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Did Sampson and Goodling Have Total Control of DOJ Political Hiring?:
The National Journal has a fascinating story about the hiring and firing of political appointees at DOJ that may help explain the context of the U.S. Attorney "purge" story:
Attorney General Alberto Gonzales signed a highly confidential order in March 2006 delegating to two of his top aides — who have since resigned because of their central roles in the firings of eight U.S. attorneys — extraordinary authority over the hiring and firing of most non-civil-service employees of the Justice Department. A copy of the order and other Justice Department records related to the conception and implementation of the order were provided to National Journal.

In the order, Gonzales delegated to his then-chief of staff, D. Kyle Sampson, and his White House liaison "the authority, with the approval of the Attorney General, to take final action in matters pertaining to the appointment, employment, pay, separation, and general administration" of virtually all non-civil-service employees of the Justice Department, including all of the department's political appointees who do not require Senate confirmation. Monica Goodling became White House liaison in April 2006, the month after Gonzales signed the order. . . .

A senior executive branch official familiar with the delegation of authority said in an interview that — as was the case with the firings of the U.S. attorneys and the selection of their replacements — the two aides intended to work closely with White House political aides and the White House counsel's office in deciding which senior Justice Department officials to dismiss and whom to appoint to their posts. "It was an attempt to make the department more responsive to the political side of the White House and to do it in such a way that people would not know it was going on," the official said.

An original draft of Gonzales's delegation of authority to Sampson and Goodling was so broad that it did not even require the two aides to obtain the final approval of the attorney general before moving to dismiss other department officials, according to records obtained by National Journal. . . .

The department's Office of Legal Counsel feared that such an unconditional delegation of authority was unconstitutional, the documents show. As a result, the original delegation was rewritten so that in its final form the order required "any proposed appointments or removals of personnel" be "presented to the Attorney General... for approval, and each appointment or removal shall be made in the name of the Attorney General."

The senior administration official who had firsthand knowledge of the plan said that Gonzales and other Justice officials had a "clear obligation" to disclose the plan's existence to the House and Senate Judiciary committees — but the official said that, as far as he knew, they had not done so.
  Remarkable. And assuming this story checks out, it certainly explains why Gonzales seemed so clueless about the U.S. Attorney firings. It seems that Gonzales had taken himself completely out of the loop of all DOJ political appointee hiring. He had delegated that role completely to two 30-somethings, Kyle Sampson and Monica Goodling; his only role was a formality, required just so that OLC would find the practice constitutional.

  Thanks to reader Bob English for the link.
Shelby (mail):
Wow. Thanks for posting this, Orin.
4.30.2007 7:20pm
Anderson (mail) (www):
Sorry to be naive, but WHY would Gonzales do this?

The only answer that I can think of is "deniability," but that seems so stupid.
4.30.2007 7:25pm
Bored Lawyer:

his only role was a formality, required just so that OLC would find the practice constitutional.


Can you explain this?
4.30.2007 7:40pm
Justice Fuller:
Sorry to be naive, but WHY would Gonzales do this?

Maybe the White House asked him to, and Gonzales is not one to say "no" to the White House.
4.30.2007 7:40pm
Anderson (mail) (www):
Maybe the White House asked him to

Okay, but that just bumps the question up a step. Why would the White House want AG AG cut out of the loop? He's already loyal to a fault, as you note.

I guess it was indeed for "deniability" -- maybe it sounded like a good idea to Rove.

Or it could be that AG insisted on it -- "I refuse to be involved in this indecent politicization! Here, let me sign an order so that it can be carried on by someone else!" A matter of principle ...
4.30.2007 7:47pm
Just an Observer:
Orin: "Remarkable."

But according to the National Journal article:

Deputy White House Press Secretary Tony Fratto said it was "unremarkable" that Sampson and Goodling would be involved in the hiring and firing of Justice Department officials.


Well, I guess that settles it. Obviously, Orin is incorrect. Nothing to see here.
4.30.2007 7:50pm
Advantage?:
This must explain why he remembers making the decision (to dismiss the USAs), but not when he made the decision!
4.30.2007 7:51pm
Ramza:
At least Sampson went to a decent law school University of Chicago Law School, undergrad at Brigham Young University

Goodling went to Regent University Law School and got her undergrad at Messiah College.

Sigh this controversy makes me sadder each day
4.30.2007 7:51pm
OrinKerr:
JaO,

A parody, I assume?
4.30.2007 7:53pm
Just an Observer:
Orin,

I confess to sarcasm.

This is remarkable, indeed.
4.30.2007 8:04pm
Shelby (mail):
It may be unremarkable that they were involved in the decisions, but it's surely remarkable that they were apparently making the decisions.
4.30.2007 8:10pm
Federal Dog:
Ramza--

So what? Two of the biggest legal idiots I know graduated from Harvard Law.
4.30.2007 8:13pm
r78:
Ramzaa - so you think that, on average, students from Messiah College and Regents University are less likely to be idiots than Harvard grads?
4.30.2007 8:48pm
Visitor Again:
So what? Two of the biggest legal idiots I know graduated from Harvard Law.

Is one of them a guy named Alberto Gonzales?
4.30.2007 8:57pm
OrinKerr:
Okay, kids, stop with the "who went to law school where" comments.
4.30.2007 9:03pm
Justin (mail):
He had delegated that role completely to two 30-somethings, Kyle Sampson and Monica Goodling the White House; his only role was a formality, required just so that OLC would find the practice constitutional.

Fixed your post, unless you're going to assume that Goodling and Sampson did things on their own initiative, without orders.
4.30.2007 9:17pm
Christopher M (mail):
I wonder what other scandalous secret orders from this administration are out there? Maybe Congress should request a formal answer (if not testimony) from all the major department heads, asking about the degree to which control over their departments has been placed in the hands of "the political side of the White House."
4.30.2007 9:23pm
Bored Lawyer:
Let me repeat my question: what is the constitutional infirmity in the President delegating the firing decision in one department to two lower-level functionaries, as opposed to the Atty General? The bottom line is that the PRESIDENT has the Constitutional discretion to fire these appointees.
4.30.2007 9:38pm
BobNSF (mail):
[Deleted by OK. BobNSF, if you would like to hire me to blog on topics that you personally find important, I am available for that. Please just e-mail me at my law.gwu.edu address, and we can set something up. However, if you think that you have some kind of absolute right to comment however you please, regardless of whether I find it relevant to the thread, I'm afraid you're mistaken. In any event, if you have additional thoughts on this, please do not waste everyone's time by posting them here: instead, just e-mail me and we can discuss this off-list.]
4.30.2007 9:59pm
Constantin:
I'm interested in an answer to Bored Lawyer's question.

As a practical matter, I'd rather have almost anybody making any decision as long as it kept that decision from being made by Alberto Gonzales. I don't care how old they are or where they went to law school.
4.30.2007 10:17pm
Passing Through 01:
I'm also interested in the answer to Bored Lawyer's question about why delegation to the juniors would be impermissible.

In particular, how would a proponent of the unitary executive theory view OLC's initial concerns?
4.30.2007 10:18pm
ChrisIowa (mail):
Has anyone ever read the amount of stuff that comes out over the signature of any of the secretaries of any of the cabinet departments? If you really think they have read or are knowledgeable about all of the stuff that goes out over their signature, I've got a bridge to sell to you. Cheap. Maybe not so cheap.

If someone is a competent executive they will assign most tasks to others, especially when they can find someone who can do a function better. In this case, the AG found someone he thought could do the personnel job better than he could.

That does not excuse his performance in congressional testimony, as that part is his job. Even if the underlings screwed up for him.
4.30.2007 10:21pm
OrinKerr:
Interesting question about OLC's objections: I don't know why delegation to the AG would be okay but delegation to his staff wouldn't be.
4.30.2007 10:23pm
Ella (www):
Re: OLC's objections to delegations to staff instead of the AG. Could it be that the further down the food chain the President delegates, the less it looks like the President is actually exercising his discretion, as required by statute? Although it may be contrary to the unitary executive theory our current President espouses, the courts have had sometimes been pretty rigid about the identity of the person making decisions.
4.30.2007 10:43pm
Zathras (mail):
Regarding BoredLawyer's question, I do not pretend to know the answer, but I would just venture a couple of vague, diffuse guesses. The positions of US attorney might be created by statute. Perhaps it is these statutes that dictate that the AG has the power to remove them?

Even vaguer and more diffuse: By being in the Cabinet and approved by the Senate, AGAG derives some measure of his power from Congress. Perhaps because of this he is a principal with nondelegable power in a way that others subordinate to him cannot be?
4.30.2007 11:09pm
Sarah L.:
From the article: "The Office of Legal Counsel believed that an unconditional delegation of authority by Gonzales to his aides would be unconstitutional. Corts so informed Gonzales in a February 24, 2006, memo: 'The Office of Legal Counsel (OLC) advises that permitting the Attorney General's delegates to approve [some] appointments … would be inconsistent' with the appointments clause of the Constitution. The 'excepting clause' of the Constitution requires the president alone to exercise the appointment power, or his Cabinet officers, who are appointees themselves."

In other words, it's not the firing, it's the hiring that's the problem. Relevant language, from Art. II, sec. 2 of the Constitution (the excepting clause itself is bolded):

"[The President] shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments" (emphasis added).

Here is a nice discussion of what constitutes an "office" for these purposes:

http://www.justice.gov/olc/2007/appointmentsclausev10.pdf

And here is a nice discussion of the Excepting Clause (not directly on point, but provides some background and history of the provision, esp. pp. 3-4):

http://www.justice.gov/olc/2005/militaryappointments.pdf
4.30.2007 11:25pm
Dave Hardy (mail) (www):
Sorry to be naive, but WHY would Gonzales do this?

The only answer that I can think of is "deniability," but that seems so stupid.


I suspect it looks intelligent, compared to my likely answer. OK, these two will coordinate things with the White House. One fewer thing to worry about. I'll just sign whatever they prepare, and get back to the speaking circuit.

I'm quite serious.

At one point in my time at Interior, the bean-counters came up with the idea of a litigation book, in which every case would have one page. Great bean-counter idea, because everyone else had to do the work, while they got the credit. (Turned out that HQ thought Interior was involved in hundreds of case, and it was actually involved in thousands of them. Preparing the book, monthly, without a single typo -- the bureacracy obsessing on that -- was a major pain).

At the bottom of each page was the staff atty's name and phone. Secretary Lujan actually skimmed his book. Hey, these are some interesting cases! He started calling the attorneys and asking questions. The bureaucracy went into a panic. The Secretary was actually getting data from the people handling things, rather than "the position" of their unit.

We got a written order that we were not to take his phone calls, and to tell him to submit questions thru the appropriate channels. I'm not kidding. The top legal guy had been the president's attorney, and hence had no fear of the Secretary firing him. A cabinet official was unable to call his employees and ask what was going on....
4.30.2007 11:26pm
Kevin! (mail):
I don't see any reason that the White House does not have the power to dictate their moves to the Attorney Generals. That is, any reason in the Constitution that the President does not have full authority to prioritize the prosecution of Democrats over Republicans, to choose "litigation targets," based on the political enemies of the White House, and to pick and choose targets for litigation -- such as Immigration. Although there may be a problem with a deliberate policy of unenforcement of certain Federal laws.

Accepting that premise, is that what BoredLawyer wants? Because personally I don't want any of that.. I want boring relatively nonpartisan AGs. But if there's an argument for the above I'm curious to hear it.
4.30.2007 11:29pm
Brennan:
I think what the Office of Legal Counsel wrote in 2005 about department heads' ability to further delegate the presidential appointments power (referred to above by Sarah L.) is quite telling and on point:

It is true that, by naming three permissible repositories of appointment authority—the President, the Heads of the departments, and the Courts of Law—the Excepting Clause implicitly indicates that the power may not be vested in some other person. The Excepting Clause "prevents Congress from distributing power too widely by limiting the actors in whom Congress may vest the power to appoint" and thereby "reflects our Framers' conclusion that widely distributed appointment power subverts democratic government." Freytag v. Commissioner, 501 U.S. 868, 885 (1991). The Clause was designed to "limit[] the universe of eligible recipients of the power to appoint" in order to ensure that such actors were readily identifiable and politically accountable. See id. at 880. At the same time, however, the Clause does not prohibit substantial involvement of subordinates in the appointment process.

http://www.usdoj.gov/olc/2005/militaryappointments.pdf at page 4.

If the OLC (and the Supreme Court) was right that the Excepting Clause was "designed to 'limit[] the universe of eligible recipients of the power to appoint' in order to ensure that such actors were readily identifiable and politically accountable," then a secret delegation seems to go against the constitutional grain -- and a secret delegation combined with back-channel control by political operatives in the White House would be worse yet.

(Trivia(?): Note who argued the Freytag case for the SG's office.)
4.30.2007 11:47pm
Henry679 (mail):
"The bottom line is that the PRESIDENT has the Constitutional discretion to fire these appointees."

The bottom line was that Nixon had the authority to order Archibald Cox fired, too. Look what that got him.

It all turns on the "why"--and the "why" can still fall well short of criminal and still be unsavory, and something legal professionals should not endorse. Competence in the administration of justice is not a mere "political" chit.
5.1.2007 12:45am
Harry Eagar (mail):
Well, despite the unsavory political origins of the questioning of the firings, the point, Bored, is that everything that is legal to do is not good to do.

If, say, John Kerry had been president since 2004, no doubt he would have done some things differently from what Bush II has done, and what he did would have been legal. Somehow, though, I doubt you and many others would shrug and say, 'So, what's the difference?'

'Will no one rid me of this insufferable priest?' was not an illegal order.
5.1.2007 1:14am
Eli Rabett (www):
How about Karl Rove directing Goodling and Samson to hire and fire?

BTW, this was not provided by DOJ to the Senate Judiciary Committee. Wonder why? A legal question, can the Senate find various members of the DOJ now in contempt of Congress and how does that effect their ability to practice law?
5.1.2007 1:15am
BobNSF (mail):
[Deleted by OK. BobNSF, I realize that that you think you are in the right, and that I should have no right to delete your posts when you think you have something valid to say. But you're quite clearly missing the point. I have blogged a lot about this story, and I agree it's important. But when I ask readers not to hijack threads, I really don't think it's appropriate of you to insist that readers should have some sort of divine right to hijack threads. I asked you to e-mail me rather than post more comments here, and you then proceeded to ignore me. It's quite obnoxious to me, and rudely ignores the amount of time and effort I give to the blog to create a forum that readers may enjoy. Please, stop.]
5.1.2007 2:05am
plunge (mail):
Yeah, Gonzales somehow forgot to mention any of this during his testimony. That's not going to go over well, because it means he basically snowed Congress: he had to deliberately dance around this element of the issue.
5.1.2007 7:43am
Barry (mail):
Bored Lawyer, Constantin and others - the reasons that the firings were very likely illegal have been covered repeatedly. The short answer is that most of the firings appear to be obstruction of justice, attempts to prevent the investigation of GOP politicians, and to push fraudulent investigations of Democratic politicians.

To compound this, Gonzales lied to Congress - which is, despite the overwhelming sentinment among commenters here, actually illegal, even if the Congress is a Democratic Congress. That, combined with Goodling's refusal to testify, Samson's testimony contradicting Gonzales, and Gonzales' inability to remember just about everything he did, lends considerable credence to the theory that there were some serious crimes commited.
5.1.2007 10:25am
Felix Sulla (mail):
That document, if it exists and is authentic, would certainly be a smoking gun. That being said, anyone who has been keeping up with this story inferred the existence of that particular gun (as well as some pretty good assumptions about its make and caliber) some time ago.
5.1.2007 11:31am
BruceM (mail) (www):
Gonzales's DOJ routinely prosecutes CEOs whose subordinates violated the law, on a respondeat superior / authorized delegation of authority theory. Why should gonzales be allowed to get away with this crap by saying "I had no clue about their actions" when criminal defendants prosecuted by his department are not entitled to such an excuse? If your position is that gonzales or the aids didn't break the law, then that's even more of an excuse--not less of one--to hold him vicariously liable. The more criminal an act is, the more due process is owed.
5.1.2007 11:32am
Bored Lawyer:

the reasons that the firings were very likely illegal have been covered repeatedly. The short answer is that most of the firings appear to be obstruction of justice, attempts to prevent the investigation of GOP politicians, and to push fraudulent investigations of Democratic politicians.


This is NOT the theory advanced in this thread. The theory advanced here, rather, is that there is some CONSTITUTIONAL limitation as to whom the President can delegate hiring and firing functions.

As to your theory, it has several holes. First, it seems clear that 6 out of 8 of the fired US Atty's had nothing to do with ongoing investigations.

Second, firing a US Atty does not impede an investigation or prosecution -- which can very well go forward with other prosecutors.

Third, IMO, the application of the obstruction of justice statute to these circumstances -- a President's discretionary firing of a senior federal officer -- is problematic both from a statutory as well as Constitutional perspective. This is not classic obstruction of justice -- lying to a federal investigator, destroying or fabricating evidence, witness tampering, etc. What is involved here, rather, is a President exercising his Constitutional prerogative to fire a federal officer. Ultimately it is the President (through the DOJ) who determines what is or is not prosecutable.
5.1.2007 11:45am
Bored Lawyer:

Well, despite the unsavory political origins of the questioning of the firings, the point, Bored, is that everything that is legal to do is not good to do.


Certainly, there are many things that are unsavory yet perfectly legal. The problem is that in this scandal, there is a complete jumble of what has been charged -- anything from unconstitutional appointments, criminal obstruction of justice, to the merely unsavory.

And the latter too can have many levels and points of agreement or disagreement. Is it "unsavory" for a President and his AG to determine that illegal immigration is a serious problem, that enforcement (including criminal prosecutions, where warranted) should be increased, and if a senior DOJ appointee, like a US Atty, cannot work with this policy, he or she should be replaced?

Sure, using the DOJ for purely partisan purposes (i.e. limiting corruption prosecutions to those of your opposing party) stinks to high holy heaven.

But we should make clear that just because something stinks (and for which a President ought to pay a political price) does not necessarily mean it is criminal or violates the COnstitution.)
5.1.2007 11:53am
Randy R. (mail):
Why didn't Gonzales turn over this document when Congress asked for all documents relating to the hiring and firing of US attorneys? Seems like someone was hiding it.
5.1.2007 11:58am
Bored Lawyer:

It is true that, by naming three permissible repositories of appointment authority—the President, the Heads of the departments, and the Courts of Law—the Excepting Clause implicitly indicates that the power may not be vested in some other person. The Excepting Clause "prevents Congress from distributing power too widely by limiting the actors in whom Congress may vest the power to appoint" and thereby "reflects our Framers' conclusion that widely distributed appointment power subverts democratic government." Freytag v. Commissioner, 501 U.S. 868, 885 (1991). The Clause was designed to "limit[] the universe of eligible recipients of the power to appoint" in order to ensure that such actors were readily identifiable and politically accountable. See id. at 880. At the same time, however, the Clause does not prohibit substantial involvement of subordinates in the appointment process.


Thank you, Brennan, for an interesting angle I had not thought of. This probably requires a separate post, but some questions raised are:

1. What exactly is an "inferior officer" as to whom the limit discussed applies? Most federal departments have thousands of employees, hard to believe this applies to them.

2. Why is one level away OK? The argument is that the PRESIDENT has to appoint the inferior officers. Why is it OK for him to delegate it one level away --say to the AG (or other cabinet level officer) but not two levels away. Do Presidents really appoint all the deputy and assistant level secretaries in each federal dept.?

3. the Clause does not prohibit substantial involvement of subordinates in the appointment process. So what exactly is the minimum required of the President? Is it enough (as I suspect happens) that he tells each cabinet member -- "draw up a list of those you want appointed in your department, I'll review quickly, and appoint them"?
5.1.2007 12:01pm
JSA (mail):

2. Why is one level away OK? The argument is that the PRESIDENT has to appoint the inferior officers. Why is it OK for him to delegate it one level away --say to the AG (or other cabinet level officer) but not two levels away. Do Presidents really appoint all the deputy and assistant level secretaries in each federal dept.?

Read the clause of the Constitution again. The President, or the heads of department (e.g., the AG), can have authority to appoint inferior officers.
5.1.2007 12:39pm
Anderson (mail) (www):
Bored Lawyer for AG!
5.1.2007 12:41pm
Jeremy T:
An issue I noticed is that everyone is saying Goodling and Sampson had authority, but they simply did not. Everything they did was subject to approval by the AG. Now some have suggested that this was a rubber stamp, and maybe it was, but if you have to get Decision X rubber stamped, it's not your decision. It's the stamper's decision.
5.1.2007 3:31pm
Harry Eagar (mail):
Bored sez: 'Certainly, there are many things that are unsavory yet perfectly legal. The problem is that in this scandal, there is a complete jumble of what has been charged -- anything from unconstitutional appointments, criminal obstruction of justice, to the merely unsavory.'

Agree as to the jumble, which is almost inevitable when the whippers-in are motivated more by partisan advantage than any principled concerns about legality or good government.

However, it seems to me that Gonzales has been exposed as a miserable administrator, and that ought to be enough reason to get rid of him. Even if none os his actions rose even to the level of 'unsavory.'

Who now would want to put him in charge of anything that required close supervision?

The assault of Wolfowitz at the World Bank seems rather similar. What Wolfowitz did, whatever that was, does not seem like a great offense -- and it is hilarious that the Old Guard at the bank, perhaps the world's biggest provider of financial corruption, should be so worried about a possibly unmerited disbursal of less than $100K -- but it does reveal W. as somebody not ready to direct a large organization.
5.1.2007 5:03pm
Anderson (mail) (www):
An issue I noticed is that everyone is saying Goodling and Sampson had authority, but they simply did not. Everything they did was subject to approval by the AG.

The interesting thing, Jeremy T., is to ask WHY they even sought to get the original, no-AG-needed version in place ... and then to ask whether that original version better represented how the process worked in practice.

If the White House decides to put the Iraq war into the hands of Nicholas Romanov, no Presidential approval needed, and then someone remembers Article II and says, "whoops, we need to add something about 'subject to presidential approval,'" then it's a fair inference that the purpose will remain to have Nicholas running the war, "approval" notwithstanding.
5.1.2007 7:26pm