Hiring Process Was Bypassed for Prosecutor
D.C. District Attorney Says Justice Officials Recommended Candidate but the Decision Was His

By Carol D. Leonnig
Washington Post Staff Writer
Tuesday, May 8, 2007

When he was counsel to a House subcommittee in 2005, Jay Apperson resigned after writing a letter to a federal judge in his boss's name, demanding a tougher sentence for a drug courier. As an assistant U.S. attorney in Virginia in the 1990s, he infuriated fellow prosecutors when he facetiously suggested a White History Month to complement Black History Month.

Yet when Apperson was looking for a job recently, four senior Justice Department officials urged Jeffrey A. Taylor, the top federal prosecutor for the District of Columbia, to hire him. Taylor did, and allowed him to skip the rigorous vetting process that the vast majority of career federal prosecutors face.

As Congress and the administration spar over whether Attorney General Alberto R. Gonzales allowed politics to unduly influence the work of the Justice Department, Apperson's hiring has been cited by government lawyers and others as an example of how a system that relies on apolitical prosecutors should not function.

It is not clear whether Apperson's hiring is part of the internal Justice Department investigation of Monica M. Goodling, until recently the agency's senior counselor and White House liaison, for allegedly considering applicants' political affiliation in hiring decisions. That probe began when Goodling allegedly tried to hold up the hiring of another prosecutor whom Taylor was recruiting, according to two law enforcement sources familiar with the inquiry.

Goodling said the candidate, a government civil rights lawyer, appeared to lean Democratic, two sources said yesterday. Taylor ultimately gained permission from the Justice Department to bypass Goodling and hire prosecutors without her review. He hired the civil rights lawyer, who is scheduled to start work on Monday.

But Chuck Rosenberg, the U.S. attorney in Alexandria, heard about Taylor's allegations and referred the matter to the agency's inspector general and its Office of Professional Responsibility while serving as Gonzales's interim chief of staff in March and April, according to two law enforcement sources.

Newsweek first revealed in its current issue the matter that led to the investigation.

Taylor, who formerly worked as Gonzales's counsel, said the decision to hire Apperson was his. But he said that Michael Elston, the chief of staff to Deputy Attorney General Paul J. McNulty, and Acting Associate Attorney General William W. Mercer urged him to consider Apperson. Principal Associate Deputy Attorney General William E. Moschella and Michael A. Battle, who at the time headed the office that oversees U.S. attorneys, also suggested that Apperson would be a good hire.

"They said, 'The guy needs a job. He'd do a good job for you,' " Taylor recalled in an interview this week. "But I want to be clear. No one ordered me to hire Jay Apperson. If someone says I made an error in judgment, that's fine."

Taylor said he "may have" discussed hiring Apperson with Goodling but does not recall doing so.

Apperson, 51, declined to be interviewed for this article. Justice Department spokesman Brian Roehrkasse referred to Taylor all questions on Apperson's hiring.

Taylor said he allowed Apperson to skip the three-stage screening process for applicants because of Apperson's experience as a prosecutor in Virginia from 1987 to 1996.

That review normally begins with lengthy separate interviews with three hiring committee members, followed by a mock "opening argument" that applicants must deliver on videotape. If candidates are judged worthy after these two stages, they are interviewed by the U.S. attorney.

Taylor said he has hired 20 prosecutors since he took over in September and has allowed one other -- who was rejoining the Washington office after a few years' hiatus -- to bypass the screening process.

He said half a dozen other prosecutors in the office skipped the screening process because of their experience, but he acknowledged that many others were screened, particularly if they were assigned to D.C. Superior Court.

Laurie L. Levenson, a professor at Loyola Law School who testified before Congress on Feb. 6 about the politicization of the Justice Department, said that she did not know the circumstances of Apperson's hiring but that politics should not be part of the equation.

She said it is not unusual for a political official to "put in a good word" for an applicant for a prosecutor's job. "The question is," she said, "did this one go beyond that? Did this open the door for someone they otherwise wouldn't have taken?"

Taylor said that in hiring Apperson, he took into account that the Eastern District of Virginia had signaled it would not rehire him. Apperson acknowledged that joking about a proposal for a White History Month was inappropriate, according to a source in the prosecutor's office.

Apperson, who worked for independent counsel Kenneth W. Starr on the Whitewater and Monica S. Lewinsky investigations, abruptly left his job as chief counsel for a House Judiciary subcommittee in July 2005 after he wrote a letter over the signature of his boss at the time, Rep. F. James Sensenbrenner Jr. (R-Wis.), to a chief judge of a federal appeals court. In the letter, Sensenbrenner demanded that the chief of the U.S. Court of Appeals for the 7th Circuit rethink his court's pending sentencing decision and give a drug courier a longer prison term.

A Capitol Hill official familiar with the matter said at the time that Apperson's leaving "had everything to do" with his role in the letter.

Ethics experts said the letter violated House rules that prohibit lawmakers from intervening in court cases and from communicating with judges without notifying the other parties in the case. Several judges in Washington remember the letter well, describing it as part of a pattern by the then-Republican-led Congress to interfere with the judiciary.

Apperson also wrote 2003 legislation known as the Feeney Amendment, which instructed the U.S. Sentencing Commission to help reduce the number of times judges gave more lenient sentences than federal guidelines recommend. It required that Justice officials and courts create a system to report to Congress when individual judges showed leniency in sentencing.

Judges across the political spectrum, including then-Chief Justice William H. Rehnquist, derided the provision as damaging and insulting.

Late last year and early this year, Apperson was working as legislative counsel for Sen. Saxby Chambliss (R-Ga.) and was passing around his résumé. Taylor said he agreed in January, after conferring with several Justice Department officials, that the best fit for Apperson was as a prosecutor in his office.

"Sure, he's made some mistakes in judgment," Taylor said. "For gosh sakes, everybody deserves a second chance."

Staff writers Amy Goldstein and Dan Eggen and staff researcher Julie Tate contributed to this report.

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