Investigative Drama: Special Counsel's Crusade

Investigative Drama: Special Counsel's Crusade

By Shawn Zeller | 7:38 AM; Aug. 06, 2007 | There’s probably no worse time to be a politically appointed attorney managing an important legal arm of the Bush administration. Congress continues to investigate the apparent political motives behind the dismissal of nine federal prosecutors, and the White House is continuing to stonewall such inquiries on grounds of executive privilege.

Yet Scott J. Bloch, who heads the small investigative and prosecutorial executive branch agency known as the OSC, for U.S. Office of Special Counsel, apparently has hit upon a jujitsu-style means of minting political advantage out of legal investigations into possible administration improprieties, up to and including his own investigation of the U.S. attorney firings.

The OSC’s principal work is investigating claims of whistleblowing staff at other federal agencies. But Bloch has made a fresh career out of one the agency’s lesser-known briefs: Enforcing the Hatch Act, the 1939 law forbidding executive branch employees from engaging in political activity in the workplace.


Bloch, who declined through an agency spokesman to be interviewed, most recently catapulted his office into the news cycle with a report to President Bush in June accusing the director of the General Services Administration, Lurita Doan, of placing her agency “in the service of a partisan campaign to retake Congress and the governors’ mansions” for the Republican Party. Doan had hosted a January meeting with White House political aide J. Scott Jennings devoted to improving GOP performance in the 2008 election. More than 30 GSA political appointees attended. “One can imagine no greater violation of the Hatch Act,” the Bloch report concluded.

But the Doan investigation is simply one piece of what Bloch has described as a wide-ranging OSC inquiry into improper political activity in the administrative reaches of the Bush White House, much of it reportedly under the supervision of Karl Rove, deputy chief of staff and Bush’s top political adviser.
Bloch has launched one inquiry into last December’s dismissal of David C. Iglesias as the U.S. attorney for New Mexico and another into the e-mail accounts the White House and the Republican National Committee maintained for White House officials, containing as many as 5 million messages, that the RNC and the White House described as having vanished this spring, soon after the Senate Judiciary Committee subpoenaed the records as part of its inquiry into the U.S. attorney dismissals.

A Dark Horse Crusader

Bloch cuts an unlikely figure as a scourge of White House political abuses. For one thing, he is presently the subject of an investigation himself — and on the very sort of charges that his office is supposed to proffer in protecting the rights of federal whistleblowers. The Office of Personnel Management is examining the claims of eight current or former OSC employees who contend that Bloch sought to reassign them to a fledgling field office in Detroit two years ago. The employees allege Bloch wanted to move them because he regarded them as disloyal — for, among other things, objecting to gag orders he had reportedly issued to prevent them from discussing agency policies with Congress.

Indeed, employees of the OSC say that Bloch repeatedly has violated the spirit, if not the letter, of anti-retaliation strictures in the federal workplace, both in his enforcement policy and in his management of the OSC’s own office. After he took over the OSC in 2003, the office’s tally of whistleblower complaints resolved in employees’ favor plummeted by about 60 percent, from 98 in fiscal 2002, the last full year under Bloch’s predecessor, to 40 in fiscal 2006. And his first major bout of Hatch Act vigilance occurred in 2004, when he cracked down on Democratic-leaning political e-mails and voter outreach conducted on behalf of civil servants and members of federal employee unions. Having Bloch enforce whistleblower protections, said Jeff Ruch, who heads the whistleblower advocacy group Public Employees for Environmental Responsibility, was akin to retaining “the town fire chief who is actually the town arsonist.”

Bloch’s detractors also argue that he hasn’t blanched at making the OSC follow his own political agendas. A conservative Roman Catholic and a trial lawyer, he served as a precinct committeeman for the state GOP organization in Kansas before coming to Washington in 2001, initially to work on a Justice Department task force on the fledgling president’s faith-based initiatives.

During his confirmation hearing for the OSC job in 2003, Bloch drew queries from skeptical Democrats about how seriously he would pursue claims from federal employees alleging workplace discrimination on grounds of sexual orientation. He initially replied that he would hew to the letter of antidiscrimination law. When Hawaii Democrat Daniel K. Akaka pressed Bloch to be more specific, he said flatly that the federal workplace was “not a place for selective discrimination.” But shortly after taking charge at the OSC, he removed language on the agency’s Web site designed to help federal workers understand sexual-orientation discrimination law.

His predecessor, Elaine D. Kaplan, who was nominated for the OSC director’s fixed five-year term by President Bill Clinton, says Bloch’s handling of the question was “not straightforward” and “routinely mischaracterized the legal issues involved” — in other words, bringing the OSC into compliance with the antidiscrimination measures in force at other federal agencies.

Ruch and other whistleblower advocates say that Bloch also wrongly allowed his religious views to influence hiring policies at the OSC, which employs about 100 investigators and claims processors. Bloch recruited to the staff three attorneys from Michigan’s Ave Maria School of Law, and he awarded a no-bid consulting contract to the former headmaster of a Roman Catholic boarding school that one of his sons attended, according to Ruch.

One longtime OSC staffer, who requested anonymity for fear of retaliation, confirmed the hires and said that both moves “raised eyebrows,” especially since it’s unprecedented for a supervisor at Bloch’s level to take such hands-on interest in staffing decisions.

In view of Bloch’s record, some federal insiders take a jaded view of his recent career makeover. Colleen Kelley, who heads the 150,000-member National Treasury Employees Union, says that whatever the merits of the Doan case, congressional leaders should focus on how Bloch has neglected his agency’s primary mission of protecting whistleblowers. “I hope those on the Hill are smarter than that and won’t let a smokescreen deflect accountability for what he has done,” she said.

A Payback Plan?

Some critics suspect that Bloch’s Hatch Act crusade grows out of the OSC director’s personal animus toward some administration officials. His cultural conservatism reportedly has cost him favor with senior people at the White House, even some of the same people who helped Bush win re-election in 2004 in part with an appeal to voters who expressed disdain for any expansion of gay rights. After Bloch abruptly forsook the OSC’s sexual orientation antidiscrimination case load, conservative columnists Robert Novak and Phyllis Schlafly both reported that the White House sent an unnamed intermediary to request his resignation — an offer the notoriously stubborn Bloch promptly turned down.

Bloch has denied there’s any payback factor in his recent bids to get to the bottom of politicking in the White House; he insists he is only doing the job the OSC was created to do 28 years ago. “I consider myself a very tough cop because I consider enforcement of the Hatch Act, which is what we do, an effort to keep government clean and accountable,” he told the Los Angeles Times.

But some aides at the OSC describe Bloch as being “obsessed” with the White House’s efforts to target him, especially via the OPM probe. In January, one of his top aides, Rebecca McGinley, ordered OSC staff to apprise her of any contact from OPM investigators. She also initially forbade investigators to interview OSC workers off-site. Bloch has since withdrawn both demands. OSC staffers also say they believe that Bloch intends his pursuit of Lurita Doan as a not-so-subtle message to the captains of the OPM inquiry.

Debra S. Katz, the lawyer for the eight OSC complainants in the OPM inquiry, says agency officials have told her the investigation will finish this summer. And she clearly expects it will vindicate her clients’ views that Bloch “came into this agency, dismantled it and made it completely inhospitable for conscientious employees to do their work.” Bloch’s attorney — Roscoe J. Howard Jr., another Kansas lawyer who, while serving as the Bush administration’s first U.S. attorney in Washington, recruited Bloch to work for the administration — declined comment on the OPM investigation and the allegations surrounding it.

Meanwhile, the Doan matter is breeding some ironies. Before Bloch officially released his report, The Washington Post’s Web site obtained a leaked copy in May. Rep. Thomas M. Davis III of Virginia, the top Republican on the House Oversight and Government Reform Committee, contended the leak denied Doan any effective chance of answering her accusers. Davis arranged to have Bloch brought before the committee last month to ask if he authorized the leak, which Bloch denied doing.

Davis previously had been a Bloch defender and had praised the OSC for dramatically cutting back its backlog of personnel cases. But at the hearing, the congressman blew up at the witness, explaining that he’d obtained a personal e-mail by Bloch describing Davis as “acting like Doan’s defense counsel” when she testified before the Oversight committee.

Davis then promised to wage what might be called a Blochian crusade: He announced his intention to corral all politically sensitive e-mails Bloch may have sent from his personal account that referred in any manner to Doan or other federal lawmakers. Davis’ chief of staff, David Marin, says his boss will punish any failure to comply by urging the committee to pursue contempt-of-Congress charges. In other words, Scott Bloch, the Bush administration’s in-house Hatch Act enforcer in the U.S. attorneys scandal, could wind up facing the same charges now confronting the high-profile noncompliant congressional witnesses in the case, White House Chief of Staff Joshua B. Bolten and former White House counsel Harriet Miers.

This story originally appeared in CQ Weekly.