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Former DoJ Official: I Left Due to "Institutional Sabotage"

Why I Left the Civil Rights Division
Bob Kengle

During our interview I told you that I left my position as a Deputy Chief in the Voting Section of the Civil Rights Division in April 2005 after I reached my "personal breaking point". No doubt many of your readers envisioned a deranged federal office worker running amok in some dark corridor, but I'm afraid the reality was far less colorful, though more distressing. I spent over twenty years in the Civil Rights Division because it is a unique institution with which I identified not because it was perfect, but because it sought to advance a genuine public good above the political fray. I reached my "breaking point" when I concluded that I no longer could make that happen. I have not previously elaborated on my reasons for leaving the Civil Rights Division, but it seems now to be the right time to do so.

In short, I lost faith in the institution as it had become. This was not the result of just one individual, such as Brad Schlozman, although he certainly did his share and then some. Rather, it was the result of an institutional sabotage after which I concluded that as a supervisor I no longer could protect line attorneys from political appointees, keep the litigation I supervised focused on the law and the facts, ensure that attorneys place civil rights enforcement ahead of partisanship, or pursue cases based solely on merit.

1) I no longer could insulate the line attorneys I supervised from the political appointees.

From 2001 on there were repeated occasions on which I discovered after the fact that front office personnel (that is, the political appointees) had directly contacted attorneys I was supervising without first advising me or the section chief. Before this Administration such contacts were extremely rare and generally only occurred under exigent circumstances. This was a serious problem for several reasons. First, the front office personnel lacked the specialized litigation experience needed to successfully litigate voting rights cases at the highest level. Even if such direct contacts were well-intentioned, the political appointees' judgment often was poorly informed. By first discussing a matter with me or the section chief we could ensure that the appointees were aware of the relevant legal, factual, policy and tactical considerations before any directions were given to the line attorneys. What may appear to be a good argument in a particular case may be inconsistent with longstanding positions that in fairness should be adhered to absent a convincing reason to change. States, political subdivisions and public officials (who are the parties against whom the Voting Section generally litigates) have every right to expect the Department to be consistent. Ad hoc arguments are de rigeur for private litigants but the Department must be judged by a higher standard. Direct contacts with the line attorneys undermine these policy considerations.

Worse, such contacts could be less than well-intentioned, often seeming to occur after the front office had obtained some piece of information, or received a question or "helpful suggestion" from Republican officials or attorneys. This was a particular problem in a highprofile redistricting case involving the State of Georgia that we litigated from 2001-2003. I felt that it took every bit of my abilities to prevent the Voting Section from being hijacked in that case by pressure from the Georgia Republican Party. While I believe that with the unwavering support of my section chief Joe Rich I was successful in doing so, by late 2004 I became convinced that we no longer would be able to intercede in the same way.

I also was very concerned that increased interaction between line attorneys and political appointees would result in retaliation against line attorneys who did not toe the line. The Civil Rights Division historically had been structured so that part of my role as a supervisor was to be a buffer against such conflict between political appointees and line attorneys, who could then be evaluated by the quality of their work rather than the extent to which they were "team players" with the Administration. If there was a price for disagreeing with the front office, it was mine to pay – not the attorneys I supervised. In bypassing the section chief and deputy chiefs the front office seriously (and in my view quite deliberately) undermined the institutional safeguards protecting the Section's career staff.

2) I lost confidence that any litigation I supervised would be resolved based upon the merits rather than partisan factors.

Happily, many matters involving the Voting Section do not implicate partisan concerns, and the career staff have managed to bring and win several very good cases in the past two years that appear to have been unaffected by partisanship. My docket, however, tended to include high-profile cases in which such partisan pressures were a repeated diversion, and my personal conclusion by late 2004 was that my judgment and recommendation no longer would be sufficient to keep partisan influences at bay in my cases.

The Voting Section tends to attract attorneys with a strong interest in politics. However, I can say with no hesitation that I never in more than 20 years in the Voting Section made a recommendation based upon the likely partisan outcome, and I expected any attorney I supervised to check such considerations at the door. For example, in the Georgia case to which I referred above the Voting Section was aligned in part with intervenors represented by the top Republican lawyers in the State of Georgia, against the State of Georgia and a state senate redistricting plan passed by its Democrats. The Voting Section argued that the senate plan unnecessarily jeopardized black voters' ability to elect candidates in three districts. At the same time, the Voting Section did not join those intervenors in opposing Democratic Congressional and state house redistricting plans that also were at issue. The difference in those positions was a principled one, as shown by the district court's decision adopting the Department's position (the Supreme Court vacated the district court's decision after deciding to invent a new legal standard, later overturned by Congress when it renewed portions of the Voting Rights Act in 2006). The team that litigated the case included line attorneys who were Democrats and at least one Republican, and while the case was positively swimming in partisan cross-currents, our recommendations were based completely on the law and the facts, not the partisan outcome -- and I never had to say a word to the line attorneys to make that happen; it simply was ingrained (I admit to some pride in attending a hearing in 2006 at which Cong. John Lewis and other colleagues of his stated that the Voting Section's position had been the correct one, so far as black voters' interests were concerned, notwithstanding some statements he previously made that had been used to support the State's position).

But by late 2004, I did not believe that I could ensure that following the law and facts would remain a higher priority than partisan favoritism. This was based partly upon my expectation that the Administration, if returned to office, would feel less constraint against heavy-handed management and biased enforcement than had been the case in the aftermath of the controversial 2000 election. To put it bluntly, before 2004 the desire to politicize the Voting
Section's work was evident, but it was tempered by a recognition that there were limits to doing so. That such constraints diminished over time is evidenced by the well-known and ham-fisted handling of decisions involving Texas' congressional redistricting plan in late 2003 and Georgia's voter ID law in 2005. My concerns also were greatly magnified by the evident intention of the political appointees to replace Joe Rich after the 2004 election with a new section chief who would be a willing "team player".

3) I lost confidence that the hiring process would bring in attorneys who placed civil rights enforcement over partisan considerations.

The takeover of hiring by political appointees has been documented elsewhere, so I don't feel that I need to repeat it. As someone hired during the Reagan Administration under the tenure of William Bradford Reynolds – a controversial period for reasons of ideology – I am reluctant to conclude that new hires should be judged simply by the people who hired them (as an aside, more than a few old hands in the Civil Rights Division now look back on the battles of the Reynolds era as hard-fought but highly professional by comparison to this administration, a real through-the-looking-glass experience).

Recent news, however, suggests that the culture of the Civil Rights Division has changed to one in which partisan advocacy was openly tolerated, if not encouraged, among new hires, at least until it was exposed. Thus, my concerns unfortunately appear to have been realized. It is a menace to the historic credibility of the Civil Rights Division (which I can tell you was a real thing and part of what made being a Division lawyer different), and especially the Voting Section, if its line attorneys come to be viewed by federal courts, by state and local governments and by the general public as just a bunch of Administration flunkies. It is an even greater danger if that is true. I am hopeful that with responsible leadership at the Division level the Section's staff will one day regain its reputation for impartiality. And I am pained by the thought that the reputation of former colleagues who still remain in the Voting Section may suffer in the meantime.

4) Policy decisions to pursue or avoid pursuing certain cases or types of cases.

In a chapter that I co-authored with Joe Rich and former colleague Mark Posner in The Erosion of Rights, released earlier this year and available from the Center for American Progress, we discuss in detail the (public) voting rights enforcement patterns of this Administration. As we discuss, in addition to the notorious Texas and Georgia Section 5 decisions, there are also great concerns about the lack of cases involving discrimination against African-American and American Indian voters, the use of the NVRA (Motor Voter Act) to pursue chimerical suspicions of vote fraud and the use of the Department's imprimatur to serve as an amicus curiae cheerleader for Republican litigants. I won't discuss recommendations that never made the public record but I will say that these also heavily influenced my decision to leave DOJ.

Furthermore, I was outraged by the Administration's very deliberate decision to do nothing to prepare for the reauthorization of Section 5 of the Voting Rights Act, a critical federal protection for minority voters in states with a history of voting discrimination. The Voting Section far and away is the key player in Section 5 enforcement and has unique institutional knowledge. As a private citizen I was able to play a role in the renewal hearings in 2006, but had I remained in the Voting Section I would have been prohibited from developing a record to help Congress make its decisions. By 2004 the political appointees also had become increasingly antagonistic toward many of the professional Section 5 analysts and Section 5 attorney staff in the Voting Section, a campaign that appears to be continuing to worsen as a result of attrition and transfers.

In fairness I have the impression that the general climate in the Civil Rights Division under Assistant Attorney General Wan Kim and other new front office personnel has improved somewhat over its predecessor. But with the bar having been lowered so near the ground I cannot say if that is meaningful.

I am encouraged by the recent resumption of genuine Congressional oversight, and I am grateful for the attention that has been paid to the problems in the Civil Rights Division and the Department generally in recent weeks by you and other journalists. Joe Rich in particular has done a public service in his testimony, something that for such a long-time veteran of the Division is a hard thing to do. I hope that your readers find this informative, and will understand and support a return to a Justice Department that aspires to the impartial administration of our
country's laws.