On March 23, 2005, an explosion at a BP refinery in Texas City, Texas killed 15 and injured more than 170. The EPA found that BP had failed to install equipment mandated by the Clean Air Act to prevent the release of potentially explosive chemical vapors. As part of a felony plea agreement, BP paid $50 million in fines.

On March 5, 2006 a 200,000 gallon leak from a BP pipeline on to the arctic tundra was discovered in Prudhoe Bay, Alaska. The spill occurred over 5 days and was the result of BP skimping and cutting corners on routine maintenance over a period of years. In August 2006, a second spill occurred in the eastern part of the North Slope field. For these, BP pled guilty to a misdemeanor and paid $20 million in fines. A November 10, 2008 McClatchy article reports that the Justice Department terminated the investigation early going for a misdemeanor rather than a felony charge (which investigators thought they could get if given more time to process the evidence). The DOJ also accepted a fine amount which was substantially lower than that recommended by the EPA.

What this goes to show is that in spite of BP being a really bad corporate citizen and repeated offender, killing its workers, screwing its customers, and poisoning the environment, it was essentially let off by the Bush Justice Department. While $373 million may seem like a lot, BP’s gross profits for 2007 alone came to more than $31 billion, and the fine settled the government’s claims against it for the preceding 3 years. Looking at it from this longer perspective, BP executives could write it off as an acceptable cost of doing business.

The story began back in July 2007 when two banks (North Fork and HSBC) that Spitzer had had run ins with as New York Attorney General reported “suspicious” money transfers involving Spitzer who became Governor of New York on January 1, 2007. This led to a prostitute service Emperors Club VIP. Now while Emperors was laundering money, Spitzer wasn’t. And whether you agree with this or not, it is extremely unusual for this type of investigation to target johns, and even more unusual to target one john in particular, as happened here.

On March 10, 2008, Spitzer’s involvement with high priced prostitutes became public. Two days later on March 12, 2008, he announced his resignation as Governor. The prostitute story had been leaked from Garcia’s office and was based on Grand Jury testimony. The first is a violation of department rules, the second of federal law. Garcia, a protégé of Michael Chertoff, held out the possibility of a prosecution of Spitzer under the Mann Act. This 1910 law prohibits the transport of women across state lines for “immoral” purposes. Spitzer saw one prostitute on a trip to Washington, DC. The Mann Act has been used in the past to harass controversial figures, such as heavyweight boxer Jack Johnson in 1920 and Charlie Chaplin in 1944. Nowadays it is prescribed by the federal Attorney’s Manual only if there is an aggravating factor, such as underage children or kidnapping, involved. In Spitzer’s case, there was no aggravating factor.

As New York’s Attorney General, Spitzer made his reputation aggressively taking on Wall Street interests. His real effectiveness in reforming the Street is debatable, but it is clear that he was hated there. That two banks he had won cases against reported him, that a Republican US Attorney Michael Garcia committed major resources into a long term investigation of him in the absence of a prosecutable crime, or even the anticipation of finding one, that the story broke on the basis of a leak that could only have come from Garcia’s office (and let’s face it either with Garcia’s knowledge or implicit consent), and that Garcia pulled the plug on his investigation two days after the November elections, all indicate a vendetta, a politically motivated one on the part of Garcia.

Now make no mistake, I have no sympathy for Spitzer or with whom he has sex. His behavior was stupid and hypocritical, perhaps not in the way that “family values” Republicans like Mark Foley (item 20), David Vitter (item 214), and Larry Craig (238), were, but his actions ran counter to his public image as a “reformer” and straight arrow which had won him the governorship. My real problem is with Garcia the US Attorney. Garcia used his office for political purposes, first in focusing on Spitzer and then leaking his name to the press. This was the business of a Larry Flynt or the New York Post, not the US Justice Department.

Eid’s actions, or rather lack thereof, raise two interesting questions. Would he have done the same if these men had been discussing the assassination of a Republican, like George Bush or John McCain? And would he have declined to press conspiracy charges if the men had had Middle Eastern sounding names instead of being homegrown domestic terrorists?

On April 9, 2007, DOJ lawyers wrote a letter to Patrick Leahy and John Conyers, the Chairs of the Senate and House Judiciary Committees respectively complaining that their recommendations had been passed to the Deputy Attorney General Paul McNulty’s office where they had been dramatically cut. On December 5, 2006, supervisors met with Michael Elston, McNulty’s Chief of Staff (see item 2). Elston told them they had not “done their jobs” and that he had to have a “screening panel” to go over and “research” the candidates. Later, comparing those accepted to those who were not, the letter writers noted, the “one common denominator appeared repeatedly.” Rejected applicants, some who were summa cum laude at Harvard and Yale, had Democratic and liberal associations.

On June 24, 2008, the DOJ Inspector General (OIG) and the Office of Professional Responsibility (OPR) issued a report on this matter. It found that for the Honors Program in 2002 of 911 recommendations 307 were deselected; in 2003, of 635 only 6 were deselected; in 2004 of 572 only 13 were deselected. In 2005, rejections began to increase. Of 624, there were 46 deselections.

Finally, in 2006 (the year to which the Congressional letterwriters referred), of 602 candidates recommended, 186 were rejected. The report found that applicants with liberal affiliations (83 out of 150) were rejected at 3 times the rate of conservative ones (5 out of 28): 55% to 18%.

With regard to SLIP, in 2006, of 451 recommended candidates 202 were rejected. As with the Honors Program, rejections in the previous 3 years were low and ranged between 10 and 23. Similarly, the only other year with a high rejection rate was 2002 where 185 out of 498 were deselected. 82% of those with liberal affiliations (56 of 68) were rejected. 13% of those with conservative ones (2 of 16) were deselected.

In 2006, the “screening committee” was chaired by Michael Elston and had two members: Daniel Fridman, a career prosecutor and Assistant USA for the Southern District of Florida detailed to McNulty’s office and Esther Slater McDonald, Counsel to the Acting Associate Attorney General Bill Mercer (see item 197). Fridman was found to have acted appropriately and to have communicated his concerns in a professional way. The report found that McDonald who was “at the Department less than a month when she received this assignment and was only 3 years out of law school” had

inappropriately evaluated candidates based on the candidates’ political or ideological affiliations. McDonald wrote that she voted against candidates because their essays used “leftist commentary and buzz words” such as “environmental justice,” “social justice,” “making policy,” or “anything else that involves legislating rather than enforcing.” She also expressed disapproval of candidates’ affiliations with liberal organizations such as the American Constitution Society, the Poverty and Race Research Action Council, Greenpeace, and Greenaction.

It concluded that

McDonald committed misconduct and violated Department policies and civil service law by considering political or ideological affiliations in assessing Honors Program and SLIP candidates.

The report reserves most of its criticism for Elston and concludes that he too “violated federal law and Department policy by deselecting candidates based on their liberal affiliations.” However, the report goes on to note that since both Elston and McDonald have resigned their positions, “they are no longer subject to discipline by the Department.” The report finally says that Louis DeFalaise, director of the Office of Attorney Recruitment Management (who in years past was the one to sign off on selections) and Bill Mercer had not provided sufficient oversight to the process. Left out of the report is why Mercer ever put someone so junior unsupervised in charge of anything.

In April 2007 shortly after the letter to Congress, control of the selection process for the Honors Program and SLIP was returned to career DOJ personnel. This episode is just another example of what lengths Bush officials went to not only politicize the Department of Justice but stack its career positions with Bush ideologues.

As a postscript, Monica Goodling (see items 2, 156, and 336) who has also been involved in political motivated hirings and firings was reported by Elston to have argued for keeping the political screening committees. Goodling for her part declined to be interviewed by investigators on her role in this affair.