Update: Kyle D. Sampson


I have updated the statement of facts alleging various ethical violations by Kyle D. Sampson of the Utah and Washington, D.C. Rules of Professional Conduct with the recent report, An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General, by the United States Department of Justice Office of Professional Responsibility and Office of the Inspector General, which concluded that Kyle D. Sampson engaged in conduct during the course of his employment at the Department Justice that calls into question his fitness to practice law.

Personal Information:

  • Name: Sampson, Kyle D.
  • Bar: Utah
  • ID No: 8112
  • Status: Active

Grievance Information: Utah

Grievance Information: Washington, D.C.

Allegations:

Illegal Utilization of political considerations personally and in conjunction with Monica Goodling in Hiring and Firing Personnel at the Department of Justice in violation of the Hatch Act

As originally reported by Dan Eggen in the Washington Post,

“The Justice Department considered political affiliation in screening applicants for immigration court judgeships for several years until hiring was frozen in December after objections from department lawyers, current and former officials said yesterday. “The disclosures mean that the Justice Department may have violated civil service laws, which prohibit political considerations in hiring, for as long as two years before the tenure of Monica M. Goodling, the former aide to Attorney General Alberto R. Gonzales who testified about the practice this week. “Goodling told the House Judiciary Committee on Wednesday that she “crossed the line” in considering political affiliation for several categories of career applicants at Justice, including immigration judges.

* * *

“The department’s hiring practices have come under scrutiny in the furor over the firings last year of nine U.S. attorneys. A Justice Department investigation of the dismissals has been expanded to include whether Goodling and other Gonzales aides improperly took politics into account in hiring for nonpolitical jobs. “Goodling testified that Sampson told her that the department’s Office of Legal Counsel had concluded that immigration judges were not covered by civil service rules. The Justice Department said after her testimony that it had “located no record” of an OLC opinion that reached that conclusion.”

Officials Say Justice Dept. Based Hires on Politics Before Goodling Tenure, Dan Eggen, Washington Post, May 26, 2007

Additional Sources:

Letter regarding Investigation of Kyle Sampson, From U.S. Department of Justice Office of the Inspector General, August 24, 2007

Document Shows Widening Probe Into DOJ Hiring , Paul Kane, Washington Post, August 30, 2007

This has now been confirmed by the United States Department of Justice Offices of Professional Responsibility and Office of the Inspector Generals in their report, An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General:

We concluded that Sampson violated Department policy and federal law, and committed misconduct, by considering political or ideological affiliations when hiring IJs. Sampson knew that, historically, most IJ hiring was handled by career employees at EOIR. However, he moved that authority from EOIR and placed it in the OAG. Sampson told us that he had understood it was appropriate to consider “political criteria” in selecting IJs. He stated that his understanding was based on a conversation he had with Ohlson in April 2004 about the Attorney General’s direct appointment authority for IJs, combined with advice he claimed to have received from OLC that IJ hiring was not subject to civil service requirements.

However, as detailed above, Ohlson said he did not tell Sampson that direct appointments were exempt from federal civil service laws. Ohlson said he merely noted to Sampson that direct appointments had been used occasionally in the past to appoint IJs. Nor does the evidence support Sampson’s claim that OLC advised him that civil service laws did not apply to the career IJ positions. Neither OLC nor we could find any record of OLC ever providing such advice to Sampson, and the two officials he identified as possible sources of the advice – AAGs Goldsmith and Levin – had no recollection of advising Sampson that civil service laws did not apply to IJ hiring. To the contrary, the evidence showed that neither would have offered legal guidance on this point informally. While it is possible that Sampson mistakenly inferred on his own that civil service laws did not apply to direct appointments by the Attorney General, there is no evidence that he was ever so advised by OLC.

Moreover, as described in the document attached to his October 8, 2003, e-mail, Sampson sought to use the Attorney General’s direct appointment authority to appoint candidates as IJs who had been recommended by the White House and screened using political criteria
well before those conversations with OLC and Ohlson supposedly occurred. It is clear from Sampson’s October 8 e-mail that he contemplated using political considerations in IJ hiring at least 6 months before his conversation with Ohlson; at least 9 months before Levin (one
of the OLC Assistant Attorney Generals he cited as a possible source of OLC’s legal advice) became the head of OLC in July 2004; and before any conversation he had with Goldsmith (the other OLC Assistant Attorney General cited by Sampson), who did not begin serving in OLC until October 3, 2003, just 5 days before Sampson’s e-mail.

In sum, we concluded that the evidence did not support Sampson’s claim that he was advised by OLC that IJ positions were exempt from federal law governing career civil service positions.

Because the Attorney General’s direct appointment authority to hire IJs is a departure from the usual Department career hiring practices, we considered the possibility that Sampson may have been confused or mistaken about whether civil service laws apply to such hires. Yet, even if Sampson was confused or mistaken in his interpretation of the rules that applied to IJ hiring, we do not believe that would excuse his actions. His actions, which were carried out over a lengthy period of time and were not based on formal advice from anyone, systematically violated federal law and Department policy and constituted misconduct.

Report, pp. 117-118.

In sum, the evidence showed that Sampson, Williams, and Goodling violated federal law and Department policy, and Sampson and Goodling committed misconduct, by considering political and ideological affiliations in soliciting and selecting IJs, which are career positions protected by the civil service laws.

Report, p. 137.

Rules Violated (Pursuant to Rule 8.5. Disciplinary Authority; Choice of Law , Utah Rules of Professional Conduct):

  1. Rule 8.4 – Misconduct – This Rule governed the practice of law in the District of Columbia from January 1, 1991, through January 31, 2007. As of February 1, 2007, the New Rules took effect.

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11 Responses

  1. em,
    what do you think the chances are that goodling and sampson will be disbarred? i posted a diary about this tonight at the raisin (nothing gets me more excited than a gonzogate story! :) ), and in researching it, i read that there are people who are calling for them not only to be disbarred, but for them never being able to profit from what they did through writing books or giving speeches about it. i am hoping that a lot of people who were involved go to jail.
    p.s. who is williams?

    In sum, the evidence showed that Sampson, Williams, and Goodling violated federal law and Department policy

  2. Hey, Nonnie,

    Thanks for the comment, but make sure you include a link to your post. Please check out Nonnie’s movie posters: They’ll help you laugh to keep you from crying.

    To answer your questions, it is growing increasingly likely that there will be disciplinary actions against Sampson and Goodling, especially as they get closer to being indicted and convicted. As far as profiting from any books, speeches, etc., the First Amendment will likely prevent any restrinctions. I believe that even the ‘Son of Sam’ laws – which prevent people convicted of klling someone from profiting from sales of books about their exploits – have been found unconstitutional.

    Re: your PS: That would be Jan Williams. From the same report, pages 118 – 120::

    Similarly, Jan Williams violated Department policy and federal law by considering political or ideological affiliations in the appointment of IJs. When Williams became the Department’s White House Liaison in April 2005, Sampson delegated to her much of the responsibility for identifying and selecting IJ candidates. Most of Williams’s duties involved finding candidates for political appointments, whether Schedule C or non-career SES. Williams stated to us that she did not know that IJs were not political positions. She said that Sampson directed her to contact the White House to obtain candidates for IJ positions. She said that “Mr. Sampson is a lawyer and as Chief of Staff to the Attorney General I assumed that if he had asked me to call someone, it was appropriate for me to do so.”

    Like Sampson, Williams turned to the White House Office of Political Affairs and the White House Presidential Personnel Office to obtain candidates for IJ positions. As with Sampson’s candidates, Williams’s selections indicated that Republican Party affiliation was critical to the selection process, even more important than experience with immigration law. When the White House was not able to identify candidates, Williams turned to other Department political appointees and to the Federalist Society, while ignoring the candidates supplied by EOIR, which was becoming increasingly desperate to fill vacancies as the immigration case load continued to grow. When one Department political appointee provided names of potential IJ candidates, Williams responded “are they like you and me?”

    We found that Williams used political criteria to screen candidates for IJ positions. However, Williams was not an attorney and was following her supervisor’s guidance. Moreover, the politicized system for selecting IJ candidates was already in place when she inherited that responsibility. Under these circumstances, we concluded that she did not commit misconduct in her selection of IJ candidates.

    However, we had concerns about the accuracy of Williams’s statements to us. Prior to being questioned by us about IJ hiring, Williams read into the record a prepared statement. In that statement, she made numerous representations concerning her role in the hiring of IJs. Many of those representations were inaccurate. Other statements she made in response to our questions were also inaccurate. After the interview, Williams sent us an e-mail that was not accurate, as the
    evidence detailed below shows.

    In her prepared statement, Williams claimed that she had been “open to candidates from all different sources.” She also claimed that she would “ask [EOIR Deputy Director] Ohlson to brainstorm with me about ideas for openings,” and that she “actively considered” applicants who applied in response to the public announcements. The evidence, however, showed that Williams was only open to candidates recommended by the White House or by fellow political appointees. The evidence also showed that Williams did not “actively consider” individuals who applied in response to the public announcements for IJ vacancies. To the contrary, she ignored the packets of applicant résumés forwarded to her by Ohlson from these announcements. We found no evidence that any of those applicants were considered in any way unless they were independently recommended by a source Williams knew to be Republican. Further, we found no evidence that Williams asked to “brainstorm” with Ohlson for ideas on candidates for vacancies, and Ohlson denied that she did. Williams consulted with the White House Office for Political Affairs, and with the Federalist Society, but not with EOIR. Under the process implemented by the OAG, EOIR and Ohlson’s role were confined to processing the presumptive hires who had been selected by Williams, and to pleading with Williams to consider packets of applicant résumés because EOIR was in need of additional IJs to handle a increasing case load.

    During our interview of her, Williams elaborated on her claim that she sought candidates from EOIR: “I remember saying ‘Kevin [Ohlson], don’t you have anyone [for an IJ position]?’” and “I remember asking Mr. Ohlson on several occasions, ‘don’t you have any candidates for this post[?]’” Again, as detailed above, we found the exact opposite was true. Williams asked only for the locations of vacancies and then selected the candidates to fill those vacancies. The evidence showed that Ohlson had to plead with Williams for candidates, that Williams did not consider the packets of applicant résumés that Ohlson offered, and that Williams ignored specific candidates recommended by Ohlson.82

    Williams’s testimony concerning the Nexis search string she provided to Goodling was also inaccurate. As detailed above, at our interview we showed Williams a copy of the e-mail she sent to Goodling on April 10, 2006, in which Williams provided the Internet search string detailed above. In the text accompanying this search string Williams wrote: “This is the lexis nexis search string that I use for AG appointments.” After reviewing the e-mail, Williams told us that she did not recognize the search string and did not remember sending it to Goodling. She stated that she did not know what she meant when she wrote “AG appointments,” but asserted that it did not include IJs. At the end of the interview, we asked her to review the document again. She reaffirmed that she did not remember ever using the search string on any candidate.

    In an e-mail Williams sent the day after the interview, she claimed that she used the search on one candidate for a political position in the Environment and Natural Resources Division (ENRD) and that she deleted from the search “words that I thought were not appropriate . . . taking [out] words like homosexual, religious, and similar social and/or personal ‘buzz words.’”

    Williams’s explanation is not accurate in several respects. Her claim that she deleted “buzz words” from the single search she acknowledged conducting is contradicted by evidence we received from LexisNexis. That evidence shows that Williams conducted 24 additional searches using the search string, and each time the search included terms such as “homosexual” or the other “buzz words” identified by Williams.

    81 As noted earlier, Whelan, the Acting AAG at OLC prior to Goldsmith’s appointment, told us that he (like Goldsmith and Levin) had no recollection of advising Sampson that civil service laws did not apply to IJ hiring.

    82 As detailed above, starting in July 2005, Ohlson sent a series of e-mails to Williams stressing the need to fill IJ vacancies because of the “tremendous pressure” of EOIR’s growing caseload. In a July 22, 2005, e-mail to Williams, Ohlson repeated this theme, and suggested that Williams authorized a “nation-wide advertisement soliciting applications for IJ positions.” He reassured her, however, that the process would only create a pool of applicants, and that Williams would retain her ability to select candidates to be hired. Even so, Williams did not act on the packets of résumé applications Ohlson forwarded to her.

  3. […] Update: Kyle D. Sampson […]

  4. are statements given to the inspectors general given under oath? can williams be charged with perjury? i am hoping that one of them will crack and tattle on the others. maybe she, not being an attorney, will be the one who will get scared and will point the finger at a lot of people in the white house who were complicit.

  5. Nonnie,

    I don’t know if statements given to IGs are under oath or if it is a crime simply to lie to an IG as it is to lie to an FBI agent or Congress. However, she most likely still faces the same criminal liabilities that Sampson and Goodling do due to her own actions.

    What you describe – i.e., someone cracking under pressure from law enforcement to roll over on someone higher in the food chain – is how they fight organized crime, which seems to be an appropriate strategy here for several reasons.

  6. E.M., speedy response! I’m impressed as usual. I read DOJ report ( http://www.usdoj.gov/opr/goodling072408.pdf ). It’s pretty sickening.

    As A#1 legal blogging pundit in al, how do you see the OPR/ OIG performance on this investigation?

    Any indication DoJ is cleaning up there act?

    Any chance the Siegelman investigation will go as well? Or is turdblossom not expendable at this juncture? Are middle and northern district prosecutors off limits, too precious still to “the girls?”

    Be brutal, this is for posterity. ;-)

  7. ok, insert between “to” and “the” the words “administration as”

    Went too fast. A little excited.

  8. Ok, add the DOJ indictment of Ted Stevens into the mix. Do you think this is supposed to serve as a balancing act in finding nothing wrong in Alabama?

  9. […] Update: Kyle D. Sampson […]

  10. […] Update: Kyle D. Sampson […]

  11. […] Update: Kyle D. Sampson […]

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