJ.
3.

Recommendations from Republican Members of
Congress

We also found that IJ candidates were provided by various
Republican Members of Congress.
On September 16, 2004, Ohlson received a telephone call from
Sampson. According to an e-mail written by Ohlson about the
conversation, Sampson said that:
Attorney General Ashcroft spoke to Senator [Orrin] Hatch
today and agreed to open an immigration court in Salt Lake
City. . . . He said he thinks that Senator Hatch may have a
candidate for the new IJ position in SLC.
The candidate was an attorney who had recently worked for Senator
Hatch on the Senate Judiciary Committee, and who had previously
worked at the Department’s Office of Immigration Litigation in the Civil
Division.
On October 20, 2004, after receiving a telephone call from Senator
Hatch informing him of the IJ position, the candidate sent a letter to
EOIR stating his interest in the position. He was interviewed at EOIR on
November 10, 2004. On December 7, 2004, EOIR sent the paperwork to
the ODAG recommending his appointment and on December 21, 2004,
the ODAG signed its approval. However, on January 10, 2005, the
candidate sent a letter to EOIR withdrawing himself from consideration
citing family reasons. Ohlson relayed the news to Sampson, reminding
him that “This was Senator Hatch’s candidate.” Sampson responded
promptly in an e-mail: “Let me see if Sen. Hatch has any other
candidates he’d like to recommend. I’ll get back to you.”
On January 28, 2005, a staff member for Senator Hatch faxed to
Sampson the résumé of a federal prosecutor in the United States
Attorney’s Office for the District of Utah. In an e-mail dated February 4,
2005, Sampson informed Ohlson that “Sen. Hatch has now
recommended [the candidate] to serve as an immigration judge in the
new Salt Lake City immigration court.” Sampson faxed the candidate’s
résumé to EOIR, and he subsequently was appointed as an IJ.
Another example of a candidate recommended by a Republican
Member of Congress occurred when a Republican Senator from Virginia
sent a letter to Attorney General Gonzales dated August 5, 2005,
recommending a candidate for an IJ position in Arlington, Virginia.

Sampson learned of the letter on August 17, 2005, and immediately sent
an e-mail to Ohlson asking whether the candidate was “in the queue.”
Ohlson responded that EOIR did not have the candidate’s name. EOIR
obtained the candidate’s résumé on August 19, and also received a copy
of the Senator’s letter.
The candidate was a career Department of Justice attorney who
had served in the Criminal Division since 1991. The candidate was
interviewed by EOIR on September 1, 2005. In an e-mail to OAG White
House Liaison Jan Williams on September 21, 2005, Ohlson noted that
“Kyle Sampson told us to appoint [the candidate] to the open position in
Arlington.” The candidate was appointed as an IJ.
4.

Candidates Hired Without EOIR Interviews

We also found several instances in which candidates were offered
positions as IJs even before their names had been sent to EOIR. Two are
of particular note because they later served as sources of additional IJ
candidates when Goodling became the Department’s White House
Liaison. 68 The first candidate was Garry Malphrus, who had worked
with Sampson on the Senate Judiciary Committee where Malphrus
served as a staff member to a Republican Senator from South Carolina.
He was working at the White House as an Associate Director of the
Domestic Policy Council, and his résumé contains numerous references
noting his political party affiliation. 69
Malphrus contacted Sampson in November 2004, expressed
interest in an IJ position, and asked Sampson if he could speak with
someone to learn what IJs do. In an e-mail to Ohlson on November 18,
2004, Sampson forwarded the request: “Garry Malphrus works on
immigration policy at the White House. He is interested in speaking with
someone about an IJ appointment – he’s primarily in info gathering
mode.”
Ohlson said that Malphrus came to his office and they spoke for
approximately 45 minutes. Ohlson said that it was not an interview;
rather, he provided answers to Malphrus’s questions.

68 In this report, we generally did not name individual IJs. However, we named
three IJs who played a role in recommending IJ candidates to Goodling, which we
discuss in Section V.D. below.

In addition to his position in the Bush White House, Malphrus’s résumé
included: “Legal Team, Republican National Committee 72-Hour Task Force, 2004”;
“Bush-Cheney Florida Recount Team, Miami Legal Group, 2000”; and “Federalist
Society.”
69

In an e-mail to the Chief Immigration Judge dated December 6,
2004, Ohlson stated:
This morning I spoke to Kyle Sampson in the AG’s office.
They would like us to “recommend” the appointment of
Garry Malphrus to be an IJ in NYC. As you may recall,
Garry (he has two “Rs” in his first name) worked on the
Senate Judiciary Committee and now serves in the White
House . . . . As you will also recall, pending this formal
“request” from the AG’s office . . . you [have] a “greenlight” to
hire him in time to attend the February judicial training.
Malphrus did not submit an application to become an IJ and was
never formally interviewed by EOIR. On December 21, 2004, EOIR
transmitted to the ODAG its “recommendation” that Malphrus be
appointed an IJ. Malphrus was appointed in March 2005.
Another person appointed to be an IJ who neither submitted an
application nor was interviewed by EOIR was Mark Metcalf. Metcalf had
been appointed to a political position in the Department’s Civil Rights
Division in April 2002. His White House PPO personnel form noted that
he had worked on the Bush/Cheney 2000 campaign and that his party
affiliation was Republican. After a short time, Metcalf was transferred
from the Civil Rights Division to the Criminal Division for a few months,
and then spent 5 months at the Department of Defense. In January
2005, he returned to the Department as Counsel to the Civil Rights
Division AAG, reporting first to AAG Alex Acosta and then to Acting AAG
Bradley Schlozman.
Metcalf’s résumé includes a variety of Republican party affiliations.
In an e-mail to Sampson dated August 29, 2005, with the subject
line reading “mark metcalf,” Department White House Liaison Williams
wrote: “immigration judge?” Sampson responded the same day: “ok.” 70
Shortly thereafter, Williams told Metcalf “we’d like you to be an
immigration judge,” and that there was a position available in Orlando,
Metcalf told us that Williams had met him in connection with his interest in a
political position within the Department. Metcalf stated that he had not previously
been interested in an IJ position, although we found evidence contradicting this claim.
Susan Richmond, the predecessor to Williams as the Department White House Liaison,
told us she recalled that Metcalf approached her to inquire about an IJ position.
Documents also show that Metcalf requested assistance from Richmond in May and
August of 2004, seeking a new position, although the position is not identified.
Sampson also stated that Metcalf was considered for an IJ position because Metcalf had
specifically asked for such a position.
70

Florida if he was interested. Ohlson sent an e-mail to Williams on
September 23, 2005, stating:
The Chief Immigration Judge informs me that a gentleman
by the name of Mark Metcalf called the Immigration Court in
Orlando this morning. Mr. Metcalf told a judge there that he
had been offered an IJ position in Orlando, that he needed to
decide by December 1st whether he wanted to take the job,
and that he wanted the judge to give him a tour of the court.
Neither the judge in Orlando nor the Chief Judge nor I had
ever heard of this person.
Ohlson added that he assumed that Metcalf was “being considered by
you for a direct appointment.”
We determined that even though Metcalf was not interviewed at
EOIR, he was appointed as an IJ in February 2006. Metcalf later became
a source for recommendations to Monica Goodling for IJ candidates, as
discussed in Section V.D. below.
5.

Other Candidates Selected by Sampson

In a September 2004 e-mail, Sampson advised Ohlson that he
would send EOIR a candidate for an IJ position in Houston.
Consequently, EOIR did not post an announcement for the vacancy. On
October 12, 2004, Sampson sent Ohlson the résumé of a candidate,
stating that “we’d like for you to consider/reach out to” the candidate for
the Houston position. 71 The candidate had served as the Republican
Party Chairman for a county in Texas from 1992 until 1998, and
published political commentary on the county Republican Party website.
Sampson’s computer had a copy of the candidate’s résumé dated
October 12, 2004 that included sections entitled “Political Training” and
“Political Activities and Honors,” both of which evidenced significant
activities on behalf of the Republican Party. The candidate was
appointed as an IJ.
In September 2004, Sampson identified another candidate for
EOIR to contact for an open IJ position in Louisiana. The candidate’s
résumé featured 11 entries detailing activities on behalf of the
Republican Party, including “Bush/Cheney Florida Recount Task Force”
and “Vice-Chairman of Louisiana Republican State Central Committee.”
The candidate was appointed to be an IJ in Louisiana.

71 At his interview with us, Sampson stated that he might have received this
candidate’s name from the White House or from a Senator.

On November 1, 2005, Sampson sent an e-mail to Ohlson stating
that he had “a very strong candidate that [I] would like you to consider”
for immigration judge positions in either Arlington or Falls Church,
Virginia, or Baltimore, Maryland (emphasis in the original). An hour
later, Sampson sent Ohlson an e-mail containing the résumé of the
candidate and a brief message that the candidate “currently serves as
Deputy Associate AG. Please reach out to her directly.”
Approximately 20 minutes before Sampson first contacted Ohlson
about this candidate, the candidate had sent an e-mail to Sampson
stating: “I would like to be considered for any immigration judge
openings.” Sampson responded by asking where she would like to work,
and she responded Arlington, Falls Church, or Baltimore. Three minutes
after receiving that e-mail Sampson had sent the first e-mail to Ohlson
promoting the candidate.
The candidate was a political appointee at the Department and had
served as a Deputy Associate Attorney General since November of 2003.
She had previously served as counsel to two Republican Senators on
various Senate committees. After receiving Sampson’s e-mails, Ohlson
conferred with EOIR Director Rooney. Approximately 30 minutes after
receiving Sampson’s e-mails, Ohlson sent the following e-mail to Chief
Immigration Judge Michael Creppy:
Please see the e-mail below from the AG’s Chief of Staff. I
conferred with Rooney and we are going to respond by saying
that we don’t have any vacancies in Arlington or Baltimore,
but we can create a position in [the Falls Church
headquarters]. (We really don’t have any choice in the
matter . . . .)
The candidate was interviewed by EOIR, and was appointed as an
IJ on January 8, 2006, just over 2 months after the candidate first
expressed interest to Sampson in an IJ position.
C.

Problems Created by the New Hiring Process

We found that the new process under Sampson for selecting IJs
created significant problems because EOIR was not able to fill IJ
positions until Sampson provided the candidates. This caused delays in
appointing IJs, which increased the burden on the immigration courts
that were already experiencing an increased workload. As a result,
Ohlson continually requested candidate names from Sampson, and then
from Williams and Goodling, to address the growing number of
vacancies. Ohlson told us:

I . . . expressed carefully, diplomatically, to Kyle Sampson
and later to Jan Williams the fact that I felt as if these
immigration judge positions were not being filled on a timely
basis, that we needed to do this much more quickly. I
thought the process that we had in the past with the [posted
vacancy announcements] permitted us to do it on a timely
basis. I didn’t know for the most part where they were
getting these names from. All I knew was, I had mentioned
to them where a position would be . . . . and it seemed as if it
took an awfully long time for them ultimately to supply me
with a name.
In several other e-mails to Sampson, Ohlson repeatedly requested
candidates to fill vacant IJ positions. In an e-mail to Sampson dated
May 23, 2005, Ohlson stated the problem again:
[T]he number of IJ vacancies continues to grow. The fact
that so many slots have remained vacant for so long is
beginning to have a measurable impact on the Immigration
Courts because the pending case backlog is beginning to
grow. This unwelcome development is of considerable
concern to the Director because of the potential implications
for the Department. We would like to be able to fill these IJ
slots as quickly as possible.
We found no response to this e-mail.
Ohlson’s e-mails did not appear to have any effect in speeding the
process for IJ candidates to be selected by OAG. Further, EOIR was not
able to fill positions using the “old” method of posting and selecting
candidates for vacancies, but rather had to wait for the OAG to select
candidates for “direct appointment.”
In fact, as we discuss in the next section, the problem became
more acute from 2005 to 2006 when Williams and Goodling became the
Department’s White House liaisons and became involved with IJ hiring.
IV.

Williams’s Recommendations to EOIR

In April 2005, Williams became the Department’s White House
Liaison. Williams, a non-attorney, had worked for the Federalist Society
from 1997 to 2001, and then was hired as a staff assistant at the White
House Presidential Personnel Office where she worked for Sampson.
Williams became a Deputy Associate at that office and held that position
until moving to the Department in 2005.

As the Department’s White House Liaison, her principal duties
were to find and screen candidates for political positions (Schedule C and
non-career SES) within the Department, and to handle the logistics of
the interviewing process. Williams told us that “except in a handful of
cases,” the positions she dealt with were all political. She stated further:
“I did not have hiring authority. I only developed lists of candidates.”
During her tenure at the Department she reported to Sampson, who was
the OAG Chief of Staff.
Although Sampson continued to have personal involvement in the
selection of many IJ candidates, he delegated much of the responsibility
– including communications with EOIR – to Williams when she was
White House Liaison. We found that Williams followed the selection
process Sampson had established, and the IJ candidates she sent to
EOIR were still treated as “presumptive hires.” When Williams told EOIR
to “please consider” candidates, EOIR would recommend the candidates
for appointment unless the candidates did something to affirmatively
disqualify themselves. During this period, the use of this direct
appointment authority continued to be the exclusive avenue for IJ hiring.
Williams stated to us that she did not know that IJ positions were
career rather than political positions. She added that she did not
discuss with Attorney General Gonzales her role in identifying IJ
candidates. Former Attorney General Gonzales told us he did not know
how Williams identified IJ candidates.
A.

Sources for Immigration Judge Candidates

Williams stated that when she worked at the White House,
Sampson would occasionally call her to get “ideas for immigration judge
postings.” When she joined the Department, Sampson told her to
“contact the White House to get any candidate ideas that they had for
immigration judges.” She said the Presidential Personnel Office was her
principal source for candidates. The documentary evidence also shows
that Williams received candidates from the White House Office of Political
Affairs.
As noted above, Scott Jennings, who worked at the White House
Office of Political Affairs, acknowledged to us that the White House
screened candidates for any positions to establish their “political
qualifications.”

Candidates Provided to EOIR by Williams
1.

The White House Seeks to Place “Priority
Candidates”

On May 17, 2005, Williams received an e-mail from the White
House Office of Political Affairs addressed to White House Liaisons in
agencies throughout the executive branch. The e-mail urged the White
House Liaisons to “get creative” and find positions for more than 100
“priority candidates” who “have loyally served the President.” The White
House also sought from each White House Liaison a “pledge of the
number of the 108 priority candidates you can place at your agency.” In
a follow-up e-mail, the White House reiterated that “we simply want to
place as many of our Bush loyalists as possible.” The context of the emails made plain that the positions sought were political, non-career
slots. On May 19, 2005, Williams responded: “We pledge 7 slots within
40 days and 40 nights. Let the games begin!”
Part of Williams’s efforts to fulfill her pledge involved finding IJ
positions for these “priority candidates.” An e-mail chain involving
Williams and the White House dated May 26, 2005, show various
attempts to find candidates for IJ positions who have been “helpful to the
President.”
For example, the White House reached out to a Republican
Congressman, and on June 7, 2005, the Congressman’s staff sent an email to the White House recommending a candidate, described as a
“great Republican,” for an IJ position in New York. On June 15, 2005,
the White House forwarded that e-mail to Williams, adding that the
candidate was a “long time donor to the local GOP,” and that local
Republican Party officials would vouch for him. Williams forwarded the
candidate’s name to EOIR.
EOIR resisted this candidate proposed by the OAG. This was the
only time we found that EOIR resisted any OAG candidate. In an e-mail
dated December 7, 2005, Ohlson advised Williams that the candidate’s
conduct during his EOIR interview “causes us to question whether he
possesses the appropriate judicial temperament and demeanor to serve
as an immigration judge.” Ohlson related that the candidate used
profanity during the interview, acted abrasively, and when asked what
his greatest weakness was, responded “Blondes.” Ohlson offered
Williams an alternate candidate who was supported by ODAG staff. The
OAG did not insist on the White House’s candidate, and the alternative
candidate was selected.

Candidates Solicited from a Civil Division Political
Appointee

Williams continued her efforts in June and July 2005 to fulfill her
pledge to find positions for the White House priority candidates. In email exchanges between Williams and the White House Office of Political
Affairs dating between June 15 and June 21, 2005, Williams expressed
concern about meeting her 40 days/40 nights pledge deadline, and she
sought candidates for five IJ positions she identified by specific location.
She noted in a separate e-mail that she had already sought candidates
from the Federalist Society, but that it had no leads.
On June 21, 2005, Williams sent an e-mail to the White House
asking for more IJ candidates: “I am running past my deadline. Please
send me names by this Wednesday afternoon. These are great
opportunities for good people.”
The White House was not able to find candidates for the IJ
positions (except the candidate described above who was resisted by
EOIR). During the same period, Williams asked a political appointee in
the Department’s Civil Division, Jonathan Cohn, for recommendations.
In an e-mail dated June 15, 2005, Cohn provided seven names. In
response, Williams asked one question: “are they like you and me?”
Cohn replied that he did not know, but that he knew two of them were
“tough on immigration enforcement.” 72
Three weeks later, on July 7, 2005, Williams transmitted to EOIR
the names of eight candidates for specific IJ positions. Ohlson
responded the same day in an e-mail, noting that one of the named
candidates was under investigation by the Department for professional
misconduct, and that EOIR could not take any action on another
candidate because “we don’t know who she is and we don’t have any way
to contact her.” A third candidate was the one EOIR had resisted. That
left just five remaining candidates.

In a May 2004 e-mail exchange, Cohn had discussed with Williams’s
predecessor, Susan Richmond, the fact that the EOIR General Counsel position was
vacant and expressed concern that it would be a problem if the ODAG “were to clear a
lib” for that “significant position.” Richmond responded that “we should get Kyle
Sampson involved” if there were problems in identifying a suitable candidate. Cohn
responded that “the presumptive front-runner is a dem.” Richmond forwarded the email chain to Sampson. The EOIR General Counsel is a career position, and use of
political party affiliation to screen candidates for that position would violate federal law
and Department policy. The position was eventually filled with a career EOIR attorney
supported by EOIR Director Rooney.
72

On July 28, 2005, Williams e-mailed to EOIR the name of a sixth
candidate for another IJ position. Williams received this name from the
White House Liaison at the Department of Homeland Security.
The résumés of three of the remaining six candidates showed that
they had held career positions with the Department, and their résumés
do not contain any overtly political references. The résumé for the fourth
candidate contained a reference to being a “Former Edison Township
Republican Committee Person.”
These four candidates were interviewed by EOIR in August 2005.
On September 2, 2005, Sampson requested a copy of the EOIR
paperwork to review before clearing the candidates for appointment. All
four were appointed as IJs. The fifth candidate was also subsequently
appointed as an IJ. The sixth indicated he was not interested in
becoming an IJ.
3.

EOIR Requested Immigration Judges

EOIR’s need for additional IJs to handle the increasing
immigration work load continued to grow during Williams’s tenure as the
Department’s White House Liaison. During this period, the OAG still
controlled the process for selecting IJs, and direct appointments
continued to be the exclusive avenue for IJ hiring. However, Williams
was not able to select enough candidates to keep pace with the IJ
vacancies and newly created positions. Williams told us that “To be
frank, the task of finding immigration judge candidates did not get all of
my attention.”
We found that, at the time, EOIR reminded her repeatedly that its
mission was being compromised by the IJ vacancies. For example, in an
e-mail to Williams on July 7, 2005, Ohlson observed that six additional
IJ positions would soon be open, and stated: “We really are under
tremendous pressure to continue to adjudicate on a timely basis the
flood of cases we receive each month, and the only way we can keep up is
if we fill immigration judge vacancies in a timely manner.”
On July 22, 2005, Ohlson sent another e-mail to Williams stating:
Jan – I know you’re busy, but I need to touch base with you
to determine the status of the search for immigration judge
candidates. As you’re aware, DHS enforcement activities are
continuing to increase the number of aliens who appear in
the immigration courts. The only way that we can
adjudicate these cases in a timely manner is if we have a full
complement of immigration judges on the bench. However, a
number of IJ positions have remained unfilled for many

months, and we expect that a considerable number of
additional openings will arise in the relatively near future. I
am concerned that at some point people on the Hill or in the
media will start to ask why we have not been filling these IJ
vacancies as part of the Administration’s effort to ensure
that illegal aliens who pose a danger to us are deported in an
expeditious manner. The fact that EOIR has adequate
funding to pay for these immigration judges will merely serve
to sharpen the debate.
To address the IJ vacancy problem, Ohlson suggested that “in
addition to getting names from the White House,” it “may be wise to run
a nation-wide advertisement soliciting applications for IJ positions.”
Ohlson assured Williams that the OAG would still be able to choose from
among the candidates generated, and asked that she consider this
approach.
Ohlson spoke with Williams on July 26, 2005, and she authorized
Ohlson to run the nation-wide advertisement he had suggested. Ohlson
sent an e-mail to Williams on July 28 referencing their conversation: “As
we discussed, we will submit for your review the list of candidates who
apply. Furthermore, any candidates you supply will receive priority
treatment.” Ohlson told us that he “stressed to [Williams] that this was
not undercutting the authority of the [A]ttorney [G]eneral’s office and her
ability personally to decide who the candidates were going to be. That in
fact, this was merely creating a pool of candidates from which she could
draw.”
After running announcements for IJ candidates, EOIR developed
lists of candidates, which it sent to Williams in packets identified by the
geographical location of the IJ vacancy. For each location, EOIR
forwarded 5 to 10 résumés.
4.

Candidates Selected by Williams who had also
Applied Through the Vacancy Announcement

We found that, in practice, résumés sent to Williams by EOIR of
candidates who applied in response to the advertisement were ignored
unless the candidate enjoyed support from Republican-affiliated sources,
and the advertisement did not affect the manner in which the OAG
selected IJs.
We found that on one occasion Williams selected a candidate who
had submitted a formal application in response to the job posting.
However, Williams only selected that candidate for an IJ position after

Garry Malphrus (whose appointment we describe above) sent an e-mail
to Williams endorsing the candidate.
This candidate’s résumé reflected a prior position as Legal Counsel
to a Republican Senator from Montana. Williams forwarded the
candidate’s résumé to Ohlson with the instruction: “for L.A.” The
candidate subsequently was appointed to be an IJ in Los Angeles.
On another occasion, Malphrus recommended to Williams another
candidate who had applied in response to the advertisement. Sampson
approved the candidate’s appointment, and he was appointed an IJ.
A third candidate who applied in response to the advertisement
was also subsequently selected by Williams. However, Williams
considered him not because he had responded to the advertisement, but
because she had received his name and résumé from the White House.
This candidate’s résumé included multiple entries that show his political
affiliations, such as “Legal Advisor, Bush Florida Recount Team” in 2000;
“Bush Delegate to the Republican National Convention” in 2004; “RNC
72-Hour Task Force, Miami” in 2004; “Treasurer, Republican Party of
Louisiana, 2000-2002 term.” In an e-mail to Ohlson dated January 24,
2006, Williams wrote that the individual “[i]s my candidate for Miami.”
EOIR documents indicate that the candidate was not interviewed at
EOIR, but was appointed as an IJ.
5.

Additional White House Candidates Provided to
EOIR

On March 3, 2006, the White House Office of Political Affairs sent
an e-mail to Williams recommending another candidate for a position as
an IJ. The attached résumé showed that the candidate served as the
“Local Counsel for Republican National Committee,” as well as the
“General Counsel to NJ Senate Republican Committee.” The résumé also
detailed the candidate’s activities on behalf of various Republican
candidates.
On March 14, 2006, Williams sent an e-mail to Ohlson forwarding
the candidate’s name and résumé, stating: “Candidate for NJ seat.” Her
selection was approved by Sampson, and she was appointed as an IJ.
In March and April 2006 the White House Office of Political Affairs
sent to Williams the names of two candidates for IJ positions. One was
hired as an IJ in May 2006; the other was offered an IJ position by
Williams, but declined the offer.

The Direct Appointment Process Continued to Affect
EOIR

We found no evidence that the candidates Ohlson sent Williams
from the nationwide announcement received any consideration unless
the candidate was independently backed by the White House or by
political appointees. During this period, Williams selected a handful of
candidates, but not nearly enough to fill all the IJ vacancies. Because
EOIR was not authorized to process any candidate who had not been
approved by the OAG, it was not able to address the shortage of IJs and
the increasing immigration caseload. Ohlson continued to bring this
problem to Williams’s attention, but to no avail.
For example, in an e-mail dated September 21, 2005, Ohlson
advised Williams of numerous IJ vacancies. In another e-mail dated
November 14, 2005, Ohlson again asked Williams whether she had
reviewed any of the candidate packets EOIR had provided, and reminded
her that “productivity in the immigration courts is being affected by these
vacancies.” On January 26, 2006, Ohlson advised Williams that
additional vacancies were pending, and that more IJs were needed “to
address our ever-increasing caseload.” On March 1, 2006, Ohlson sent
another e-mail to Williams stating that “we could use your help filling
some upcoming IJ vacancies.”
When we interviewed Williams, she stated that it was “incredibly
hard to find candidates for immigration judge posts.” She stated further
that she repeatedly asked Ohlson whether he had candidates for IJ
positions. However, we found that the evidence demonstrated that
Williams did not ask Ohlson whether he had candidates; rather, she
asked only if EOIR had vacancies and then she selected the candidates
to fill those vacancies. Although she allowed EOIR to post
advertisements, she did not consider any of the people whose résumés
were forwarded by EOIR unless the candidate’s political bona fides were
supported by the White House or other political sources. Furthermore,
we found that when Ohlson did recommend a specific candidate for an IJ
position, Williams did not respond to his suggestion, even after Ohlson
reiterated his recommendation in several additional e-mails.
D.

Search Terms for Screening Candidates

As described previously, at some point during the year that she
served as the Department’s White House Liaison, Williams attended a
seminar held at the White House Presidential Personnel Office where she
received a document entitled “The Thorough Process of Investigation.”
The document explained how to conduct searches on Nexis, and included
an example of a search string that contained political terms (e.g.,

“republican,” “Bush or Cheney,” “Karl Rove,” “Howard Dean,”
“democrat!,” “liberal,” “abortion or pro-choice”) as well as generic terms
(e.g., “arrest!,” “bankrupt!”).
In her interview with us, Williams claimed: “[I] never used the
search [string] while I was at the Department.” However, as described
earlier, when she left the Department in April 2006, Williams sent an email to incoming White House Liaison Goodling that contained a search
string, and stated: “This is the lexis nexis search string that I use for AG
appointments.” The string reads as follows:
[first name of a candidate] and pre/2 [last name of a
candidate] w/7 bush or gore or republican! or democrat! or
charg! or accus! or criticiz! or blam! or defend! or iran contra
or clinton or spotted owl or florida recount or sex! or
controvers! or racis! or fraud! or investigat! or bankrupt! or
layoff! or downsiz! or PNTR or NAFTA or outsourc! or indict!
or enron or kerry or iraq or wmd! or arrest! or intox! or fired
or sex! or racis! or intox! or slur! or arrest! or fired or
controvers! or abortion! or gay! or homosexual! or gun! or
firearm!
When we showed Williams this e-mail and the attached search
string, she said she did not recall sending it to Goodling. She also said
she did not recognize the search string, and that she did not know where
the list of search terms came from. At the end of her interview, we raised
the issue again and Williams repeated her assertion that she did not
remember using the search string.
The day after her interview, Williams sent us an e-mail stating that
she “thought about the research string and have some information that I
want to share with you.” She wrote that there had been a political
vacancy in the Department’s Environment and Natural Resources
Division in December 2005, that a law professor was a candidate, and
that Sampson asked her to research the law professor’s writings.
Williams stated that she “called the researcher in the White House Office
of Presidential Personnel to get some research tips.” Williams said the
researcher sent her a “Lexis Nexis research string,” and that she edited
the string to remove “words like homosexual” and then used it. Williams
claimed that she only used the search string that one time, “never ever
used it to reach Immigration Judges,” and that the string she sent to
Goodling did not contain “words like ‘homosexual.’”
However, we concluded that Williams’s assertions regarding the
search string and her use of the tool were not accurate. The string she
sent to Goodling via e-mail in April 2006 did contain the terms

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“homosexual!” and “gay!” Furthermore, the evidence showed she used
the search string more than once, and the terms were also included in
those searches.
We searched both Williams’s e-mails and electronic files saved on
her computer, and did not find evidence on her computer that Williams
conducted other Internet searches using this search string. However, we
obtained information from LexisNexis that Williams used this search
string multiple times on 3 days in November and December 2005 and
January 2006. Williams used the search string to research 25 people, of
whom 23 were candidates for the National Advisory Committee on
Violence Against Women. One of the other two candidates was the
person Williams referred to in her e-mail to us after we interviewed
Williams. We could not determine the identity of the remaining person
Williams researched using the search string. None of these people were
candidates for IJ or BIA positions. All of the searches Williams
conducted contained search terms such as “gay!” and “homosexual!”
When we asked Williams about the LexisNexis searches, she stated that
she did not recall researching the candidates for the National Advisory
Committee on Violence Against Women or using the string search other
than the one time discussed above.
V.

Goodling’s Recommendations to EOIR

In April 2006, Williams left the Department and Goodling replaced
her as the Department’s White House Liaison.
On April 20, 2006, Sampson sent an e-mail to Ohlson introducing
Goodling as “our new White House Liaison – handling all manner of
personnel and appointments matters.” Sampson stated in the e-mail
that Goodling “is the point person in OAG on IJ/BIA appointments,” and
Sampson reiterated that the direct appointment authority would
continue to be the only channel for hiring: “I also want to be sure that
we continue to be notified of IJ/BIA vacancies and expected vacancies so
that the AG can have an opportunity to feed into the appointment
process.”
Under Goodling, the OAG continued its control over the hiring of
IJs, and all candidates for IJ positions were selected by the OAG for
direct appointment. Goodling followed the same selection process for IJ
candidates as Williams, although Goodling took an even more active role
in finding and screening candidates. Goodling interviewed candidates
and also researched candidates submitted by the White House using the
search string provided by Williams. In addition, Goodling discussed IJ
positions with various individuals who she was screening for political

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positions. The IJ candidates forwarded to EOIR by Goodling remained
“presumptive hires.”
As noted above, Goodling declined to be interviewed by us. In her
congressional testimony, however, Goodling stated that she had been
told by Sampson shortly after becoming White House Liaison that it was
appropriate to take political factors into consideration in hiring IJs
because they were “direct appointments by the Attorney General.”
According to Goodling’s written statement to Congress, Sampson told her
that the Office of Legal Counsel had advised that “Immigration Judge
appointments were not subject to the civil service rules applicable to
other career positions.”
In Sampson’s congressional testimony, he stated that he did not
remember giving such advice to Goodling when she became White House
Liaison. However, Sampson told us that such a conversation would have
been consistent with his belief that IJ hiring was not subject to civil
service laws. It is clear, however, that the process for selecting IJs that
was in place when Goodling became the Department’s White House
Liaison, and the process used by Goodling, treated IJ positions as if they
were political appointments.
Sampson did not tell Goodling that civil service laws did not apply
to hiring BIA members. Rather, Goodling testified that she “assumed”
that the rules applicable to IJ hiring “applied to BIA positions as well.”
A.

Sources for Immigration Judge Candidates

Under Goodling, the principal source for IJ candidates continued
to be the White House, which, as discussed above, conducted its own
political screening of candidates before sending them to Goodling. The
same day that Sampson sent an e-mail to numerous people in the
Department introducing Goodling as the Department’s new White House
Liaison, Goodling and Scott Jennings at the White House Office of
Political Affairs exchanged e-mails about the White House finding
candidates for IJ positions. Another e-mail from Goodling to Jennings on
April 24, 2005, asked for candidates for IJ positions in various cities. In
an e-mail to Jennings dated August 4, 2006, Goodling asked for IJ
candidates for five specific locations. Goodling and Jennings exchanged
other similar e-mails about IJs, including one on August 22, 2006, in
which Jennings forwarded to Goodling a candidate for an IJ position
whose “political credentials” Jennings said had been verified by the White
House.
The White House, in turn, solicited candidates for IJ positions from
the Republican National Lawyers Association, Republican National

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Committeemen, state and local Republican Party officials, the Federalist
Society, and prominent Republicans, and provided those candidates to
Goodling for consideration.
Goodling considered several candidates recommended by
Republican Congressmen. For example, in an April 24, 2006, e-mail to
Jennings, Goodling advised that “the Ohio Senators have already put in
recommendations” for IJ positions in Cleveland. In addition, Republican
Senators from Pennsylvania and Texas provided candidates to Goodling.
Republican Members of the House of Representatives also recommended
candidates for IJ positions, and the White House forwarded those
recommendations to Goodling. 73
B.

Political Screening by Goodling

As described in Chapter Three of this report, Goodling used a
variety of techniques for researching the political or ideological
affiliations of candidates for political positions. These techniques
included using computer websites to research candidates’ political
contributions and voter registration records, using variations on the
Internet search string that Williams had provided her, and asking
questions regarding political affiliation during her interviews and in
reference checks. We found that Goodling also used these tools in
screening candidates for career IJ positions.
1.

Candidates Considered for Career and Political
Positions

Goodling acknowledged in her congressional testimony that she
asked “political questions” of candidates who were considered for both
career and political positions. We found several examples of that
occurring with respect to candidates for IJ positions.
One example is the first candidate recommended by Senator Hatch
for an IJ position. As detailed above, the candidate withdrew from
consideration for that position for family reasons, but in an e-mail to
Goodling dated August 23, 2006, Sampson forwarded the candidate’s
interest in “a career slot as chief immigration judge in EOIR or as one of
any political slots.” When the candidate met with Goodling on
September 8, 2006, she asked him to fill out the White House PPO form,
where he indicated that he was a Republican and that he voted for
President Bush. At the outset of the interview, Goodling told the
73 We did not find any evidence of Goodling soliciting or receiving
recommendations from Democratic Members of Congress.

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candidate that he was not being considered for the CIJ position, but she
invited him to apply for an IJ position. Only after the candidate
indicated that he was not interested in the locations where IJ positions
were available did Goodling raise the issue of a possible political position.
Another example relates to a candidate who was referred to
Goodling by a speechwriter for Attorney General Gonzales. The
candidate was asked to fill out the White House PPO form online, which
he did. According to the candidate, he was interested primarily in nonpolitical positions, such as an IJ position or an AUSA position, but he
was also interested in potential political positions. At his interview,
Goodling asked the candidate about his political affiliation, his political
campaign involvement, who he voted for, to whom he made political
contributions, and for the name of a public figure who was “a
[candidate’s name] Republican.” After the candidate answered these
questions, Goodling told him that filling IJ positions was a “priority for
her.” She also indicated that she would talk to certain U.S. Attorneys
who were “receptive to her opinions” about obtaining a position for him
as an AUSA. 74 The candidate later informed Goodling that he was not
interested in an IJ position, and he said Goodling did not follow up on
his interest in an AUSA position.
A similar incident occurred with another candidate who filled out a
White House PPO form and was interested primarily in political
positions. Goodling’s notes indicate that she asked him the questions
that were asked of all candidates for a political appointment, such as
what kind of conservative he was, his favorite Supreme Court Justice,
and his views on the death penalty. The candidate told us that it seemed
to him that Goodling was working from a “check list.” He said that they
also discussed abortion and the “conservative religiously affiliated school
. . . very [R]epublican school” that he had attended. One of Goodling’s
notes from the interview reads: “Cons. On ‘god, guns + gays’.”
Goodling told the candidate she was looking for IJs. He conveyed
to her that he knew “less than zero about immigration law,” but that he
was “more hawkish” than President Bush about policing the country’s
borders to keep aliens out. Goodling’s notes contain the entry: “Strong
on immigration.” The candidate’s name was not forwarded to EOIR.
2.

Candidates Provided to EOIR by Goodling

Goodling stated in her congressional testimony that she
“recommended approximately seven people to be interviewed by EOIR for
74

Goodling did not find a position for the candidate.

104

Immigration Judge positions and recommended four individuals to be
appointed to the BIA.” She admitted that she “took political
considerations into account” in “reviewing resumes and soliciting
applications” for those positions.
In an e-mail dated July 31, 2006, Goodling instructed Ohlson to
“consider the [five] individuals listed” for specified IJ positions. Ohlson
replied in an e-mail dated August 2, 2006, that “the Office of the Chief
Immigration Judge called [3 of the candidates] to schedule ‘interviews’ for
the week of August 14.” Ohlson added that EOIR had no information on
the fourth candidate and thus could not contact him. The fifth candidate
was known to EOIR. In the e-mail, Ohlson also identified additional IJ
vacancies that needed filling.
When we interviewed Ohlson, he explained why he put the term
“interviews” in quotation marks in his e-mail to Goodling:
By the time of August 2006 . . . it had become apparent to
me that the interviews were essentially pro forma. And in
fact at that point, there were some hires [who were not]
interviewed. And so I was trying to signal there that I
recognized that fact. 75
By August 4, 2006, EOIR had been able to locate the fourth
candidate and had been instructed by Goodling (in an e-mail of the same
date) to contact another candidate for a sixth position. Four of the six
candidates referred to EOIR at this time by Goodling had letters of
recommendation from Republican Members of Congress, and a fifth was
recommended by the White House.
Another example of a candidate recommended by Goodling was a
career Department attorney from the Civil Rights Division whose interest
in an IJ position was supported by Bradley Schlozman, a political
appointee in the Department. Schlozman sent an e-mail dated
December 4, 2006, to Goodling endorsing the candidate:
Hey Monica. I had a chance to speak with [the candidate]
regarding the IJ position. Let me say at the outset that his
views on immigration are virtually identical to my own. And
you’d be pleased with my views. . . . [He] is a guy I know
As discussed above, we also determined that Goodling’s “recommendations”
had the practical effect of appointing the candidate, which Goodling knew. For
example, in an e-mail to Sampson dated August 24, 2006, she referred to an IJ position
in Boston that “I filled.” At the time, EOIR had not even transmitted the paperwork to
the ODAG “recommending” the candidate for appointment.
75

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well and ‘saw the light’ about 10 years ago. I will get his
resume for you, but don’t be dissuaded by his ACLU work on
voting matters from years ago. This is a very different man,
and particularly on immigration issues, he is a true member
of the team.
Schlozman added that the candidate would be “a great legacy for this
Administration/Dept on the IJ court.”
Goodling interviewed the candidate in early December 2006, but
her file did not contain any notes from the interview. On December 14,
2006, Goodling sent an e-mail instructing EOIR to “consider” the
candidate for an IJ position at EOIR Headquarters, directing further that
he should be transferred to the immigration court in Charlotte, North
Carolina “when that court is ready.” However, the candidate was not
appointed because the hiring of IJs was stopped when the Civil Division
in January 2007 expressed its concerns about the legality of the manner
in which the direct appointment authority was implemented.
Another candidate, who was a graduate of Regent University
School of Law, Goodling’s alma mater, submitted his résumé directly to
Goodling in an e-mail dated December 13, 2006. His résumé showed
that he had been an intern for the Republican majority on the House
Judiciary Committee. The next day, Goodling sent an e-mail instructing
EOIR to “consider” him for an IJ position at Tacoma, Washington. The
candidate was not appointed because the hiring of IJs was halted in
January 2007.
C.

Increasing Vacancies for Immigration Judges

The problems for EOIR created by increasing vacancies and an
increasing workload continued to worsen during Goodling’s tenure as the
Department’s White House Liaison, due in part to the delays caused by
the additional screening that she conducted. In an e-mail to EOIR
Director Rooney dated July 25, 2006, Deputy Director Ohlson noted that
eight vacancies “have been sitting with Monica (and sitting, and sitting,
and . . .).” Some of those vacancies were addressed in Goodling’s
referrals on July 31, 2006, described above, but many other vacancies
went unaddressed, and Ohlson sent an e-mail to Goodling on August 2,
2006, identifying them.
In a response dated August 4, 2006, Goodling told Ohlson that she
would “be happy to see what names you have for some of these other
openings.” Ohlson immediately forwarded Goodling’s e-mail to several
Assistant Chief Immigration Judges, stating: “We have a golden
opportunity here. Lets provide her with great candidates for the
remaining slots as soon as possible.” When we interviewed Ohlson, he

106

explained that he saw it as an opportunity to provide Goodling with
“outstanding candidates who have immigration [law] backgrounds.”
On August 18, 2006, Ohlson sent an e-mail to Goodling advising
her that: “we have compiled a binder that contains [résumés] of about
ten of the best candidates who applied for immigration judge positions
and specifically asked to be assigned to these designated cities. This
binder is being sent to you this afternoon.” The e-mail stressed that
Goodling would retain her authority to select the candidates for
appointment: “Once you have identified candidates for these positions,
we will interview them immediately.”
On September 1, 2006, Ohlson sent another e-mail to Goodling
reminding her of vacancies in various cities. Goodling responded the
same day that she had been “studying the folks you submitted.” Shortly
after this e-mail, Ohlson met with Goodling at her office, and Ohlson said
she told him that it took time to select IJ candidates because she was
conducting “background research on all these candidates.” Ohlson said
Goodling did not describe to him the kind of research she was
conducting.
On September 20, 2006, Ohlson sent another e-mail to Goodling
attaching a document listing IJ vacancies and noting that résumés for
additional candidates would be faxed to Goodling later that day. The
evidence indicates that Goodling did not select any of the dozens of
candidates submitted to her by EOIR in the binder or in this follow-up,
and EOIR was thus unable to hire IJs to help address its increasing
workload. In an e-mail to an official in the ODAG dated November 15,
2006, Ohlson wrote:
Please see the attached document which I sent to Monica a
couple of months ago. . . . The bottom line is that we have
TWENTY-FIVE IJ vacancies that need to be filled. The vast
majority of these slots are new positions. However, a couple
of the slots . . . have been vacant since the time Jan Williams
was in the AG’s office. In September we provided Monica
with either specific names for each position, or the resumes
of the top five candidates who applied to fill each slot. She
has indicated on a couple of occasions that she was on the
cusp of naming some people, but . . . .
As noted above, Goodling ultimately selected only two candidates
in December 2006.

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Screening of Candidates by Immigration Judges in
Florida

Goodling also received the names of candidates for IJ positions
from IJs Garry Malphrus and Mark Metcalf. As detailed above in Section
III.B.4., both Malphrus and Metcalf had been selected and approved by
Sampson, and both were appointed IJs without being interviewed by
EOIR. Both had strong Republican political affiliations, and both were
asked by Goodling to identify candidates for IJ vacancies. Malphrus and
Metcalf appear to have coordinated some of their efforts with each other
and with another IJ in Florida, Rex Ford.
In an e-mail to Sampson dated April 20, 2006, Malphrus offered
“to be of any assistance” to Goodling in identifying IJ candidates for
upcoming vacancies. As noted above, Malphrus had performed a similar
function for Williams, and he told us that he spoke with Goodling
regarding candidates for open positions. In his April 20 e-mail,
Malphrus also recommended that IJ Ford be considered for the post of
Chief Immigration Judge: “he would be excellent based on his
experience, leadership skills, and loyalty.” When we interviewed
Malphrus, he told us that “loyalty” meant “loyalty to the Bush
Administration.” The Chief Immigration Judge is a career SES position.
The first candidate Metcalf recommended to Goodling was a
candidate who Ford had recommended to him. Metcalf obtained the
candidate’s résumé from Ford, spoke with the candidate, and then
recommended him to Goodling. Goodling, in turn, instructed EOIR to
“consider” the candidate, and he was appointed as an IJ.
When we interviewed Malphrus, Metcalf, and Ford, they denied
that they considered political affiliations in recommending IJ candidates
to Goodling. They also said there was not a concerted effort to identify
candidates, although Malphrus admitted that they “had a discussion
about it a couple of times.”
In his November 14, 2006, e-mail to Sampson recommending a
candidate, Metcalf noted that Malphrus and Ford also supported the
candidate. Metcalf added: “our search for solid judges should be
ramping up.”
A series of e-mails from Metcalf to Goodling on December 1, 2006,
recommended to Goodling six persons for IJ positions. In the first email, Metcalf advised Goodling that all of the candidates “have been
vetted here in Miami by Judge Ford.”
The first candidate was a former elected official who was on the
Republican Executive Committee of Palm Beach County. Metcalf’s e-mail

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stated: “Rex Ford highly recommends him. His credentials look very
strong to me.” The e-mail attached a separate e-mail from Ford, which
stated: “Let Monica know that she can contact . . . (W’s county
Chairman in 2000 and 2004 in Palm Beach County) for any additional
information.”
The second candidate was the wife of an IJ who had been assigned
to mentor Metcalf. She was an experienced immigration lawyer. Metcalf
noted that Judge Ford was familiar with the third candidate. The fourth
was a long-time friend of Metcalf’s whose résumé stated that he was a
member of the Federalist Society. Metcalf’s e-mail to Goodling stated
that: “Judge Ford interviewed him yesterday and endorses his
appointment. So do I.” When we asked Metcalf if he interviewed the
candidate, Metcalf said “No.” But when asked later what criteria Ford
used in reviewing candidates, Metcalf acknowledged that he was present
when Ford interviewed the candidate, and stated that “there was never
any mention of politics.”
The fifth candidate was a DHS attorney who had only 4 years
experience as a lawyer. The public advertisements specified that IJ
candidates had to have at least 7 years of legal experience. Metcalf
advised that the candidate “has Judge Ford and [a fourth IJ’s] strong
support – mine too.” Regarding the sixth candidate, Metcalf stated to
Goodling that the candidate was supported by the fourth IJ, who Metcalf
represented had been a “former Associate White House Counsel under
Reagan.” 76 Goodling’s copy of the résumé contains the handwritten
comment: “conservative.”
Metcalf recommended a seventh candidate to Goodling on
January 5, 2007, who was vouched for by former Department political
appointee.
At his interview with us, Metcalf said he did not recall
recommending any other candidates to Goodling. A review of Goodling’s
e-mails, however, indicated that Metcalf recommended at least three
additional candidates to Goodling in January 2007, one of whom was
also endorsed by Ford. Two were sponsored by the Chairman Emeritus
of the Republican Party of Orange County (a fact conveyed to Metcalf and
relayed to Goodling). In the e-mail chain that reached Goodling via
This statement by Metcalf was not accurate. The fourth IJ never worked for
the White House Counsel’s Office; he had spent his entire career working at EOIR. The
fourth IJ told us that he did not support the fifth candidate because he was too
inexperienced, and that he said so to Metcalf when Metcalf asked about him. The
fourth IJ, who was Metcalf’s mentor, also opined that Metcalf’s recommendation of the
IJ’s wife may have been an attempt by Metcalf to curry his favor.
76

109

Metcalf, the Chairman Emeritus described the candidates as “good
Republicans.”
E.

Candidates Selected by Goodling for Positions on the
Board of Immigration Appeals

Goodling also acknowledged in her congressional testimony that
she “took political considerations into account” in connection with
recommending four persons to be appointed to career positions on the
Board of Immigration Appeals. Goodling testified that she “assumed”
that the rules applicable to IJ hiring “applied to BIA positions as well.”
We determined that on August 30, 2006, Goodling asked an
attorney at OLC about the legal framework for hiring the Chair and Vice
Chair on the BIA. On September 13, 2006, the OLC attorney sent an email to Goodling attaching an “informal” memorandum and advising that
OLC would create “a more formal version for future reference that will
include the hiring of ordinary IJs and Board members.” 77 The informal
memorandum explained that the Chair of the BIA was a career SES
position, and that one of the two Vice Chair positions was career SES
and the other was a Schedule A career position. The memorandum
noted further that the other Board members were Schedule A career
positions.
Despite this advice, Goodling subsequently selected candidates for
the four vacant BIA positions based on political or ideological
considerations. The four candidates she selected for the vacant BIA
positions included Garry Malphrus, whose political affiliations are
discussed in Section III.B.4. above. A second candidate had support
from Department political appointees, one of whom described the
candidate in an e-mail to Goodling as “a Republican.”
A third candidate was a career government attorney who contacted
Sampson, whom he knew through church contacts, to express his
interest in becoming an IJ. After consulting with Goodling, Sampson
learned there was an IJ vacancy in one of the locations requested by the
candidate (Hartford, Connecticut). Sampson endorsed the candidate as a
“very good guy” in an e-mail to Goodling on November 15, 2006. The
same day, Goodling forwarded the e-mail chain to Angela Williamson
with the brief instruction: “Please vet.” Documents demonstrate that
Williamson ran the Nexis search that same day on the candidate.
The formal OLC memorandum regarding IJ hiring was not completed until
March 29, 2007. The formal OLC memorandum on BIA members was not completed
until August 8, 2007.
77

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However, in an e-mail to Sampson on November 27, 2006, the
candidate advised that he did not want an IJ position in Hartford for
family reasons, and asked if there were IJ positions available in Arlington
or Baltimore. Sampson consulted with Goodling, and she reported on
December 8, 2006, that there were “no vacancies for IJs in those . . .
locations, but . . . I’m checking him out for a BIA spot.”
The candidate interviewed with Goodling on December 18, 2006.
Prior to the interview, he was asked to fill out the White House PPO form
that sought information about political party affiliation and involvement
in the 2000 and 2004 Bush/Cheney campaigns. The candidate
completed the form, writing “Republican” and “2004 – 72-Hour Project
for Bush/Cheney - New Mexico,” and providing information about his
voting address and county. The candidate told us that he believed
Goodling had the form in front of her during the interview. He said that
Goodling asked him who his favorite Supreme Court Justice was. The
candidate also said it was his impression that Goodling used the
question “to get at my political views.”
A fourth candidate was a career Department attorney in the Civil
Division’s Office of Immigration Litigation who had worked at the White
House as the Director of Immigration Security from June 2004 to April
2005. In the fall of 2006, this candidate heard that there would be
vacancies on the BIA, and he expressed his interest to Jonathan Cohn,
the Department political appointee to whom Jan Williams had turned for
IJ candidates (see Section IV.B.2. above). The candidate also asked other
political appointees in the Department to recommend him, and he gave
his résumé to Rachel Brand, the AAG for the Office of Legal Policy, who
in turn contacted Goodling. In an e-mail to Goodling dated August 4,
2006, Brand described the candidate as “completely on the team.”
Goodling and Sampson interviewed the candidate on
September 28, 2006, although Sampson was only present for a few
minutes of the interview. The candidate told us that Goodling did not
ask him any questions about his political affiliations, political campaign
activities, or about political contributions.
In an e-mail to OAG Deputy Chief of Staff and Counselor to the
Attorney General Courtney Elwood and others dated January 5, 2007,
Goodling stated that Attorney General Gonzales had “approved”
Malphrus and three other candidates “for appointment to the BIA.” 78
The same day, Elwood (and others, including OLC) received an e-mail
78 Gonzales told us that he had no recollection of approving the four candidates,
and no knowledge of how they were selected.

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from the Civil Division advising that after a “series of discussions” there
was “general agreement” that “OLC and [the Civil Division] need to confer
regarding whether the current procedures for selecting/appointing Board
[of Immigration Appeals] members and/or IJs comport with merit system
principles (and are otherwise lawful.)” The e-mail continued: “Until that
occurs, the Department should hold off on making any such
appointments.” As detailed below, this advice stemmed from concerns
developed by the Civil Division in the course of defending the lawsuit,
Gonzalez v. Gonzales filed by an unsuccessful candidate for an IJ
position. The Department followed the Civil Division’s advice, and all
hiring of IJs and BIA members was halted. Consequently, the four
candidates selected by Goodling were not appointed to the BIA. Later,
one of the four was appointed to the BIA under the new hiring process
described below.
EOIR Deputy Director Ohlson told us when Goodling informed him
that her four candidates were becoming BIA members, she made it plain
that EOIR was not supposed to interview them. He said, “It was much
more explicit than with any immigration judge positions.” 79
F.

The Hiring Freeze

The hiring freeze resulted from a lawsuit filed on September 30,
2005, by Guadalupe Gonzalez, a career government immigration lawyer
and the Chief Counsel for the U.S. Immigration and Customs
Enforcement (ICE) in El Paso, Texas. In her suit against the Department,
she alleged that she was discriminated against based on her gender and
national origin (Hispanic) when she was not selected for an IJ position in
November 2004. The two applicants who were hired were ICE attorneys
junior to Gonzalez, and one was her direct subordinate. Both persons
hired were direct appointments who had been provided to EOIR by
Sampson.
The Civil Division attorneys representing the Department in the
litigation were in contact with the OAG and ODAG to obtain information
about the IJ hiring process. In conducting their factual investigation, the
Civil Division attorneys interviewed Sampson on December 11, 2006, to
learn about the OAG’s involvement in selecting IJs. Sampson explained
Finally, we found that in a separate example of political screening, Goodling
contacted Associate Deputy Attorney General David Margolis to inquire about Ohlson,
who was being considered for the position of EOIR Director, after Rooney had
announced his retirement in February 2007. According to Margolis, Goodling asked:
“As to your friend Kevin Ohlson, can you tell me whether he’s a D or an R?” Margolis
told us that he told Goodling that Ohlson was a career Department attorney, but that
he may have been more “politically attuned” to Republicans than to Democrats.
79

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how the OAG was exercising the direct appointment authority, and how
that differed from past practice in which EOIR identified and selected the
candidates. Sampson stated further that his sources for candidates were
the White House and recommendations from Members of Congress. The
Civil Division attorneys’ notes reflect that Sampson acknowledged that
the process typically resulted in selection of Republicans.
On January 5, 2007, one of the Civil Division attorneys
representing the Department in the IJ lawsuit interviewed Goodling.
Courtney Elwood of the OAG was present by telephone for part of the
interview. 80 According to the Civil Division attorney, Goodling stated that
she contacted the White House to get IJ candidates, and that she also
received candidate résumés from Members of Congress and from
individuals recommending specific people. She stated that she and
Angela Williamson were responsible for screening candidates before
sending them to EOIR for interviews.
In an e-mail memorializing the interview, which was sent to several
Civil Division attorneys on January 7, 2007, the Civil Division attorney
stated: “Monica made clear that she does not inquire about or consider
political affiliation in generating candidates.” Elwood, who was not
present for the entire interview, told us that she recalled that Goodling
“equivocat[ed]” when asked whether she considered political factors.
Elwood stated further that Goodling “tried to dodge [the question] and
then maybe was pinned down.”
However, the Civil Division attorney told us that he had asked
Goodling whether political considerations played a role in IJ hiring, and
Goodling replied that they did not. The Civil Division attorney added “I
did specifically ask her whether political affiliation was taken into
account. She told me no.”
Numerous memoranda written shortly after the Civil Division
interviewed Goodling were circulated among the OAG, OLC, and the Civil
Division, and they also reported that Goodling stated that she did not
inquire about or consider political affiliation in generating IJ candidates.
As noted above, the day after the Civil Division attorney
interviewed Goodling, the Civil Division sent an e-mail to Elwood, OLC,
and others expressing concerns that the “current procedures for
selecting/appointing Board members and/or IJs” did not comport with
“merit system principles.”
80 The Civil Division attorney memorialized the interview in contemporaneous
notes and in an e-mail he drafted 2 days later.

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As a result of the Civil Division’s and OLC’s legal analyses of the
manner in which the direct appointment authority had been exercised, in
early January 2007 the Department suspended all hiring of BIA
members and of IJs.
VI.

The Current Process for Hiring Immigration Judges and Board
of Immigration Appeals Members
A.

Immigration Judges

On April 2, 2007, Attorney General Gonzales approved a new
process to fill immigration judge positions. The new process was the
result of consultation among the OAG, ODAG, and EOIR, and was
reviewed and approved by OLC, the Justice Management Division (JMD),
and OARM. The procedures essentially reversed the Sampson-WilliamsGoodling process of direct appointments, and returned most of the
screening, evaluation, and selection of candidates to EOIR.
Under the new process, EOIR’s Office of the Chief Immigration
Judge (OCIJ) reviews applications submitted in response to public
announcements for vacancies, and rates each candidate. The OCIJ
contacts the candidates with the highest ratings to obtain writing
samples and references, and three-member EOIR panels interview all
top-tier candidates. The panels consist of two Deputy Chief Immigration
Judges or Assistant Chief Immigration Judges and a senior EOIR
manager. The panels then create packets for each candidate, including
the application materials, résumé, interview summaries, reference
summaries, and other information. The packets are reviewed by the
EOIR Director (or his designee) and the Chief Immigration Judge, who
together select at least three candidates for a vacancy to recommend for
final consideration.
A second three-member panel, comprised of the EOIR Director (or
his designee), a career SES employee designated by the Deputy Attorney
General, and a non-career member of the SES designated by the Deputy
Attorney General, then interviews as many of the three candidates as
they believe appropriate. This panel recommends one candidate for the
Deputy Attorney General to recommend to the Attorney General for final
approval. Both the Deputy Attorney General and the Attorney General
can request additional candidates if they do not approve the candidates
forwarded to them.
According to Ohlson, who was appointed as Director of EOIR in
September 2007, the new process for hiring immigration judges is now
working efficiently. He said that since the new process was initiated 13
IJs have been hired, and candidates have been selected, but not yet

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appointed, for 21 of the remaining 27 vacancies. He said the delay in the
appointment of these 21 candidates is due to a new requirement that
background investigations be completed before the IJs can be appointed.
Ohlson stated that he has seen no evidence of politicized hiring in the
new process.
B.

Board of Immigration Appeals Members

The revised process for hiring BIA members also requires public
advertisements for these positions. Applications for candidates who meet
the minimum requirements (e.g., law degree, citizenship, 7 years relevant
post-bar legal experience) are reviewed by a three-member panel
consisting of the EOIR Director (or his designee), a career SES employee
designated by the Deputy Attorney General, and a non-career SES
employee designated by the Deputy Attorney General. The panel rates
each applicant, conducts reference checks, and interviews top-tier
candidates. The panel then recommends to the Deputy Attorney General
at least one candidate for each vacancy.
The Deputy Attorney General forwards the name of at least one
candidate for each vacancy to the Attorney General. Both the Deputy
Attorney General and the Attorney General can request additional
candidates if they do not approve the candidates forwarded to them.
According to Ohlson, the new process for hiring BIA members is
also working efficiently. He said that since the new process was initiated
candidates for five of the seven BIA vacancies have been selected, and are
undergoing their background investigations. Ohlson stated that he has
seen no evidence of politicized hiring in the new process.
VII.

Analysis

The evidence detailed above demonstrates that Kyle Sampson, Jan
Williams, and Monica Goodling each violated Department of Justice
policy and federal law by considering political or ideological affiliations in
soliciting and evaluating candidates for IJs, which are Schedule A career
positions, not political appointments. Further, the evidence
demonstrates that their violations were not isolated instances but were
systematic in nature. The evidence demonstrates further that Goodling
violated Department policy and federal law by considering political or
ideological affiliations in selecting candidates for the BIA.
In an e-mail on October 8, 2003, Sampson outlined a new process
for hiring IJs that listed the White House as the sole source for
generating candidates. We found that Sampson’s process, which treated
the appointments like political appointments, was implemented in the

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spring of 2004. Sampson acknowledged that “in the sense that names
were solicited from the . . . White House offices that were involved in
political hiring, [we] were only considering essentially Republican lawyers
for appointment.” Scott Jennings, who worked at the White House Office
of Political Affairs, confirmed that IJ appointments were “treated like
other political appointments,” that the White House’s sources for
candidates were all Republican, and that candidates were screened for
their “political qualifications.” Consequently, Sampson’s process – used
and refined by Williams and then by Goodling – created a pool of
candidates who had been selected because of their political or ideological
affiliations.
As implemented by Sampson, and followed by Williams and
Goodling through the end of 2006, the Attorney General’s Office
controlled the process for selecting IJs, soliciting candidates, and
informing EOIR who was to be hired for each position. Sampson
delegated responsibility for IJ hiring when he did not exercise it himself
to the Department’s White House Liaison (Williams and then Goodling),
whose principal responsibilities involved the screening and hiring of
political appointees.
Although the White House remained the principal source of IJ
candidates throughout this time period, Sampson, Williams, and
Goodling also turned to alternate sources, which also yielded candidates
who had been screened for their political or ideological affiliations.
The fact that EOIR was occasionally allowed to publish vacancy
announcements for IJ vacancies did not change the selection process.
The evidence showed that applicants who applied to these public
announcements were not considered by the OAG – even when endorsed
by EOIR – unless they also were supported by politically affiliated
sources.
One of the results of this tightly controlled selection process among
Sampson, Williams, and Goodling was that it left numerous IJ vacancies
unfilled for long periods of time when they could not find enough
candidates, even when EOIR pleaded for more judges and told the OAG
repeatedly that EOIR’s mission was being compromised by the shortage
of IJs. We found that all of the people who applied in response to
vacancy announcements for IJs were ignored, even when the OAG could
not identify political candidates to fill the open IJ positions.
In the sections that follow, we describe our analysis of the conduct
of Sampson, Williams, Goodling, and others who were involved in the
selection of IJ and BIA candidates.

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Kyle Sampson

We concluded that Sampson violated Department policy and
federal law, and committed misconduct, by considering political or
ideological affiliations when hiring IJs. Sampson knew that, historically,
most IJ hiring was handled by career employees at EOIR. However, he
moved that authority from EOIR and placed it in the OAG. Sampson told
us that he had understood it was appropriate to consider “political
criteria” in selecting IJs. He stated that his understanding was based on
a conversation he had with Ohlson in April 2004 about the Attorney
General’s direct appointment authority for IJs, combined with advice he
claimed to have received from OLC that IJ hiring was not subject to civil
service requirements.
However, as detailed above, Ohlson said he did not tell Sampson
that direct appointments were exempt from federal civil service laws.
Ohlson said he merely noted to Sampson that direct appointments had
been used occasionally in the past to appoint IJs. Nor does the evidence
support Sampson’s claim that OLC advised him that civil service laws did
not apply to the career IJ positions. Neither OLC nor we could find any
record of OLC ever providing such advice to Sampson, and the two
officials he identified as possible sources of the advice – AAGs Goldsmith
and Levin – had no recollection of advising Sampson that civil service
laws did not apply to IJ hiring. To the contrary, the evidence showed
that neither would have offered legal guidance on this point informally.
While it is possible that Sampson mistakenly inferred on his own that
civil service laws did not apply to direct appointments by the Attorney
General, there is no evidence that he was ever so advised by OLC.
Moreover, as described in the document attached to his October 8,
2003, e-mail, Sampson sought to use the Attorney General’s direct
appointment authority to appoint candidates as IJs who had been
recommended by the White House and screened using political criteria
well before those conversations with OLC and Ohlson supposedly
occurred. It is clear from Sampson’s October 8 e-mail that he
contemplated using political considerations in IJ hiring at least 6 months
before his conversation with Ohlson; at least 9 months before Levin (one
of the OLC Assistant Attorney Generals he cited as a possible source of
OLC’s legal advice) became the head of OLC in July 2004; and before any
conversation he had with Goldsmith (the other OLC Assistant Attorney

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General cited by Sampson), who did not begin serving in OLC until
October 3, 2003, just 5 days before Sampson’s e-mail. 81
In sum, we concluded that the evidence did not support Sampson’s
claim that he was advised by OLC that IJ positions were exempt from
federal law governing career civil service positions.
Because the Attorney General’s direct appointment authority to
hire IJs is a departure from the usual Department career hiring
practices, we considered the possibility that Sampson may have been
confused or mistaken about whether civil service laws apply to such
hires. Yet, even if Sampson was confused or mistaken in his
interpretation of the rules that applied to IJ hiring, we do not believe that
would excuse his actions. His actions, which were carried out over a
lengthy period of time and were not based on formal advice from anyone,
systematically violated federal law and Department policy and
constituted misconduct.
B.

Jan Williams

Similarly, Jan Williams violated Department policy and federal law
by considering political or ideological affiliations in the appointment of
IJs. When Williams became the Department’s White House Liaison in
April 2005, Sampson delegated to her much of the responsibility for
identifying and selecting IJ candidates. Most of Williams’s duties
involved finding candidates for political appointments, whether Schedule
C or non-career SES. Williams stated to us that she did not know that
IJs were not political positions. She said that Sampson directed her to
contact the White House to obtain candidates for IJ positions. She said
that “Mr. Sampson is a lawyer and as Chief of Staff to the Attorney
General I assumed that if he had asked me to call someone, it was
appropriate for me to do so.”
Like Sampson, Williams turned to the White House Office of
Political Affairs and the White House Presidential Personnel Office to
obtain candidates for IJ positions. As with Sampson’s candidates,
Williams’s selections indicated that Republican Party affiliation was
critical to the selection process, even more important than experience
with immigration law. When the White House was not able to identify
candidates, Williams turned to other Department political appointees
and to the Federalist Society, while ignoring the candidates supplied by
As noted earlier, Whelan, the Acting AAG at OLC prior to Goldsmith’s
appointment, told us that he (like Goldsmith and Levin) had no recollection of advising
Sampson that civil service laws did not apply to IJ hiring.
81

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EOIR, which was becoming increasingly desperate to fill vacancies as the
immigration case load continued to grow. When one Department
political appointee provided names of potential IJ candidates, Williams
responded “are they like you and me?”
We found that Williams used political criteria to screen candidates
for IJ positions. However, Williams was not an attorney and was
following her supervisor’s guidance. Moreover, the politicized system for
selecting IJ candidates was already in place when she inherited that
responsibility. Under these circumstances, we concluded that she did
not commit misconduct in her selection of IJ candidates.
However, we had concerns about the accuracy of Williams’s
statements to us. Prior to being questioned by us about IJ hiring,
Williams read into the record a prepared statement. In that statement,
she made numerous representations concerning her role in the hiring of
IJs. Many of those representations were inaccurate. Other statements
she made in response to our questions were also inaccurate. After the
interview, Williams sent us an e-mail that was not accurate, as the
evidence detailed below shows.
In her prepared statement, Williams claimed that she had been
“open to candidates from all different sources.” She also claimed that
she would “ask [EOIR Deputy Director] Ohlson to brainstorm with me
about ideas for openings,” and that she “actively considered” applicants
who applied in response to the public announcements. The evidence,
however, showed that Williams was only open to candidates
recommended by the White House or by fellow political appointees. The
evidence also showed that Williams did not “actively consider”
individuals who applied in response to the public announcements for IJ
vacancies. To the contrary, she ignored the packets of applicant résumés
forwarded to her by Ohlson from these announcements. We found no
evidence that any of those applicants were considered in any way unless
they were independently recommended by a source Williams knew to be
Republican. Further, we found no evidence that Williams asked to
“brainstorm” with Ohlson for ideas on candidates for vacancies, and
Ohlson denied that she did. Williams consulted with the White House
Office for Political Affairs, and with the Federalist Society, but not with
EOIR. Under the process implemented by the OAG, EOIR and Ohlson’s
role were confined to processing the presumptive hires who had been
selected by Williams, and to pleading with Williams to consider packets
of applicant résumés because EOIR was in need of additional IJs to
handle a increasing case load.
During our interview of her, Williams elaborated on her claim that
she sought candidates from EOIR: “I remember saying ‘Kevin [Ohlson],

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don’t you have anyone [for an IJ position]?’” and “I remember asking Mr.
Ohlson on several occasions, ‘don’t you have any candidates for this
post[?]’” Again, as detailed above, we found the exact opposite was true.
Williams asked only for the locations of vacancies and then selected the
candidates to fill those vacancies. The evidence showed that Ohlson had
to plead with Williams for candidates, that Williams did not consider the
packets of applicant résumés that Ohlson offered, and that Williams
ignored specific candidates recommended by Ohlson. 82
Williams’s testimony concerning the Nexis search string she
provided to Goodling was also inaccurate. As detailed above, at our
interview we showed Williams a copy of the e-mail she sent to Goodling
on April 10, 2006, in which Williams provided the Internet search string
detailed above. In the text accompanying this search string Williams
wrote: “This is the lexis nexis search string that I use for AG
appointments.” After reviewing the e-mail, Williams told us that she did
not recognize the search string and did not remember sending it to
Goodling. She stated that she did not know what she meant when she
wrote “AG appointments,” but asserted that it did not include IJs. At the
end of the interview, we asked her to review the document again. She
reaffirmed that she did not remember ever using the search string on any
candidate.
In an e-mail Williams sent the day after the interview, she claimed
that she used the search on one candidate for a political position in the
Environment and Natural Resources Division (ENRD) and that she
deleted from the search “words that I thought were not appropriate . . .
taking [out] words like homosexual, religious, and similar social and/or
personal ‘buzz words.’”
Williams’s explanation is not accurate in several respects. Her
claim that she deleted “buzz words” from the single search she
acknowledged conducting is contradicted by evidence we received from
LexisNexis. That evidence shows that Williams conducted 24 additional
searches using the search string, and each time the search included
terms such as “homosexual” or the other “buzz words” identified by
Williams.
As detailed above, starting in July 2005, Ohlson sent a series of e-mails to
Williams stressing the need to fill IJ vacancies because of the “tremendous pressure” of
EOIR’s growing caseload. In a July 22, 2005, e-mail to Williams, Ohlson repeated this
theme, and suggested that Williams authorized a “nation-wide advertisement soliciting
applications for IJ positions.” He reassured her, however, that the process would only
create a pool of applicants, and that Williams would retain her ability to select
candidates to be hired. Even so, Williams did not act on the packets of résumé
applications Ohlson forwarded to her.
82

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Monica Goodling

The evidence demonstrated that Goodling violated Department
policy and federal law, and committed misconduct, by considering
political or ideological affiliations in the appointment of IJs and BIA
members. Goodling admitted in her congressional testimony that she
“took political considerations into account” in IJ and BIA hiring. She
stated that Sampson had told her that IJ hiring was not subject to civil
service laws, and that she “assumed” those laws did not apply to BIA
member hiring. The evidence showed that she used political
considerations in assessing candidates for both IJ and BIA positions.
As detailed above, our investigation found that she solicited and
received résumés for IJ and BIA candidates from the White House, from
Republican members of Congress, the Republican National Lawyers
Association, the Federalist Society, and from individuals with Republican
Party affiliations. We found no evidence that she solicited candidates
from any sources she thought had Democratic affiliations.
Goodling also admitted in her congressional testimony that she
researched Internet sites to learn whether candidates for IJ positions had
made financial contributions to political parties. She admitted further
that she conducted computer searches on such candidates. Evidence
from our investigation revealed that she used the Nexis search string she
had received from Williams to conduct research on IJ candidates. Both
Angela Williamson and the OIPL employee who briefly assisted Goodling
in late 2006 testified to conducting such searches, and the December 5,
2006 e-mail from Goodling to the OIPL employee contains the entire
Williams search string, with a few additional terms added by Goodling.
We also found documents that were obtained through the search string,
which bore markings showing that the search string had been used.
Furthermore, we found that Goodling ran the search string on
candidates who had applied in response to the public announcements
and whose résumés were forwarded in packets by EOIR.
We also found several instances in which candidates for IJ or BIA
positions were asked to fill out the White House PPO form, which sought
information about the candidates’ political party affiliation and about
their activities to support the Bush/Cheney campaigns.
Goodling asserted that she had been advised by Sampson that it
was appropriate to take political factors into account in hiring IJs. Even
assuming Goodling received this advice, her conduct showed that she
knew that political factors could not be considered in hiring for career IJ
positions. First, she told several IJ or BIA candidates that they should
not have been asked to complete the White House PPO form that sought

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information about political affiliation and voting history. Despite that
knowledge, Goodling conducted research on IJ candidates to learn the
same kind of information covered by the PPO forms. Second, Goodling’s
claim that she believed it was appropriate to use political considerations
in selecting IJs is inconsistent with the statements she made to the Civil
Division attorney handling the Gonzalez v. Gonzales litigation. She
stated to the Civil Division attorney that she did not use political
considerations in selecting IJs, a position she reversed in her immunized
testimony before Congress. If Goodling actually believed that political
considerations were appropriate in IJ hiring, and if she had been told by
Sampson that OLC had so advised, it is reasonable to believe that she
would have said so to the Civil Division attorney, rather than making
such inaccurate statements.
Goodling also acknowledged that Sampson never told her that the
civil service laws did not apply to BIA member hiring. Rather, she
testified that she “assumed” that to be the case. Even if that assumption
was initially justified, and we believe it was not, we determined that
Goodling subsequently asked an OLC attorney for an opinion regarding
the legal framework for hiring the Chair and Vice Chair of the BIA. She
was advised that all BIA positions were either Schedule A career or SES
career positions. Yet, despite having received this advice, she followed
the same procedures she used in selecting IJ candidates, and considered
political or ideological affiliations in recommending four individuals for
BIA positions. 83
Finally, we concluded that Goodling engaged in misconduct by
making misrepresentations to the Civil Division attorneys representing
the Department in the Gonzalez v. Gonzales litigation. An attorney from
the Civil Division interviewed Goodling in January 2007 to learn how the
OAG had handled the IJ hiring process. In the interview, Goodling told
the attorney that she did not take political considerations into account in
IJ hiring. The Civil Division attorney’s recollection of this point was
specific and was corroborated by the memoranda he wrote
contemporaneously and circulated within the Department in connection
with deliberations about how to handle the lawsuit.
D.

EOIR Director and Deputy Director

We concluded that neither EOIR Director Rooney nor Deputy
Director Ohlson violated Department policy or federal law, or engaged in
We also note that the political screening Goodling conducted on IJ candidates
(even candidates provided by the White House) caused significant delays in filling IJ
vacancies and significantly contributed to an increasing number of unfilled IJ positions.
83

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misconduct, with respect to hiring IJs or BIA members. 84 First, we found
no evidence that Rooney or Ohlson themselves considered political or
ideological affiliations in recommending candidates for IJ positions.
Furthermore, we credited their assertions that they did not, in fact, know
that the OAG considered political or ideological affiliations in selecting
candidates. Rooney and Ohlson also said they did not know that the
White House Office of Political Affairs and the White House Presidential
Personnel Office were involved in identifying and screening IJ
candidates. 85 We also found that Rooney and Ohlson did not know that
the OAG was screening immigration judge candidates to seek
conservatives or Republicans.
Nonetheless, we believe that Rooney and Ohlson had sufficient
evidence for them to have realized that political or ideological affiliations
played a role in the selection process, and we believe that they should
have brought this issue to the attention of senior leaders at the
Department. They noted to us that the fact that the OAG took control of
the IJ and BIA hiring processes was not, in itself, evidence of
impropriety, because the Attorney General had the statutory and
regulatory authority to make direct appointments for those positions.
Moreover, they noted that the quality of the candidates whose résumés
reflected Republican or conservative ideological affiliations was not so
deficient as to necessarily raise their suspicions. But we believe that
several factors – including the high number of candidates whose résumés
reflected Republican credentials, the sponsorship of candidates by
Republican Members of Congress, the knowledge that the Department’s
White House Liaison was involved in selecting and conducting research
on the candidates, and EOIR’s inability to get the OAG to consider any
applicants identified through public announcements – should have put
Rooney and Ohlson on notice of concerns that political or ideological
affiliation influenced the selection of candidates for positions that both
knew were career positions subject to civil service protections. For
example, the episode in which a Senator chose the candidate for a
specific IJ position and later was allowed to pick a second candidate
when the first withdrew should have raised concerns that career IJ
84 OPR Counsel H. Marshall Jarrett recused himself from the evaluation of EOIR
Director Rooney’s and Deputy Director Ohlson’s conduct.

The evidence showed a few instances in which EOIR was aware that a
candidate forwarded by the OAG had been recommended by the White House, but the
information provided to EOIR did not indicate that the White House Office of Political
Affairs or the White House Presidential Personnel Office had been involved. Both
Rooney and Ohlson told us that they thought the candidates supported by the White
House had been recommended based on personal connections rather than political
affiliations.
85

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positions were being treated like political U.S. Attorney and Article III
federal judge positions, and that political affiliation was potentially
influencing the appointment of career Department attorneys.
To their credit Rooney and Ohlson made repeated efforts to
persuade the OAG to allow them to post advertisements to attract quality
candidates for IJ positions, to persuade the OAG to consider candidates
who responded to the advertisements, and to urge the OAG to select
more IJs to address the growing case load. We also found evidence that
on at least one occasion Ohlson brought to the attention of an ODAG
official the problems created by the increasing IJ vacancies when he was
not able to get timely action on IJ candidates from Goodling. However,
although Rooney and Ohlson took some actions to address the
increasing number of IJ vacancies, we concluded that they had enough
information about issues of concern in the selection process that they
should have brought these issues to the attention of other senior
Department officials, such as to senior career officials in the ODAG, or to
the Office of the Inspector General or the Office of Professional
Responsibility.

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CHAPTER SEVEN
OTHER ISSUES
In this section of the report, we discuss whether EOUSA Deputy
Director John Nowacki provided senior department officials with
inaccurate information about whether Goodling used political or
ideological affiliations to screen candidates for EOUSA detail positions,
and whether Goodling discriminated against a detailee candidate on the
basis of her alleged sexual orientation.
I.

John Nowacki

Nowacki graduated from Evangel College in 1994 and from Regent
University Law School in 1998. He worked in the Department’s Office of
Public Affairs from November 2003 to March 2006, and then served a 6month detail as a Special AUSA in the Eastern District of Virginia. In
August 2006, he transferred to EOUSA as a Schedule C, political
appointee as an EOUSA Deputy Director.
Nowacki told us that he was contemporaneously aware that
Goodling used political affiliation to screen EOUSA detail candidates.
Nowacki cited the applicant for an EOUSA counterterrorism detail
(Candidate 1, described above) as an example of how Goodling
discriminated against Democrats. Nowacki also stated that EOUSA
Associate Counsel Voris told him that Goodling rejected extending an
EOUSA detail because the detailee was a Democrat. Nowacki stated “in a
number of cases Monica Goodling did take political considerations into
account in detailee hiring.”
We found that Nowacki concealed from Department officials his
knowledge that Goodling used political affiliation when assessing
candidates for EOUSA details after the Department received an inquiry
from a reporter regarding this issue. On March 29, 2007, Ted Goldman,
a reporter for the Washington, D.C. legal weekly publication Legal Times,
sent an e-mail to Tasia Scolinos and Brian Roehrkasse, then Director
and Deputy Director of OPA, and Nowacki seeking comment on an
allegation that Goodling had used politics to assess candidates for
EOUSA detail positions. Goldman’s e-mail read in part:
Several longtime ausa’s are telling me that the detaillee [sic]
program at the eousa has become far more politicized than
ever before. here’s the quote i’m using. if you’d like to give
me a response, i’d very much appreciate it:

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“Historically, there are assistants from all over the country,
EOUSA picks up their salaries, it’s been going on a long
time, it’s a big deal,” says another assistant U.S. Attorney.
“She [monica goodling] has taken over the vetting of
detaillees and did it in a very political way. It’s no longer the
recommendation of assistant U.S. Attorneys or merit, but
‘Are you active in politics, which party are you active for,’ it’s
very blatant, and not very subtle. If you’re not the right
stripe, you’re not coming to Washington.”
Shortly after receiving this e-mail, Nowacki forwarded it to Acting
EOUSA Director Steven Parent. In his e-mail, Nowacki commented,
“Steve – Let's talk about this tomorrow. It’s crap.” Similarly, Nowacki
sent an e-mail to Scolinos and Roehrkasse regarding Goldman’s query
and commented, “This is, to the best of my knowledge, largely crap. Let’s
discuss tomorrow.” When we asked him about these e-mails, Nowacki
first stated that he did not recall what he meant when he described the
allegation as “crap.” Nowacki later stated that when he used the word
“crap” he was being dismissive of the allegations.
During our interview of Nowacki, however, he acknowledged that
the Legal Times’ allegations were accurate, because Goodling was taking
political affiliation into account in making decisions about detailees.
We found that on March 30, 2007, the day after the reporter’s
inquiry, Parent, Nowacki, and Scolinos exchanged drafts of a statement
to send Goldman in response to his query. Several senior officials in the
OAG were also copied on some of the e-mails containing draft responses.
The sequence of e-mails and their recipients showed that at 11:26 a.m.
on March 30, Nowacki e-mailed Scolinos a draft reply to Goldman that
stated in part:
The process to select candidates has nothing to do with
party affiliation. To suggest that those career employees who
have been selected to serve details to EOUSA is based on
anything but professional experience unfairly detracts from
those career employees and is simply wrong.
Nowacki acknowledged in his interview that he drafted this
statement, and said he thought it was edited by Parent. Nowacki argued
the statement in the draft that “[t]he process to select candidates has
nothing to do with party affiliation” was accurate at the time it was
made, because Goodling was no longer with the Department and the
statement was written in the present tense. Nowacki claimed that he
thought he was drafting a description of the current practice. When
asked about the last sentence of the document, Nowacki stated that he

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thought that sentence also was accurate because he had no evidence
that Goodling used political affiliation to select candidates; he only had
evidence that Goodling used political affiliation to veto candidates.
Several minutes after sending the first e-mail on March 30, at
11:33 a.m. Nowacki e-mailed Scolinos an alternative draft response to be
issued in Parent’s name that stated in part:
In my tenure with EOUSA, I am not aware of any attempt to
screen candidates on the basis of party affiliation by anyone,
including Monica Goodling; that issue simply has never
come up in any interviews in which I have participated. To
suggest that those career employees who have been selected
to serve details to EOUSA is based on anything but
professional experience unfairly detracts from those career
employees and is simply wrong.
At 12:16 p.m., Scolinos e-mailed Parent a draft response to the
Legal Times’ allegations containing the language quoted above from
Nowacki’s 11:33 a.m. e-mail. The e-mail was copied to OAG Deputy
Chief of Staff Courtney Elwood, Counselor to the Attorney General
Matthew Friedrich, Acting OAG Chief of Staff Chuck Rosenberg,
Roehrkasse, and Nowacki. Scolinos stated in the e-mail that the
quotation would go to the Legal Times in Parent’s name, and that she
wanted “to confirm that you are comfortable with this and that this is
accurate.”
Nowacki told us he did not tell any of the recipients, including the
three senior OAG officials, that he had personal knowledge that Goodling
did in fact use political affiliation to assess EOUSA detailee candidates.
Ultimately, the Department did not respond to the Legal Times email inquiry that Goodling had politicized the hiring of EOUSA detailees.
Scolinos told us that OPA may not have responded because both she and
Rosenberg were concerned that they did not know all the facts.
Similarly, Parent said he did not want the statement to be attributed to
him since he was not sure of the facts.
However, we concluded that Nowacki’s actions in suggesting these
responses, which he knew to be inaccurate, were improper and
constituted misconduct. Nowacki acknowledged in our investigation that
he knew at the time he wrote this statement that Goodling had used
political affiliation to screen at least some EOUSA detail candidates. He
reasoned that the draft statement was true because it would have been
attributed to Parent, who did not know that Goodling used political
affiliation to evaluate EOUSA detailee candidates. Nowacki did not

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disclose his knowledge to EOUSA, OPA, or the OAG. Instead, he told his
supervisor and OPA senior managers that the allegations that Goodling
had politicized the detailee hiring process were “crap,” and he drafted a
response for public release that contained inaccurate statements.
Nowacki also failed to inform EOUSA, OPA, and the OAG that they were
considering issuing a public statement that was inaccurate.
II.

Goodling’s Discrimination Against a Detailee on the Basis of
Sexual Orientation

In this section, we examine whether Goodling discriminated
against an AUSA detailee on the basis of her alleged sexual orientation. 86
In October 2005, an AUSA was detailed to EOUSA to work on
Native American issues. She had been an AUSA since 2002, and had
previously been a Republican elected office holder in her home state. As
discussed below, we found evidence that, in part on the basis of this
AUSA’s alleged sexual orientation, Goodling prevented an extension of
the AUSA’s detail in EOUSA, attempted to prevent her from obtaining a
detail to the Office of Sex Offender Sentencing, Monitoring,
Apprehending, Registering, and Tracking (SMART) in the Office of Justice
Programs (OJP), and attempted to prevent her from obtaining a position
with the Office on Violence Against Women (OVW).
A.

EOUSA Detail

In the summer of 2006, the AUSA’s supervisor at EOUSA, Dan
Villegas, offered her an extension of her EOUSA detail, which she
accepted. Later, in October 2006, Villegas and the U.S. Attorney for
whom she had worked told the AUSA that her EOUSA detail would not
be extended. Villegas told the AUSA that EOUSA Deputy Director
Nowacki had been instructed by Goodling not to extend the detail. The
AUSA said that Villegas also told her this was a political decision and
was not based on her performance. In fact, the AUSA’s 2006
performance appraisal, which covered her detail at EOUSA, rated her
performance as “Outstanding” on all performance elements, the highest
possible appraisal.
Villegas told us that the AUSA had done a great job and he wanted
to extend her detail. He said he asked Deputy Director Nowacki to
We learned of this allegation during the course of our investigation of
Goodling’s actions, and therefore address it in this report. We did not, however,
conduct a comprehensive examination of whether Goodling discriminated on the basis
of sexual orientation against others.
86

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extend the detail, but Nowacki said he would have to check. Villegas did
not specify with whom Nowacki had to consult.
Nowacki told us that he asked Goodling whether the AUSA’s detail
should be extended, and Gooding said that it should be terminated.
Nowacki said that when he raised the issue of the AUSA’s detail
extension with Gooding, he told Goodling that he did not have a problem
extending it because “everyone says she does a great job, she’s well
regarded.” Nowacki said that Goodling told him that EOUSA details
should only be for 1 year. Nowacki said that Goodling then brought up
the issue of the AUSA’s “relationship in progress” with her U.S. Attorney
“and made it clear just that she thought that was inappropriate.”
Nowacki said that Goodling’s decision was based, at least in part on the
allegations that the detailee and her (female) U.S. Attorney were involved
in a sexual relationship. Nowacki said he informed Villegas that the
detail would not be extended because of a new EOUSA policy that strictly
limited details to 1 year.
Villegas told us he did not believe Nowacki’s explanation for the
termination of the detail because Villegas was aware of only two people
whose details ended after 1 year – this detailee and another detailee from
the same USAO.
EOUSA Associate Counsel Voris told us she also supported the
extension of the AUSA’s detail, but that Goodling opposed it. Voris said
that the AUSA was one of two AUSAs in the country with credibility with
domestic violence groups, which was a significant issue in the AUSA’s
work in EOUSA on Native American matters. Voris said she told
Goodling and Nowacki that the AUSA was doing a good job. Voris said
she told Nowacki that she disagreed with the denial of the detail
extension, but Nowacki told her that his hands were tied.
Several witnesses told us that Goodling’s opposition to the
extension of the detail was based at least in part on the AUSA’s alleged
sexual orientation. Voris said that when she told Goodling she
supported the detail extension, Goodling responded that Voris did not
know the AUSA as well as she thought she did. Voris said that Goodling
then told her that the detailee had a homosexual relationship with the
U.S. Attorney in the AUSA’s USAO and that the two took trips together at
government expense.
Voris told us she believes that the AUSA’s alleged sexual
orientation was a factor in Goodling’s decision not to extend the detail,
but did not know if it was the only reason. Voris said that Goodling’s
decision may also have been due to an allegation that the AUSA and U.S.

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Attorney took government trips together and because the AUSA allegedly
received large bonuses.
EOUSA Director Battle also told us that Goodling opposed the
detail extension because Goodling had problems with the AUSA’s alleged
sexual orientation.
EOUSA Deputy Director Nowacki told us that Goodling had told
him that the AUSA and her U.S. Attorney were involved in a relationship,
and that the staff at the USAO resented the relationship. Nowacki said
that Goodling told him this because Nowacki had informed Goodling that
the U.S. Attorney was upset with him for refusing to extend the detail.
Nowacki stated that he came away from his meeting with Goodling with
the sense that her personal views on homosexuality probably played a
role in Goodling’s decision not to extend the detailee’s detail.
John Kelly, the EOUSA Chief of Staff and Deputy Director, told us
he heard rumors about the alleged relationship between the AUSA and
the U.S. Attorney before the detailee had arrived at EOUSA for her detail.
He said he told both Battle and Goodling about the rumors, which
included both the sexual relationship and allegations that the U.S.
Attorney gave the AUSA large bonuses. According to Kelly, Goodling
reacted to this information by putting her head in her hands and asking
why no one had told her about this information before the AUSA was
detailed to EOUSA.
The AUSA told us that the rumors were false and that she was not
involved in a sexual relationship with her U.S. Attorney. Similarly, the
U.S. Attorney denied that she and the AUSA were involved in a sexual
relationship.
B.

SMART Detail

After the AUSA learned in October 2006 that her EOUSA detail
would not be extended, she applied for a detail with the Sex Offender
Sentencing, Monitoring, Apprehending, Registering, and Tracking
(SMART) Office in OJP. 87 According to the AUSA, on November 1, 2006,
she interviewed with OJP Chief of Staff Nick Tzitzon, who offered her the
detail position at the end of her interview. However, she said she did not
hear from Tzitzon for several months.

The SMART Office’s mission is to prevent convicted sex offenders from
repeating their crimes. The SMART Office establishes and maintains the standards for
the Sex Offender Registration and Notification Program and also oversees grant
programs regarding sex offender registration and notification.
87

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On December 18, 2006, William Mercer, who at the time was the
Principal Associate Deputy Attorney General, sent an e-mail to OJP
Assistant Attorney General Regina Schofield asking when the AUSA was
to assume her duties in the SMART Office. 88 Schofield replied that
“Monica called Nick [Tzitzon] and expressed concerns abt the detail but
never countered her references or offered alternatives for immediate
staffing concerns. After giving her a month, I told Nick to release the
paperwork on [the detailee] last week.”
Schofield told us she told Mercer that she wanted to hire the
detailee for the SMART Office. According to Schofield, however, Goodling
had called Tzitzon and told him that she did not want OJP to hire the
detailee, but Goodling did not explain why. Tzitzon confirmed to us that
Goodling called him and asked that OJP put the detail on hold and
refused to give Tzitzon any reasons for her request, saying that she could
not tell him the reasons.
Tzitzon’s account of his conversation with Goodling was confirmed
by former OJP Deputy AAG Cybele Daley. Daley told us that she was in
Tzitzon’s office either during his telephone conversation with Goodling or
shortly thereafter. She stated that Tzitzon told her that Goodling had
requested that OJP not accept the AUSA as a detailee, and that she did
not provide reasons for that request.
As a result of Goodling’s request, Schofield called several people to
try to find out Goodling’s reasons. Schofield told us that she learned
from discussions with several people, although she did not recall who,
that it was alleged that the AUSA had a homosexual affair with her
supervisor, a U.S. Attorney. Schofield told us that allegation was not
relevant to her assessment of the AUSA’s qualifications, and she offered
the AUSA the detail despite Goodling’s objections. On February 1, 2007,
the AUSA was detailed to the SMART Office, despite Goodling’s request
that the AUSA not be given the detail.
Schofield said the AUSA was doing a good job at the SMART Office,
and would renew her SMART detail. The AUSA told us she was not
aware that Goodling had opposed her detail to the SMART Office.

Mercer told us that he had encountered the AUSA at a social function, and
she discussed with him the fact that she had not heard back from OJP regarding the
SMART detail. Mercer said that because he knew that the AUSA’s EOUSA detail was
ending, and because he wanted her to be detailed to the SMART Office, he sent an email to Schofield asking about the AUSA’s status. In his e-mail response to Schofield,
Mercer indicated he was pleased that OJP would offer the AUSA the detail.
88

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Detail to Office of Violence Against Women

We also learned that in 2006 Goodling had tried to prevent the
AUSA from obtaining a detail to the Office of Violence Against Women
(OVW) because of Goodling’s belief about the AUSA’s sexual orientation.
At the time, Mary Beth Buchanan was the Acting Director of OVW in
addition to being the U.S. Attorney for the Western District of
Pennsylvania. Buchanan stated that in approximately December 2006,
when the AUSA’s detail at EOUSA was ending, the AUSA’s U.S. Attorney
asked Buchanan to consider hiring the detailee at the OVW.
Buchanan said she called EOUSA Director Battle to find out why
the AUSA’s detail was not going to be extended. Battle told her that she
should talk to Goodling. Buchanan said that Goodling told her that the
AUSA and the U.S. Attorney were involved in a relationship, and that it
would not be appropriate for the Department to do anything to further
that relationship, such as employing them in the same geographic area.
According to Buchanan, at that time the U.S. Attorney was trying to find
a position in the Washington, D.C. area. Buchanan said she understood
that Goodling was telling her not to select the AUSA because it would
look like the Department was sanctioning the homosexual relationship.
However, Buchanan said that the AUSA had never actually applied for a
detailee position in the OVW. 89
D.

Analysis

We concluded that Goodling refused to extend the AUSA’s EOUSA
detail, and tried to block her SMART detail and potential detail with
OVW, because of Goodling’s perception of the AUSA’s sexual orientation.
The AUSA had done well in the detailee position in EOUSA, and was well
qualified for the SMART detail, yet Goodling prevented the extension of
her EOUSA detail and sought to prevent her from obtaining other details.
Several witnesses provided credible testimony that one of the reasons for
Goodling’s actions was the alleged sexual orientation of the AUSA. 90

Although Buchanan stated that the AUSA never applied for an OVW detail,
we found a December 9, 2006, e-mail from the AUSA to Buchanan in which the AUSA
told Buchanan that her EOUSA detail was ending, and that she was available to assist
Buchanan at the OVW. The AUSA attached her résumé to that e-mail. There is no
evidence that Buchanan responded to the AUSA’s overture.
89

90 As noted above, several witnesses told us that Goodling may have opposed
the AUSA’s EOUSA detail extension, or her potential details to the SMART Office or to
the OVW, in part because of the claim that the AUSA had benefited financially from the
alleged relationship with her supervisor, the U.S. Attorney, by allegedly improperly
receiving large bonuses and taking trips at government expense with the U.S. Attorney.
Even if these allegations were true – and we reached no such conclusion – the other
(Cont’d.)

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Both 28 C.F.R. Section 42.1(a) and standard OARM job
announcements state that Department policy prohibits discrimination
based on sexual orientation. We concluded that Goodling’s actions
violated Department policy and federal law, and constituted
misconduct. 91
In addition, we believe Battle should have raised concerns about
Goodling’s actions. In this instance, Battle knew that Goodling had
considered sexual orientation as a reason to deny the AUSA an extension
of her EOUSA detail. As discussed above, Battle also told us that he
knew that Goodling was discriminating against a candidate for a career
SES position in part on the basis of his political affiliation (EOUSA
Deputy Director Candidate #2), and had discriminated against a
candidate for an EOUSA detail (Candidate #1) because of his wife’s
political affiliation. We believe that Battle, as Director of EOUSA, should
have raised concerns about Goodling’s actions with Goodling’s
supervisor, Kyle Sampson, the OIG, or OPR.
Finally, we believe that OJP senior management, which resisted
Goodling’s request to deny the AUSA a detail to the SMART Office,
deserves credit. OJP AAG Schofield found the allegations about the
AUSA to be irrelevant, and to her credit, even in the face of opposition by
an official in the OAG, offered the detail to the AUSA.

evidence described above indicates that Goodling’s actions were motivated at least in
part by the AUSA’s alleged sexual orientation. Moreover, even if Goodling’s acts were
based solely on the financial allegations, her actions would be wholly inappropriate.
The allegations regarding the AUSA’s financial benefits were never formally investigated
or even referred for investigation. Goodling’s actions, therefore, were based solely on
unproven rumors.
The Civil Service Reform Act does not specifically reference sexual orientation.
However, it is a prohibited personnel practice to “discriminate for or against any
employee or applicant for employment on the basis of conduct which does not adversely
affect the performance of the employee or applicant . . .” 5 U.S.C. 2302(b)(10). The
Office of Personnel Management has “interpreted this statute [2302(b)(10)] to prohibit
discrimination based upon sexual orientation.” See
http://www.opm.gov/er/address2/Guide04.asp.
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CHAPTER EIGHT
CONCLUSIONS AND RECOMMENDATIONS
This investigation examined allegations that Monica Goodling, who
worked in the Office of the Attorney General (OAG) as the Department’s
White House Liaison, inappropriately considered political and ideological
affiliations in the selection and hiring of certain Assistant United States
Attorneys (AUSA) and career attorneys in the Department, and in
approving details of career attorneys to Department offices. We also
investigated allegations that former Chief of Staff to the Attorney General
Kyle Sampson, Goodling, and Goodling’s predecessor as the
Department’s White House Liaison, Jan Williams, inappropriately
considered political and ideological affiliations in selecting immigration
judges (IJs) and members of the Board of Immigration Appeals (BIA), all
of which are career positions.
As the Department’s White House Liaison, Goodling regularly
screened candidates for political positions at the Department, and most
of the persons Goodling screened or interviewed had applied for political
positions. However, Goodling also approved the hiring of career AUSAs
by interim U.S. Attorneys. She also approved the selection of career
attorneys applying for details in several Department offices. In addition,
she interviewed many candidates who were interested in obtaining any
position in the Department, whether career or political, and she
sometimes sought to place these individuals in career positions.
It is not improper to consider political or ideological affiliations in
making hiring decisions for political positions. However, both
Department policy and federal law prohibit discrimination in hiring for
career positions on the basis of political affiliations.
Our investigation found that Goodling improperly subjected
candidates for certain career positions to the same politically based
evaluation she used on candidates for political positions, in violation of
federal law and Department policy.
With regard to requests from interim U.S. Attorneys to hire AUSAs,
we determined that in two instances Goodling considered the candidate’s
political or ideological affiliations when she assessed the request. For
example, in one instance when the interim U.S. Attorney in the District
of Columbia sought approval from Goodling to hire an AUSA for a vacant
position, Goodling responded that the candidate gave her pause because
judging from his résumé he appeared to be a “liberal Democrat.”
Goodling also stated that because Republicans had lost control of
Congress after the November 2006 elections, she expected that

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Republican congressional staff might be interested in applying for AUSA
positions in Washington. Eventually, after the interim U.S. Attorney
complained to Sampson about Goodling’s response to his request, the
U.S. Attorney was allowed to hire the AUSA.
The evidence also showed that Goodling considered political or
ideological affiliations when recommending and selecting candidates for
other permanent career positions, including a career SES position in the
Executive Office for U.S. Attorneys (EOUSA) and AUSA positions. These
actions violated federal law and Department policy, and also constituted
misconduct.
In addition, we determined that Goodling often used political or
ideological affiliations to select or reject career attorney candidates for
temporary details to Department offices, including positions in EOUSA
that had not been filled by political appointees. Goodling’s use of
political considerations in connection with these details was particularly
damaging to the Department because it resulted in high-quality
candidates for important details being rejected in favor of less-qualified
candidates. For example, an experienced career terrorism prosecutor
was rejected by Goodling for a detail to EOUSA to work on
counterterrorism issues because of his wife’s political affiliations.
Instead, EOUSA had to select a much more junior attorney who lacked
any experience in counterterrorism issues and who EOUSA officials
believed was not qualified for the position.
We also determined that in several instances Goodling and one of
her predecessors as the Department’s White House Liaison, Susan
Richmond, opposed on the basis of political affiliation the extensions of
details for career Department attorneys working in the Office of the
Deputy Attorney General, even though these candidates had the full
support of the Deputy Attorney General and his staff.
While temporary detail assignments are covered by the civil service
restriction on considering political affiliations in hiring, there is an
exception for positions which are of a “confidential, policy-determining,
policy-making, or policy-advocating character.” We believe that not all of
the detailee positions at issue in this report were covered by this
exception. For example, we believe that none of the EOUSA positions for
which Goodling considered the detailee’s political affiliations were
covered by this exemption from the civil service laws. Therefore we
believe it was improper, and violated the law and Department policy, for
Goodling to use political or ideological affiliations in selecting or rejecting
detailees to these positions.

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The evidence showed that the most systematic use of political or
ideological affiliations in screening candidates for career positions
occurred in the selection of IJs, who work in the Department’s Executive
Office for Immigration Review (EOIR). In the spring of 2004, Sampson
created and implemented a new process for the selection of IJs. The new
process ensured that all candidates for these positions were selected by
the Attorney General’s staff. Under this process, staff in the OAG would
identify and select candidates for these positions using the Attorney
General’s direct appointment authority. Sampson implemented the new
process and it followed by the Department’s White House Liaisons,
Williams and then Goodling.
Sampson told us that he implemented the new process because he
believed that IJs were political appointees and therefore not subject to
civil service rules. Sampson said that his understanding of the nature of
these positions was based on a conversation with Kevin Ohlson, the
Deputy Director of EOIR, as well as advice Sampson said he received
from the Department’s Office of Legal Counsel (OLC). However, Ohlson
told us he knew IJs were career positions and that he did not state or
suggest to Sampson that these positions were exempt from civil service
rules. The evidence also indicated that OLC did not advise Sampson that
the Attorney General could appoint IJs without regard to the civil service
laws governing the hiring of career Department employees.
We determined that, under the process implemented by Sampson
and followed by Williams and Goodling, the OAG solicited candidates for
IJ positions and informed EOIR who was to be hired for each position.
The principal source for such candidates was the White House, although
other Republican sources provided politically acceptable candidates to
Sampson, Williams, and Goodling. All three of these officials
inappropriately considered political or ideological affiliations in
evaluating and selecting candidates for IJ positions. For example, we
found that Goodling screened the candidates using a variety of
techniques for determining their political affiliations, including
researching the candidates’ political contributions and voter registration
records, using an Internet search string with political terms, and asking
the candidates questions regarding their political affiliations during
interviews.
In sum, the evidence showed that Sampson, Williams, and
Goodling violated federal law and Department policy, and Sampson and
Goodling committed misconduct, by considering political and ideological
affiliations in soliciting and selecting IJs, which are career positions
protected by the civil service laws.

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Not only did this process violate the law and Department policy, it
also caused significant delays in appointing IJs. These delays increased
the burden on the immigration courts, which already were experiencing
an increased workload and a high vacancy rate. EOIR Deputy Director
Ohlson repeatedly requested candidate names to address the growing
number of vacancies, with little success. As a result of the delay in
providing candidates, the Department was unable to timely fill the large
numbers of vacant IJ positions.
We also concluded that Goodling committed misconduct when she
provided inaccurate information to a Civil Division attorney who was
defending a lawsuit brought by an unsuccessful IJ candidate. Goodling
told the attorney that she did not take political factors into consideration
in connection with IJ hiring, which was not accurate.
In addition, we concluded that Williams provided inaccurate
information to us concerning her Internet research activities.
Because Goodling, Sampson, and Williams have resigned from the
Department, they are no longer subject to discipline by the Department
for their actions described in this report. Nevertheless, we recommend
that the Department consider the findings in this report should they
apply in the future for another position with the Department.
In addition, we concluded that EOUSA Deputy Director John
Nowacki committed misconduct by drafting a proposed Department
response to a media inquiry which he knew was inaccurate. Although
Nowacki knew that Goodling had used political and ideological
affiliations to assess career attorney candidates for EOUSA detail
positions, he drafted a media statement in which the Department would
have denied the allegations. Nowacki is still employed by the
Department. Therefore, we recommend that the Department consider
appropriate discipline for him based upon the evidence in this report.
Finally, as discussed in this report, after the allegations about
politicized hiring arose, the Department changed various policies and
practices. In 2007, in response to the allegations about Goodling’s
inappropriate consideration of political affiliations on requests by interim
U.S. Attorneys to hire AUSAs, former Attorney General Gonzales directed
that such waiver requests be reviewed by EOUSA, not political
appointees in senior Department offices. In addition, EOUSA has
recently ended the practice of reviewing the résumés of the waiver
candidates and instead assesses those requests solely based on the
budgetary status of the USAO as well as the status of the new U.S.
Attorney’s nomination. We believe these changes are appropriate and

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can help prevent a recurrence of the improper use of political or
ideological affiliations to evaluate waiver requests for career AUSAs.
With regard to immigration judges, as a result of the civil litigation
over the unsuccessful candidacy of an immigration judge applicant, in
April 2007, former Attorney General Gonzales approved a new process to
fill immigration judge positions. The new process returned the
responsibility for evaluating and selecting immigration judges to EOIR.
According to EOIR officials, the process is working more effectively now
and political considerations are not being used in the selection of
candidates.
However, we believe the Department should consider additional
changes. We recommend that the Department clarify its policies
regarding the use of political or ideological affiliations to select career
attorney candidates for temporary details within the Department. As
discussed in this report, it is unclear which detailee positions are
excluded from the scope of civil service law, and the Department’s
guidance on this issue is inconsistent. We recommend that the
Department clarify the circumstances under which political
considerations may and may not be considered when assessing career
candidates for details to various Department positions.
In addition, in our June 24, 2008, report on the Department’s
Honors Program and Summer Law Intern Program, we made other
recommendations to address allegations of politicized hiring in the
Department. 92 Those recommendations included revising the
Department of Justice Human Resource Order to emphasize that the
process for hiring career attorneys must be merit based and to specify
that ideological considerations cannot be used as proxies to discriminate
on the basis of political affiliations. We also recommended that the
briefing and training materials for Department political appointees
should stress that candidates for career positions must be evaluated
based on their merits and that ideological affiliations may not be used as
a screening device for discriminating on the basis of political affiliations.
When the prior report on Honors Program hiring was issued,
Attorney General Mukasey announced that the Department intended to
implement all of these recommendations. These recommendations also
apply to the improper conduct described in this report.

92 See An Investigation of Allegations of Politicized Hiring in the Department of
Justice Honors Program and Summer Law Intern Program (June 24, 2008).

139

We believe that implementation of our recommendations can help
prevent a recurrence of the violations of federal law and Department
policy, and the misconduct, that we describe in this report.

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