Letters Sent by Attorney General Could Cause Legal Trouble

They were rejected once. But faced with the revelation that many would-be applicants had been wrongly turned away for political reasons, Attorney General Michael Mukasey invited them to apply again.

Now those invitations -- 167 letters sent to applicants for the department's prestigious Honors Program for 2006 -- could cause the government greater legal heartache as part of a lawsuit stemming from one of the biggest scandals of the Bush administration, the politicization of hiring at the Justice Department.

Click here to see one of the letters.

Plaintiffs argue that top Justice Department officials, including former Attorney General Alberto Gonzales, violated these rejected applicants' rights by taking politics into consideration in the hiring process, a pattern that, at least broadly, was well-documented by the agency's own inspector general (including in Tuesday's report on the civil rights division).

But plaintiffs allege that the Justice Department -- and specifically Mukasey -- have committed a "serious breach of professional responsibility that warrants his immediate attention, internal inquiry, and rectification," by sending out letters in the middle of the litigation.

Department of Justice Wants Lawsuit Thrown Out

The Justice Department has moved to dismiss the entire lawsuit, arguing that some of the plaintiffs were not improperly rejected and that they did not follow the proper department protocol for addressing grievances.

The scandal over the Honors Program erupted after the firing of at least eight U.S. attorneys in late 2006. Those firing led to a series of revelations that the Bush-era Justice Department had routinely taken applicants' politics into consideration in hiring for career-level positions, which are supposed to be based on merit alone.

A 2008 report by the department's Inspector General confirmed these activities with respect to the Honors Program, the singular way for top law school graduates to enter the Justice Department, where they get broad exposure and hands-on training in prosecution. It found that under the Bush administrtion, screening for applicants had shifted from the hands of career attorneys to the politically minded officials in the Office of the Attorney General, who routinely threw out applicants who appeared more liberal leaning.

That's why applicants filed suit last summer in an attempt to hold top officials accountable for the hiring scandal that ultimately led to Gonzales' resignation.

Mukasey Sent Invitations to Applicants to Apply Again

And in an apparent attempt to rectify the problem, Mukasey sent out letters last September inviting all applicants rejected from interviewing with the Honors Program in 2006 to reapply in the 2008, whether or not their rejection had been based on improper political considerations.

"The Department deeply regrets the circumstances surrounding the 2006 Honors Program hiring process," Mukasey wrote. But, the letter noted, "the decision whether to extend you an offer of employment through the Honors Program will be based strictly on merit system principles."

The response was strong: Sixty-three said intially they were interested and 53 ended up accepting interviews. So far 13 of those have been offered jobs and all but one has accepted, and the process is still ongoing, according to the Justice Department.

Yet plaintiffs contend that these letters violate "the ethical prohibition on communication with a represented party on the subject of the representation."

"Despite my interest in working for the federal government, the timing of the letter and the existence of this lawsuit seemed a bit dubious and it made the decision whether to accept the interview much more difficult," said Dan Herber, an attorney with a Minneapolis law firm who applied to the program in 2006 and only joined the lawsuit after he received the letter.

Indeed, one letter landed in the hands of one of the initial plaintiffs, James Saul, now a lawyer with the Midwest Environmental Advocates, who applied for the Honors Program during his third year of law school at Lewis & Clark.

Even though he received a letter, the Justice Department lawyers are trying to dismiss Saul from the lawsuit, saying that his name did not appear on any of the spreadsheets for interviews that year.

But in an affidavit filed in court, Saul states that he is certain he was one of the politically rejected applicants. First of all, he believes he is one of the individuals wrongfully rejected cited by the inspector general report because he says the quote it uses from the unnamed applicant's essay is the exact line he put in his. Second, he states he was interviewed by the environmental torts section of the civil division for a position with the Honors Program in 2006. What's more, he states that during the interview the attorney interviewing him suggested he would be a better fit for the environment and natural resources division than the one he was interviewing for.

"I stated to the interviewing attorney that I agreed with her assessment, but that I did not believe that I had been selected for an interview with ENRD. The interviewing attorney expressed her surprise, remarking to the effect that it was her belief that I had, in fact, been selected for an interview with ENRD."

Though he says the attorney promised to look into the matter, Saul says he never heard back.

The Justice Department declined to comment because the litigation is pending.

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