Six years ago, senior U.S. Justice Department officials under Attorney General Alberto Gonzales dismissed prospective career employees in a politicized hiring scheme that used political and ideological affiliation to assess candidates.
The government doesn’t defend the misconduct. But officials say they think a Privacy Act lawsuit in Washington over the practices is without merit. U.S. District Judge John Bates dismissed the suit in December. At the same time, the judge said the case “reflects extremely troubling behavior” among high-ranking officials at DOJ.
The dispute over the alleged creation — and swift destruction — of improper records about job candidates’ personal lives is now in the U.S. Court of Appeals for the D.C. Circuit, where a dark chapter at Main Justice will get renewed scrutiny. Last week, the lawyer for the unsuccessful DOJ candidates took swipes at the department and the trial judge, saying in court papers that Bates perhaps “lost sight of the legal significance of these extreme underlying facts.”
The attorney, Daniel Metcalfe, former director of the DOJ Office of Information and Privacy, said the resolution of the case carries potential consequences across the federal bureaucracy over the creation and destruction of records. A ruling in support of DOJ, he said, could signal to federal agency officials that they can effectively destroy any record at any time, regardless of content. Metcalfe asked the appeals court to reinstate the suit.
“[T]he plaintiffs want any future Attorney General to think twice about considering doing such a thing, even 40 years from now,” wrote Metcalfe, who teaches secrecy law at American University Washington College of Law, in an email. He said the plaintiffs “seek a firm judicial condemnation — and deterrence — of such shockingly egregious conduct by the nation’s premier law enforcement agency.”
The facts of the case are not much in dispute. A DOJ internal investigation, published in 2008, concluded that top DOJ officials, including Esther McDonald, then counsel to the associate attorney general, systematically sought out political and ideological information on the Internet about job candidates in the highly competitive DOJ Honors Program. The program, through which career DOJ lawyers are hired, is the entry-level point for law students and clerks who have no other legal experience.
In 2006, nearly one-third of all Honors Program applicants who’d been selected for interviews for slots at DOJ were “deselected,” according to the inspector general’s office report. Investigators said screening committees in each of the previous three years had deselected no more than 7 percent of the applicants.
Records of the Internet searches have been destroyed, leaving the plaintiffs, according to DOJ lawyers, unable to prove that any inappropriate document was ever created about a specific person. That’s one reason, DOJ Civil Division trial attorney Brad Rosenberg said at a hearing in October, that the Privacy Act doesn’t work for the plaintiffs. Government agencies are generally prohibited, under the act, from maintaining records about a person’s First Amendment activities.
“We have tried to right the wrongs that occurred,” Rosenberg said at the hearing. “But the question here is whether the Privacy Act claims of these three particular plaintiffs is the proper vehicle for them to seek the redress that they’re seeking. And we think the answer to that simply is no, that this really is a square peg that the plaintiffs are trying to fit into a round hole.”
Bates said in his ruling in December that the Federal Records Act does not directly require specific documents to be preserved. DOJ officials, the judge said, decided which records were appropriate to be kept. Bates rejected the argument that the plaintiffs were entitled to a “spoliation inference” — the notion that DOJ officials got rid of certain documents to hide something negative.
“The Court agrees with plaintiffs that misconduct from senior government officials should not be condoned,” Bates said. “Nonetheless, as much as the Court might disapprove of certain conduct, the evidence before it must be objectively analyzed under the law. “
Metcalfe’s brief in the D.C. Circuit, filed July 23, said the “deselection records” were required to be preserved rather than automatically destroyed.
At a minimum, Metcalfe said, the records should have been kept for two years. He noted that the records had already been destroyed prior to the initiation in April 2007 of the inspector general’s investigation. “Nowhere else in the federal government are the sole records memorializing personnel decisionmaking just destroyed like that,” Metcalfe said in an e-mail.
Gonzales, the attorney general from 2005 to 2007, did not return a message seeking comment. (He is now counsel to Nashville, Tenn.’s Waller Lansden Dortch & Davis, where he practices in government investigations and crisis management.)
“Obviously everyone is smarter in hindsight. In hindsight you wish you would do some things differently and…I feel disappointment in myself,” Gonzales said in a deposition in the suit in September 2010. He also said at one point: “I, the attorney general, am ultimately responsible.”
Mike Scarcella can be contacted at firstname.lastname@example.org.