Accountability Probe Slams Culture of Partisanship at the Justice Department

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The Office of the Inspector General finds a climate of "polarization and suspicion" in the Voting Rights Section.

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Reuters

The Justice Department's Office of the Inspector General has just released the results of its long and detailed investigation into allegations of partisanship, political discrimination, and old-fashioned unprofessional misconduct by employees within the Voting Rights Section. Here is the link to the report.

The good news for the Obama Administration, and especially for Attorney General Eric Holder, is that OIG investigators concluded that there is "insufficient support for a conclusion that Division leadership in either the prior or current administration improperly refused to to enforce the voting rights laws on behalf of any particular group of voters, or that either administration used the enforcement of voting laws to seek improper partisan advantage."

But the bad news for the Obama Administration, and especially the Attorney General, is that the OIG investigation "revealed several incidents in which deep ideological polarization fueled disputes and mistrust that harmed the functioning of the Voting Section." This is significant because it suggests that the grave harm to the credibility and reliability of Justice Department lawyers caused by the Bush Administration's U.S. attorney scandal -- the self-defeating promotion of partisanship over professionalism -- has not been adequately remedied by the Obama Administration.

Here is the heart of the matter, from the final paragraph of the OIG report:

The conduct that we discovered and document in this report reflects a disappointing lack of professionalism by some Department employees over an extended period of time, during two administrations, and across various facets of the Voting Section's operations. In the Department, professionalism means more than technical expertise - it means operating in a manner that consciously ensures both the appearance and the reality of even-handed, fair and mature decision-making, carried out without regard to partisan or other improper considerations.

Moving forward, the Department's leadership should take steps consistent with the findings and recommendations contained in this report to ensure that the actions and decisions of the Section and its employees meet the standards of professionalism and impartiality that are rightly expected and demanded by the public of the Department of Justice.

Here are some details from the conclusions of the OIG report (which you can read for yourself starting at Page 251):

We believe that the high partisan stakes associated with some of the statutes that the Voting Section enforces have contributed to polarization and mistrust within the Section. ... We found that people on different sides of internal disputes about particular cases in the Voting Section have been quick to suspect those on the other side of partisan motivations, heightening the sense of polarization in the Section. The cycles of actions and reactions that we found resulted from this mistrust were, in many instances, incompatible with the proper functioning of a component of the Department. ...

Polarization within the Voting Section has been exacerbated by another factor. In recent years a debate has arisen about whether voting rights laws that were enacted in response to discrimination against Blacks and other minorities also should be used to challenge allegedly improper voting practices that harm White voters. Views on this question among many employees within the Voting Section were sharply divergent and strongly held. Disputes were ignited when the Division's leadership decided to pursue particular cases or investigations on behalf of White victims, and more recently when Division leadership stated that it would focus on "traditional" civil rights cases on behalf of racial or ethnic minorities who have been the historical victims of discrimination. ...

The polarization and suspicion became particularly acute during the period from 2003 to 2007, including when Bradley Schlozman supervised the Voting Section in his capacity as Principal DAAG and Acting AAG. As detailed in a prior report by the OIG and OPR, Schlozman illegally recruited new attorneys into the Voting Section and other parts of the Division based on their conservative affiliations. As was evident from the e-mails we cited in our earlier report, Schlozman's low opinion of incumbent career attorneys in the Voting Section was based in significant part on their perceived liberal ideology and was not a well-kept secret. During this review, we found that Schlozman's decision to transfer Deputy Section Chief Berman out of the Voting Section in 2006 was motivated at least in part by ideological considerations.

In January 2009, a new President was inaugurated and, soon after, new leadership took office in the Department and the Division. A transition team memorandum that was provided to the incoming Department leadership advised them that, in reviewing the career leadership in the Division, "care should be taken to insure that any changes will protect the integrity and professionalism of the Division's career attorneys and will not be perceived as the politicization pendulum just swinging in a new direction." Despite this admonition, we found that the polarization in the Voting Section continued, as evidenced by several events...

Although we did not conclude that substantive enforcement decisions in the Voting Section during the period of our review were infected by partisan or racial bias, we believe that the perception remains that enforcement of the voting laws has changed with the election results. Much of this perception is a byproduct of legitimate shifts in enforcement priorities between different administrations. However, some of it has been fed by the incidents of polarization, discord, and harassment within the Voting Section described in this report. It is precisely because of the political sensitivity of the Voting Section's cases that it is essential that Division leaders and Voting Section managers be particularly vigilant to ensure that enforcement decisions - and the processes used to arrive at them - are, and appear to be, based solely on the merits and free from improper partisan or racial considerations. ...

We do not believe that ideological polarization and bitter controversy within the Section are an inevitable consequence of the high political stakes in some Voting Section cases. Other Department components - including components that specialize in subject areas that are also politically controversial, such as environmental protection - do not appear to suffer from the same degree of polarization and internecine conflict. We believe the difference is largely a function of leadership and culture, and that steps must be taken to address the professional culture of the Voting Section and the perception that political or ideological considerations have affected important administrative and enforcement decisions there.

We were surprised and dismayed at the amount of blatantly partisan political commentary that we found in e-mails sent by some Voting Section employees on Department computers. We recognize that Voting Section employees, no less than other Department employees, are entitled to their individual political views. However, the importance of separating such views from Section work is paramount. Government e-mails are readily forwarded and reproduced, and political commentary that is intended to be private may quickly become public, which could further exacerbate the appearance of politicization in the Section and undermine the public's confidence in the Department.

So far, Holder has refused to directly address the conclusions contained in the report. Instead, he has allowed Assistant Attorney General for the Civil Rights Section Thomas Perez to respond. (You can read Perez's response in Appendix A to the report). To the OIG, Perez wrote: "Notwithstanding our agreement that you have identified several instances of unacceptable conduct, we do have concerns about other aspects of your examination of these issues, which we describe further below."

This is unacceptable. Eric Holder cannot remain silent on this. The attorney general is responsible for both the successes and the failures of the Justice Department. And today's report highlights a serious, continuing failure on the part of the current leadership there to restore the department's once-heralded reputation for hiring and promoting only the most professional public servants. "At least we are better than Bradley Schlozman" is no standard for a Justice Department.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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