The Justice Department’s unwatched revolving door
The Justice Department’s Civil Rights Division has hired dozens of Democratic-affiliated lawyers from organizations that have a huge financial stake in the agency’s decisions and policies.
Under George W. Bush, DoJ officials shifted hiring patterns to favor lawyers from GOP-affiliated groups, and away from Democratic-affiliated groups, according to a 2008 report by the DoJ’s Inspector General. The IG report was produced after Democrats and their allies in the media declared Bush’s hiring patterns to be controversial.
This practice is regulated in other agencies, such as the Pentagon, where long-standing expectations and regulations restrict the “revolving door” movement of lobbyists and executives between companies and government posts. But these restrictions have little or no impact on the Justice Department’s hiring of lawyers from groups such as the ACLU or the NAACP, or from D.C-law firms such as Venable.
Many D.C. good-government lobbies have campaigned to narrow the revolving door between corporations and government, but little effort has been made to block the doorway between legal firms and government offices, said Craig Holman, a lobbyist at Public Citizen, a left-of-center advocacy group which has long pushed for tighter curbs on legislators’ ability to walkout out of Congress and into a lobbying firm.
“We’ve been battling revolving-door abuse [by companies] for years now,” said Holman. But the campaigns have “not been extended to that [legal] sector… there has not been any discussion yet” about doing so, he said.
The law community’s revolving door was inadvertently exposed last week by two uncritical articles published by the National Law Journal and the New York Times. Both outlets studied the resumes of the DoJ’s new hires to show how the DoJ had reversed hiring-patterns followed during the previous administration.
On May 30, the law journal said the DoJ had hired 118 new people, of which 60 worked for a “civil rights” organization, either at its federal office or regional affiliate. The 60 people included 24 from the ACLU, 15 from the Lawyers’ Committee For Civil Rights Under Law, 10 from the NAACP or the NAACP Legal Defense and Educational Fund, and three from the Mexican American Legal Defense and Educational Fund.
The New York Times examined the 47 resumes of new hires, and reported May 31 that “about 90 percent of the Obama-era hires listed civil rights backgrounds on their résumés, up from about 38 percent of the Bush group hires.”
Although the term “civil rights” is vague and politically contentious, many of the new lawyers hired by the department’s civil-rights division previously worked for advocacy groups that also describe themselves as “civil rights” firms. The identified firms and groups are politically aligned with the Democratic party’s progressive causes. There is no sign the DoJ is hiring lawyers from groups that advocate for civil-rights related to gun-ownership, property, low taxes, or human life.
The department’s new hires include two lawyers from the ACLU’s voting rights project. They’re now working in the DoJ’s voting-rights office, which has enormous influence on the terms and outcome of voting-related lawsuits around the country.
The 2010 annual report from the ACLU’s voting project says the group’s activities include “litigation, Section 5 comment letters and other communications with the Department of Justice, [plus] lobbying, assisting and coordinating efforts with ACLU affiliates.” The report’s also showed the group was involved in 34 lawsuits in 21 states, and received payments following court victories in at least two lawsuits. ACLU lawyers routinely refer to their group as the nation’s ‘biggest civil-rights law firm.’
The DoJ’s voting section also hired two other lawyers from the D.C-based Advancement Project. The group’s 2009 Form 990 lists its revenues as $5.2 million, and also its activities, which included “discussions to block regressive elections bills and advance progressive election reform… and a limited amount of federal lobbying on the Congress regarding proposed reforms of the Help American Vote Act and the National Voter registration Act.”
Other lawyers were hired by the DoJ office to work in slightly different parallel of law. For example, Aaron Schuham was working as the legislative director for Americans United for Separation of Church and State, and was hired as the deputy chief of the DoJ’s employment litigation section.
The DoJ’s decisions can be very valuable to law-firms, and can make DoJ lawyers more attractive to law firms when they leave. For example, lawyers hired from the ACLU “have been pushing in the education sector of the civil-rights division to extend the federal statutes which bar sex-discrimination to [bar discrimination based on] sexual-gender identity, which the law was never mean to reach,” said Hans Von Spakovsky, a senior lawyer in the civil-rights division during George W. Bush’s terms. “If they can win these cases … these liberal groups will [hire them] … when they leave the Obama administration to pursue those cases,” said Spakovsky, now at the Heritage Foundation.
The revolving-door is neatly illustrated by Joseph Rich, at the Lawyers Committee. He worked for 12 years as the deputy chief in the housing and civil enforcement unit of the DoJ’s civil rights division, “where he was involved in hundreds of fair housing and fair lending cases and helped to develop and implement the Department’s fair housing and fair lending enforcement program after the passage of the 1988 Fair Housing Amendments Act,” according to his resume posted at the committee’s website. He was promoted to run the voting section until 2005, when he resigned, and moved to the lawyers’ committee to run its “fair housing project.”
The committee revenue in 2009 amounted to $7.5 million, of which $480,735 came from legal settlements, said Stacie Royster, the committee’s spokeswoman.
Many of the advocacy groups get the bulk of their revenues from wealthy donors and foundations. But the groups cite their legal successes when soliciting donors, because donors would likely send their money elsewhere if the DoJ made it difficult for them to win lawsuits.
Neither the New York Times nor the National Law Journal published the names of all the new hires, or discussed the “revolving door” between the legal advocacy groups and the DoJ.
Democratic-affiliated advocates do not see the DoJ’s hiring of advocates from self-interested legal firms as a revolving-door problem. “Obama and Holder have done a remarkable job of restoring the Civil Rights Division to its original purpose, and they’ve done it by hiring people who have proved they are so deeply committed to the rule of law that they were doing similar work outside the government,” Adam Serwer, a blogger at the American Prospect, said April 15.
The commingling of private-sector and public-sector professional interests at the DoJ stands in contrast to the post-1960s Pentagon. Under the director of then-defense secretary Robert McNamara, spending decisions were taken away from professional military leaders and placed under the control of long-term career civil servants, who oversee and sign the contracts that are awarded to the defense industry. The resulting Planning, Programming and Budgeting System works alongside various revolving-door rules which restrict efforts by companies to influence the Pentagon’s policies and contracts.
The Pentagon’s revolving-door rules still aren’t strong enough, partly because there’s too little outside supervision, too many exemptions, and too much self-policing, said Scott Amey, general counsel at the Project on Government Oversight, a left-of-center watchdog group. “There are a lot of people who fall through the cracks,” he said. One notable success, he said, came in 2004 when a judge imposed a nine-month jail-sentence on the Air Force’s civilian procurement chief, Darleen Druyun, for quietly negotiating a job offer with Boeing while she was supervising a possible contract award sought by Boeing.
Asked by the TheDC if he knew of any groups watching for revolving-door problems at the DoJ, Amey said “not that I know of.”
The DoJ’s website includes a page describing ethical requirements for employees. It states that “an employee should seek advice from an ethics official before participating in any matter in which her impartiality could be questioned.”
But DoJ officials do not release the number and details of these reviews.
Also, the DoJ’s rules include many loopholes. For example, the rules say that employees should not get involved in an individual lawsuit – dubbed “a particular matter having specific parties” – when the employee is currently seeking employment with one of the parties, or currently has a “close relationship” with a party, or was employed by one of the parties in the last 12 months. But even those wide rules also allow the employee’s superior, with the approval of ethics-officials, to grant written exemptions.
The focus on individual lawsuits, vice policy decisions that effect many lawsuits, is also shown in a separate set of rules that restrict employees’ participation in individual criminal cases where they have “a personal or political relationship with any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution.” This restriction can be lifted with a written exemption.
When asked for details about past exemptions and the exemption process, the division’s press-secretary Xochitl Hinojosa, referred TheDC to the department’s Freedom of Information Act Office.
The DoJ’s rules are somewhat similar to the much-touted ethics rules adopted by the White House in early 2009. The rules sharply restrict the hiring of former company lobbyists for 1,100 top-level jobs, but set much looser curbs for lawyers. For example, the White House rules says newly-hired attorneys can’t participate in decisions about individual court-cases they worked on, but can participate in policy decisions that could create many new cases and legal disputes that help their firms’ revenues.
The White House rules are a big advance over past practice, said Holman, but they don’t “address any specific legal work.”
Many federal lawyers stay only a few years in government before returning to the private sector, said Holman. “They are not going to lobby, but they are going back to the law firms,” he said. ”I don’t see a practical way to prohibit that [movement] and still make government function adequately.”