Friday, August 1, 2008

Out of Town

No posts for a few days while on personal travel.

Some Seperation of Powers Issues

Yesterday, the US District Court ruled that Congress could haul executive branch staff before it by using subpoenas.

A few days ago, the executive branch prosecuted a US Senator for violating what are arguably Congressional housekeeping rules on financial disclosures.

Meanwhile, Congress continues to squeeze the courts by continuing to keep judicial pay substanard compared to what law firms and even non-profits are paying lawyers of comparable seniority and skill.

The Courts as showing an increasing willingness to stray into what was previously thought to be "political issues" for Congress and the executive branch to decide.

Just a health clash of the branches of government using constitutionally provided checks and balances to exercise oversight? Or does this represent a disturbing trend whereby the branches are slipping traditional restraints and asserting their perogatives beyond traditional, self imposed boundaries?

Something to consider.

Thursday, July 31, 2008

US Senator Ted Stevens Indicted

Our hometown gazette, the Washington Post, has the details:

Alaska's Ted Stevens, the longest-serving Republican senator in U.S. history, was indicted yesterday on seven charges of making false statements about more than $250,000 that corporate executives doled out to overhaul his Anchorage area house.

The Post doesn't quite get it right when it labels the charges as "corruption," which implies that Stevens is charged with providing something of value for the gifts he received. It appears that at this point the charges focus on issues involving the disclosure of gifts and whether Stevens was fully truthful.

Regardless, most in the media are asking the following:

What does this mean for Senator Stevens's reelection?

What are the broader ramifications for the Republicans' efforts to make some headway given the Democrats' problems in running the 110th Congress?

What does this mean for chances that Congress will allow more domestic drilling, a cause Senator Stevens passionately championed?

These are the questions that are being most asked in the media, but I think they are the wrong ones.

The REAL question is what this means for the Senate as an instituion. The only one taking that perspective is The Politico's David Rogers:

Like him or not, Sen. Ted Stevens is an institution, and the news of his indictment is another blow to the Senate, not just because of the man but also because of the nature of the alleged crime.

Wednesday, July 30, 2008

The Mess at Justice - What Have We Learned?

On Monday, the Department of Justice's Inspector General (IG) issued a lengthy report detailing the misconduct of a small group of DOJ political appointees regarding how the Department's career attorneys, immigration judges and other civil servants in DoJ were hired, promoted, given opportunities for career advancement, etc.

In short, the IG found that a small group at the Department, most prominently Monica Goodling, used improper considerations when making such decisions, such as political affiliation and, in one case, sexual orientation. Using such considerations are against Departmental policy and, according to the report, federal law (although, to be fair, the report's reasoning here can be questioned).

Goodling had testified before Congress last year that she had "gone too far in asking political questions of applicants for career positions, and I may have taken inappropriate political considerations into account on some occasions. And I regret those mistakes" so this is not really new information, although we have a much more detailed picture of type and scope of the misconduct involved.

The IG's report can be accessed here.

A summary from the home town gazette, the Washington Post, is here.

Some perspective from a former, experienced Justice Department official is here:
There was an unbroken rule, embodied in law, regulation and department policy, that no political questions would be asked of those who wanted to serve in career -- as opposed to political -- positions in the department.
For the most part, the Post's editorial gets it right:
According to a report released yesterday by the Justice Department's Office of the Inspector General and Office of Professional Responsibility, the Justice Department of Ms. Goodling and Mr. Sampson was one in which connections and politics mattered more than competence and professionalism. To these callow and undeserving public servants, this may have seemed the very definition of how Washington works. But such considerations should have no place in the hiring of career lawyers who are entrusted to carry out nonpolitical investigations and prosecutions.
The Post, however, misses the point at the end of its editorial when it focuses on punishing the two people cited in the report for the bulk of the wrongdoing:
It is exceedingly frustrating that both could escape the punishment they deserve because they have left the department; Justice no longer has the standing to take legal action against them, but individuals directly harmed by their breaches could potentially file suit... Ms. Goodling testified before the House Judiciary Committee last year under a grant of immunity; the immunity, however, is pierced if the testimony is not truthful. The inspector general's report notes that new evidence seems to contradict several points asserted by Ms. Goodling during that testimony. These discrepancies should be investigated.
Investigating the two persons involved, Monica Goodling and Kyle Sampson, and forcing them to spend untold amounts in attorneys' fees might make us feel better, but it misses, I think the real heart of the issue, particularly in Ms. Goodling's case. For, in her case especially, there is an important lesson to be learned here.

Goodling's background is detailed in the IG's report at some length:
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 short, she was hired by the Department of Justice, despite never having practiced a day of law.

She worked her way up through various posts to reach the lofty position of "Counsel to the Attorney General," which appears to be a fairly nebulous role. Among her duties:
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 short, for someone who had so thin a resume prior the joining DOJ, she wound up exerting a lot of high level influence on the Department via the personnel process.

The better question than "how should we punish her?" is "how did she get there and what can we learn?"

Some are trying to make this story out to be about administration corruption (TV Law Professor Jonathon Turley on Keith Olberman: "That would be rather pathetic, wouldn‘t it, if Monica Goodling is the only one that heads off to club Fed").

But if that were the case, wouldn't we have more than a few people being accused of this conduct? If this behavior comes from the top, we should see a LOT more examples. We don't have to adopt a broad reaching indictment, however, to realize that there ARE problems that go deeper than a few individuals that are at the root of the problem.

In her column today, Ruth Marcus provides one clue. Although I don't endorse much of her column's commentary on the budget deficit, it contain several points worth mentioning in this sordid affair:
Every administration has its Goodlings, inexperienced punks who flaunt their authority as conspicuously as a West Wing badge.

Most administrations find ways to keep the Goodlings under control and the grown-ups in charge. The trouble with this one is that it is riddled with Goodlings Gone Wild, incapable of or unwilling to distinguish between the proper pursuit of political aims and the responsible administration of government.

In sum, says Marcus:
Monica Goodling was not the problem. She was the symptom...
I think that's correct.

There have been many illustrations of problems caused by the fact that the wrong people were in the wrong jobs in this administration, "Brownie" only being the most celebrated example. (disclosure - I once applied for a position in the Administration during the transition but was not interviewed)

Although many of the Bush appointees were stellar, there were those who were not there because of their talent and dedication to public service, but who they had worked for in their past, and their personal loyalty to the President (the most stomach turning moment in the IG report for me comes in the form of one question Goodling asked the applicants: "[W]hat is it about George W. Bush that makes you want to serve him?" The Department's lawyers, of course, serve the people of the United States, not the President in a personal capacity, as her use of his name rather than the office implies).

To be clear, there are positions for such people (i.e. inexperienced campaign workers) as Marcus indicates. If you work on a winning presidential campaign, a job in DC is often the reward. Remember the bouncer who was hired to manage the White House personnel files in the Clinton administration? There are such people in all Administrations.

Making sure that those who got their position on this basis, however, are kept away from the more sensitive positions is important. Failing to understand this has been behind a fair amount of this administration's missteps.


Our Mission

This blog was created to facilitate the civilized exchange of ideas about government and law. It was born out of a frustration with the current, polarized state of debate about these things. My intent is that it can serve as a forum to introduce the best ideas from either side in a thoughtful, non-partisan manner.

The Author

The author is a lawyer living in the Washington, DC area (surprise). I spent over 10 years working on Capitol Hill for several members of Congress and committees, and am currently in the private sector, still working on government policy issues. It is my intent to stay away from those issues that I work on, though, and focus on the topics being discussed in the news.


I will enable comments, but moderate them as I have found too many websites have become bogged down in partisan rancor. I will allow any comment that is courteous and on point, regardless of whether I agree with it, and only block those that are off topic or are not keeping in spirit with the purpose of this blog.