The Legal Times followed up on the Bar complaints filed by CREW against Michael Elston in Virginia and Esther Slater McDonald for allegedly violating federal law and DOJ policy by making hiring decisions based on political and ideological affiliations.

The Bar complaint against Elston in Virginia states that he "may have violated" Rule 8.4(b) and Rule 8.4(c) of the Rules of Professional Conduct.

Rule 8.4(b) forbids a lawyer from engaging "in a deliberately wrongful act that reflects adversely on the lawyer's honesty, trustworthiness or fitness to practice law." Rule 8.4(c) prohibits "conduct involving dishonesty, fraud, deceit or misrepresentation which reflects adversely on the lawyer's fitness to practice law."

"His conduct is all the more egregious because it took place at the Department of Justice, part of the mission of which is 'to ensure fair and impartial administration of justice for all Americans,'" reads the complaint, which also was forwarded to disciplinary boards in three other states where Elston is also licensed. They are Illinois, Kansas and Missouri.

The complaint against McDonald in the District says she "may have violated rule 8.4(d)" of the D.C. Bar's Rules of Professional Conduct. That rule bars attorneys from engaging "in conduct that seriously interferes with the administration of justice."

Two weeks ago, the Department of Justice’s (DOJ) Office of Inspector General and Office of Professional Responsibility released a report tiled  "An Investigation of Allegations of Politicized Hiring in the Department of Justice Honors Program and Summer Law Intern Program" (DOJ Report).   A pdf version of the DOJ Report can be found here.   Release of this report generated widespread media coverage.   The June 25, 2008 edition of the Los Angeles Times reported:

Scores of highly credentialed young lawyers and law students were denied interviews for coveted positions at the Justice Department because of an illegal screening process that took political and ideological views and affiliations into account rather than merit, Justice Department investigators concluded in a report released Tuesday.

Today,  based on that report, CREW filed bar complaints against former Department of Justice officials Michael J. Elston and Esther Slater McDonald.  Copies of the complaints can be found here. 

According to the DOJ Report, Mr. Elston, formerly Chief of Staff and Counselor to Deputy Attorney General Paul McNulty, and Ms. McDonald, formerly Counsel to Acting Associate Attorney General William Mercer, violated federal law and DOJ policy by making hiring decisions based on political and ideological affiliations. Both Ms. McDonald and Mr. Elston rejected applicants who they believed to be liberal or who had worked for Democrats.

Mr. Elston is a member of the Virginia, Kansas, Illinois and Missouri state bars and Ms. McDonald is a member of the District of Columbia and Virginia bars. CREW filed its complaints, with the DOJ Report attached, against Ms. McDonald in the District of Columbia and the complaint against Mr. Elston in Virginia, but sent copies to the other jurisdictions.

The Rules of Professional Conduct prohibit attorneys from engaging in conduct involving dishonesty and conduct that “seriously interferes with the administration of justice.” By illegally taking political and ideological affiliations into account in screening applicants for career DOJ position, Mr. Elston and Ms. McDonald may have violated bar rules could be subject to discipline.

After filing the bar complaints, CREW’s executive director Melanie Sloan said:

The Department of Justice’s mission is to 'ensure fair and impartial administration of justice for all Americans,' not just conservatives. Ironically, Elston and McDonald engaged in clearly illegal conduct while serving in the top echelon of the very agency charged with enforcing our nation’s laws; their respective bars’ disciplinary committees should take this into account.  Ideology should never trump the rule of law, not even in the Bush administration.