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In an intriguing bit of Orwellian-speak, Mukasey told an American Bar Association audience that "not every wrong, or even every violation of the law, is a crime." Funny, the Merriam-Webster dictionary contradicts the AG, stating that a crime is (emphasis added) "an act or the commission of an act that is forbidden or the omission of a duty that is commanded by a public law and that makes the offender liable to punishment by that law."
And the hiring practices were a clear violation of the law, as the DOJ's internal investigation reported last month.
Mukasey also suggested that failure to penalize the officials who broke the law is an illustration of the adage that "two wrongs do not make a right."
While I think that Monica Goodling is the wrong lens through which to view this mess (as most media are doing), the law that was broken dates to the 1870s. A reminder, Mr. Attorney General: the law broken -- what you described as "only violations of the civil service laws" -- was designed specifically to keep the "spoils system" out of the day-to-day running of the government.
Breaking this law is not a trivial matter, like jay walking. Civil servants are supposed to be judged on merit, not politics. What of their derailed careers?
The NY Times reports that Beth Slavet, former chairman of the Merit Systems Protection Board, believes an independent review is called for. “Someone needs to clean up this mess that the Justice Department created, and I don’t think what Mukasey is doing goes far enough," she said.
There has been an exodus of political appointees from the DOJ, not the least being former AG Gonzales, as the result of this, and other, DOJ atrocities under this Administration. When nominated as the new AG, Mukasey was hailed by many as someone who would return integrity to the nation's top office of law enforcement. His announcement today suggests that faith was a case of misplaced hope.
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Comments
This reinforces my conviction that the USA fails at one of the main criteria to recognize a democracy: the rule of law. There is no real rule of law in the USA (this is nothing new, unfortunately). Most criminal cases have political after thoughts, judicial nominations are politically motivated and the executive power completely shuts down the legislative one and subverts the judiciary. This, incidentally, also breaches another major democracy criteria: the strict separation of powers.
Dear Ms. Gill:
The Merriam-Webster Dictionary, fine tome that it is, is not what defines criminal offenses. In the contest of Mr. Mukasey’s powers, criminal offenses are defined by the federal criminal code. One can violate non-criminal laws without committing a criminal violation.
Every civil lawsuit, for instance, involves a party asserting that another party has, is, will, or might violate the law–be it a statute, a contract, a common law right, etc. Civil service protections are important, but violations of it are not criminal. The acts involved might be criminal for other reasons, but not per se because they are violations of civil service rules.
Love, Ed Rendell
Hi, Ed … yes, I searched the Hatch Act last night for references to “prohibited personnel practices.” The penalty, which is set by Congress, not the DOJ, is
(1) being fired
(2) 5 year prohibition against job in government
(3) $1,000 civil fine
Thus, in the common use of the word, these acts were illegal _and_ a crime.
It’s still an example of Orwellian-speak, even if it is how lawyers talk. Perhaps that’s one of the reasons the Beltway has become so corrupt.
Dear Ms. Gill:
You are ASSUMING a Hatch Act violation occurred. This is a finer distinction of law than you are presenting it as.
The Hatch Act prohibits political campaigning and other activities by federal employees. Inquiring about loyalty to the President or opinions aren’t campaigning or partisan political work: in certain (but not all) contexts they are inappropriate and violate the civil service laws. But someone must be doing an activity specificaly prohibited for federal employees to be in violation of the Hatch Act.
This might be doublespeak to someone who believes that a wrong has been committed, so there must be someone held criminally liable. Unfortunately, one needs to prove elements of an offense and sometimes those elements do not prohibit acts that are outside the spirit of the law.
The Office of Special Counsel has a page that gives a list of prohibited activities from the statute. http://www.osc.gov/ha_fed.htm You might consider activities done by someone like Ms. Goodling to violate some of them, but she would say that she was insuring that candidates for jobs are supportive of the President’s priorities–which is a valid question. Even if there is a violation, it would be difficult to prove and there is no certainty that facts put on the record would satisfy the elements of a Hatch Act offense.
As to unqualified candidates getting federal jobs and packing of departments with cronies: welcome to government. Democrats do this, too. Civil service rules are meant to provide some protection, but for positions like lawyers there aren’t going to be simple objective tests and a lot of mischief goes on. But it is mischief that is legal under the Hatch Act. Here, where you have admissions, clearly the civil service rules were violated–but a violation of the civil service rules does not a criminal violation make.
Mr. Rendell and Ms. Gill,
I am the current “dean” of federal whistleblowers (google my name for details if you wish) and the chair of the Office of Special Counsel (OSC) Watch steering committee (put precede with “www” I also have a related blog (do not precede with www).
The Hatch Act is not material to the civil service laws and DOJ regulations violated. Hatch Act violations are quite distinct from agency violations of the “merit systems principles” of the federal civil service – also called “prohibited personnel practices” that did widely occur in DOJ hiring/detailing decisions.
DOJ does not have primary jurisdiction over the civil service laws, the US Office of Special Counsel does. Their violation is not a criminal violation, just like speeding is not a criminal violation, even if it is a “crime.”
But the “system that failed” as described by Mr. Mukasey goes beyond DOJ and includes OSC and MSPB, because they are the agencies with primary responsibility for the relevant civil service laws. I criticize Mr. Mukasey for not saying that the faults manifested in DOJ likely go beyond DOJ and likely include OSC and MSPB.