Justice at Justice

Thursday, August 14, 2008

WHAT D. KYLE Sampson and Monica Goodling did was inexcusable. The former Justice Department officials weeded out candidates for nonpartisan career positions on the basis of political affiliation -- a practice prohibited by department policy and civil service laws. A scathing report by the Justice Department's inspector general and Office of Professional Responsibility recounted the duo's attempts to stack the department with conservatives who were good on "god, guns + gays" -- actions that cut against the moral imperative of the department to carry out its mission of enforcing the laws in a fair and neutral way. Yes, the behavior of Mr. Sampson and Ms. Goodling was reprehensible, but Attorney General Michael B. Mukasey is right: It was not criminal.

Mr. Mukasey has been excoriated for saying in a speech before the American Bar Association on Tuesday that the Justice Department would not prosecute Mr. Sampson and Ms. Goodling. Mr. Mukasey wasn't exercising prosecutorial discretion; he was simply reflecting the fact that the laws broken by the two are civil in nature and do not empower the Justice Department to press charges. It's not that Mr. Mukasey won't prosecute, it's that he can't.

But because civil laws were broken, those who were harmed may sue the department, as several have done already. Mr. Mukasey has promised to reach out to those who were inappropriately culled to invite them to reapply; this outreach will surely serve to alert some former candidates who may not have known they were eliminated from contention because of political factors. Mr. Sampson, Ms. Goodling and three others implicated in the hiring will also probably face investigations in the states where they are licensed; if they are found to have violated state bar strictures, they could be disbarred.

Mr. Mukasey, while strongly condemning the injection of politics into the hiring process, also wisely declined calls to remove those who won positions because they presumably passed the Sampson-Goodling litmus test. Mr. Sampson and Ms. Goodling -- not the candidates -- were the ones who breached Justice Department policy and civil laws; the unsavory nature of the appointment process does not necessarily mean that those who prevailed are unqualified. These staffers are now subject to routine evaluations, and they -- like all employees -- should be held to the highest standards. If they are to be removed it should be for cause -- and not as political payback: That would possibly violate civil service laws.

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