January 26, 2011 | Commentary on Rule of Law, Department of Justice

Is the Fix In at Justice?

Announce bad news on a Friday afternoon, the rule in official Washington goes. Attorney General Eric Holder seems to have a new corollary: Make bad appointments over holiday breaks.

It works. Holder’s announcement on Christmas Eve that he was appointing Robin Ashton as the new head of the Office of Professional Responsibility (OPR) went virtually unnoticed in the press, other than a highly complimentary article in the Washington Post.

That’s unfortunate, considering how important this position is. OPR investigates ethics violations by Justice Department lawyers. It should be headed by someone who does not place partisanship above the law, and who has the highest ethical standards and a sterling reputation. Robin Ashton does not fit that bill. Indeed, Ashton’s antics at DOJ have often been so petty and juvenile that she should be disqualified from serving in any career leadership position at Justice, much less the one responsible for enforcing ethical standards.

Why, given the well-deserved black eye that OPR has suffered over the last year for its politically tilted investigations, would Holder appoint a hyper-Democratic loyalist such as Ashton to run the office? Perhaps because the über-political Holder wants to solidify the liberal bias that already pervades OPR and thereby ensure that the political machinations of his minions are glossed over (if not outright ignored).

The timing makes this appointment even more troubling than it would otherwise be. OPR is currently investigating allegations of undue political interference in the Civil Rights Division’s New Black Panther Party voter-intimidation case. OPR is supposed to be investigating claims by the trial team that supervisors improperly dismissed the case for political or racial reasons, and that political appointees instituted a policy prohibiting the enforcement of voting-rights laws against minority defendants like the New Black Panthers.

OPR (working in tandem with the Justice Department’s inspector general) is also supposed to be investigating whether these same supervisors and political appointees have engaged in unethical obstruction of the investigation undertaken by the U.S. Commission on Civil Rights. The new chairman of the House Judiciary Committee, Lamar Smith (R., Tex.), sent a letter to Eric Holder on January 6 demanding answers on all of these issues.

The investigation of the New Black Panther Party case has dragged on for more than a year and a half. OPR had to remove the lawyer initially assigned to investigate the case (Mary Aubry) after it became public that she had made thousands of dollars of political contributions to Barack Obama, other Democratic candidates, and the Democratic National Committee, with the latest contribution to the DNC coming as recently as July 13, 2010.

As I have written before, the same kinds of liberal ideologues who inhabit the career ranks of the Civil Rights Division also fill many of the career-attorney slots at OPR. These liberals are behind the report that OPR released on supposedly “politicized” hiring in the Civil Rights Division during the Bush administration — a report filled with inaccuracies, gross exaggerations, and deliberate misrepresentations of both facts and law. The report also brazenly ignored the extensive political hiring that occurred during the Clinton administration — hiring that had gone on at the direction of liberal career managers who sought to surround themselves with ideological soul mates.

Incredibly, the former head of OPR, Marshall Jarrett, assigned a liberal former Civil Rights Division lawyer — Tamara Kessler — as the chief investigator in the probe of the Civil Rights Division. Kessler’s glaring conflict of interest went unrecognized by the very office that is supposed to investigate ethical breaches and conflicts of interest.

The recent (and now discredited) OPR report examining the legal memoranda prepared by top DOJ attorneys on “enhanced interrogation techniques” during the Bush administration provides another example of OPR’s extreme political bias. That report — authored in large part by Tamara Kessler — wrongly accused two Office of Legal Counsel attorneys (John Yoo and Jay Bybee) of “professional misconduct” based on OPR’s disagreement with the substantive legal conclusions they had reached. Michael Mukasey — who served as attorney general under President Bush, and before that as a federal judge — blasted the OPR report, characterizing it as “based on factual errors, legal analysis by commentators and scholars with unstated potential biases, unsupported speculation about the motives of Messrs. Bybee and Yoo, and a misunderstanding of certain significant . . . interagency practices.”

Even the Justice Department’s senior career attorney, David Margolis, rejected the OPR findings and heavily criticized the office for creating new standards out of whole cloth and grounding its findings on a factual foundation that crumbled at the slightest touch.

Although its substantial deficiencies have now been exposed, OPR (often working in conjunction with the inspector general) managed to create enormous public-relations problems for the Bush administration. Democrats applauded these faux findings during the final years of Bush’s presidency, but Holder apparently wants to make sure that OPR will act in the opposite way for the Obama administration, i.e., as a shop that whitewashes real misconduct. Hence the appointment of Ashton.

Ashton may be a “veteran Justice prosecutor,” as the Post called her, but according to lawyers who worked with her at DOJ, she is also a highly political person who was so upset over George Bush’s reelection in 2004 that she angrily vented her frustration to her colleagues in the Executive Office for U.S. Attorneys (EOUSA) — of which she was a deputy director — and made no effort to hide her contempt for President Bush or his administration.

Ashton’s bad reputation goes beyond partisan grievance. Two former directors of EOUSA were interviewed in 2006 by the House Judiciary Committee during its investigation of the firing of nine U.S. attorneys. According to someone familiar with the entire transcripts of those interviews (which are not public), the directors were scathing in their criticism. Ashton reportedly would go through the desk of one former director, Mary Beth Buchanan, when she was out of the office, rifling through confidential files and documents. Ashton was also characterized by former colleagues as completely untrustworthy — someone who treated subordinates like chattel while she did everything possible to ingratiate herself with her bosses, often claiming credit for work that others had done. This sounds more like the behavior of a less-than-stellar high-school student than that of a DOJ lawyer.

Ashton’s political loyalties were demonstrated emphatically by her request to be detailed to the office of Sen. Patrick Leahy of Vermont, one of the fiercest and most partisan liberal Democrats in the Senate. The Justice Department acquiesced to Ashton’s request and actually paid her salary while she worked in Leahy’s office, helping him attack the Bush administration’s Justice Department. As one Justice Department lawyer who worked with Ashton told me, “You don’t do a detail with Patrick Leahy if you’re not a committed, solid Democrat whose political loyalty Leahy would never question.”

Meanwhile, lawyers in the Justice Department tell me that the new OPR and IG lawyers assigned to the investigation of the Civil Rights Division show every sign of harboring the same bias toward any attorney in the division who has ever dared utter a conservative thought. The questioning of the career trial team has been “extremely hostile.” In one incident, the investigators started asking one of the trial-team lawyers about internal e-mails he had written several years before the New Black Panther Party case had even arisen. Reviewing antiquated e-mails of the career lawyers who worked on this case has no purpose unless the OPR and IG investigators are trying to find completely unconnected issues that they can use to tarnish the professional reputations of these attorneys, thus protecting Obama’s political appointees and disregarding their ethical and professional violations in the New Black Panther Party case.

“Given her partisan instincts and the loyalty she feels to the current attorney general,” one former DOJ lawyer told me, “there is no way that Robin Ashton will allow any report to come out that criticizes Eric Holder or his deputies.” Moreover, the lawyers in OPR and the IG’s office know that from a standpoint of professional advancement within Justice, their own careers would suffer if they came out with such a report.

To add insult to injury, Attorney General Holder, in an interview in the New York Times, improperly (and unprofessionally) commented on the open investigation of the New Black Panther Party case, saying, “There is no there there.” He also called the investigation of the hostility to racially neutral enforcement of the law in the Civil Rights Division a “made-up controversy.” Thus, the lawyers in OPR have been told by their attorney general what their conclusions should be in these investigations — never mind what facts they uncover.

Just to reinforce the message that Ashton will have a free hand to cover up the department’s wrongdoing, President Obama has given a recess appointment to Holder friend and administration loyalist James Cole to be the deputy attorney general, the number-two slot at Justice. It is Cole’s office that would review Ashton’s report on the results of OPR’s investigation into the Civil Rights Division.

The final element of the fix is that on January 18, Holder announced he was forming a new “Professional Misconduct Review Unit” that will be responsible for “all disciplinary and state-bar referral actions relating to OPR findings of professional misconduct.” In other words, even in the unlikely event that OPR finds misconduct, this new unit will decide whether to notify state bar authorities of OPR’s report. And whom did Holder put in charge of the new unit? Why, his loyal former chief of staff (and Obama campaign contributor) Kevin Ohlson.

Perhaps we will all be pleasantly surprised by Ashton’s performance. But if what lawyers who have worked with her at Justice tell me is true, I wouldn’t count on it. And that will be just one more long-lasting negative legacy of Eric Holder’s reign.

Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation

About the Author

Hans A. von Spakovsky Manager, Election Law Reform Initiative and Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

First appeared in National Review Online