DPW: Some were very receptive; others not so much. It was very surprising who took which positions. Republicans were, of course, interested. Some were interested for political reasons. Others Republicans were interested because they legitimately recognized the significance of the issues. As an example of responsible leadership would be Senator Grassley, who historically has always been a champion of whistleblowers, regardless of the politics of the situation.
With regards to the Democrats, Senator Feinstein, by far, has been the most concerned thus far. Two of my clients at the Department of Justice are her constituents, and one of them has been subjected to physical assaults at the Civil Rights Division. These are allegations that are not for the faint at heart. Senator Feinstein deserves significant credit, regardless of the ultimate vote (unless she votes for him!), for taking the time and consideration to hear what my clients raised their hands about. We met with her staff - including the most senior staff including her counsel - on two separate occasions. Dick Durbin also paid attention. Some other Democrats, disappointingly, less so.
Most significantly, my clients were exceedingly disappointed that Senator Harkin declined to meet with us. Senator Harkin is a great advocate for the disabled. Yet, I represent what amounts to a sizeable portion of the Disability Rights Section of the Civil Rights Division - those who enforce the law as to disabled Americans - and nearly all of my DRS clients are themselves disabled. Harkin and his staff declined to meet with us. That is shameful.
JB: How do you explain this, David? You would think that the Senators would be up in arms about such egregious behavior by a Cabinet nominee.
DPW: It is hard to explain this, Joan. I think that the nomination of Mr. Perez has been subsumed into a larger debate into the role of the filibuster in the U.S. Senate. As you probably know, I am also a near-full time professor [UMd.], and this is an interest of mine. The Senate, unlike the remainder of government, was intended by the founders to be a place where minority views had rights. Colonies like Rhode Island and Maryland - my home state - were concerned that large states like New York and Pennsylvania (then), could force an issue of national significance. The Senate was always intended to allow minority rights, an enormously ironic point in the issues concerning Mr. Perez. I believe that, because Mr. Perez is himself Latino, many are reluctant to challenge his nomination.
Yet, during his tenure, minority hiring has declined by a significantly statistical percentage. No rational explanation accounts for this. When one of my clients met with Mr. Perez about this issue as part of a minority affinity association within DOJ, Mr. Perez flatly denied disparate impact discrimination, noting only that he himself was Latino. Being Latino does not act as a legal defense to the reality that the facts and statistics demonstrate that he has hired less minorities than the Bush administration. That is shameful; and it is illegal. We intend to prove that case up, whether he gets confirmed or not.
JB: Where is President Obama in all this? Is he aware of all the hubbub?
DPW: He is clearly aware. I intend to send him a similar letter tomorrow, like the one I sent to Senator Reid.
But, he is plainly aware. The Republicans - bless their hearts - have been raising issues over Mr. Perez' management style since the beginning. He is a very abrasive, difficult manager. My clients, save one, however, have been folks who wanted Obama to succeed! They weren't folks who wanted to be used as tools in politics. They are coming forward now because there is no other way for them to secure justice. Unlike Snowden, they followed the rules (including their lawyer's advice (me!)) in not leaking or doing anything illegal.
Our hand was forced because Senator Reid accelerated the issues with regards to Mr. Perez. Unlike Snowden, the only legal way for a federal employee (let alone a federal prosecutor) to provide non-public government information is (a) to file a federal lawsuit; or (b) or make protected disclosures to Congress. With the speed of Senator Reid's nuclear threat, my clients were left with no choice.
We did not have time to file a federal lawsuit. They all had pending EEOC or MSPB claims, but there was not time to file an appropriate, ethical, USDC lawsuit. Thus, the only option that was legal, that we had left, was to go to the Senate. So we did. But even after we went to the Senate, the DOJ has behaved like buffoons, and now charged a number of my clients with being AWOL on Friday. Imagine that: the United States Department of Justice - at the highest levels - has decided to charge federal prosecutors and senior staff with being AWOL for meeting with Senators and staff - including of the oversight committee for DOJ (!!!!). You just cannot make this stuff up, though it would seem to any normal person that the DOJ people are following a playbook for chumps or amateurs.
JB: You're in a big hurry to get this interview done and out there. Do you really think that shining a spotlight on what's going on can grind these confirmation hearings to a halt?
DPW: Yes. I am not asking for the confirmation hearing to result in Perez being voted down. I am asking for due process of law - to allow the rule of law to run its course. Both Senate Democratic and Republican staff acknowledged to me in our meetings that never, in the history of the United States Senate, had the Senate ever allowed a confirmation vote on a nominee with pending complaints or investigations. Even one. Mr. Perez, depending on how you count, has anywhere from six to ten current complaints. In addition, I have plainly announced an intent to file a class action suit against him and DOJ on behalf of all similarly situated DOJ Civil Rights Division staff; there are approximately 500 - 700 staff in the division. How many of them are victims?
JB: What would happen if Perez is confirmed? Does the lawsuit proceed? Does it get swept under the rug?
DPW: You bet, the lawsuit proceeds. I intend to follow Mr. Perez to the ends of the earth. He, and this Administration will be brought to justice for what they have done to my clients and those similarly situated. It is simply not acceptable to sweep management maltreatment (including physical assaults against employees!) under the rug. What makes this case so outrageous is that this man has been nominated to be Secretary of Labor - the protector of ALL American employees - and yet has overseen or directly participated in abuse. He needs to step down from his post at AAG, and the President needs to withdraw his nomination. We need a real protector of employees. Not a man who allows (or directly engages) in abuse of employees.
JB: Agreed. If President Obama was so wedded to nominating a Latino to this post, couldn't he have found one with a more stellar reputation? Or vetted better in the first place and avoided this whole mess?