WASHINGTON (Thursday, February 8) – The Senate Judiciary Committee today approved a bipartisan bill that would prevent the Bush Administration from circumventing the Senate's constitutional role in confirming U.S. Attorneys.  In a bipartisan vote of 13-6, the Committee approved a measure that would restore the previous system of checks and balances that had been in place until the Bush Administration quietly slipped in a change to the law in the last Republican-controlled Congress.  The bill, which now moves to the full Senate for its consideration, would limit the time interim U.S. Attorneys could be appointed without Senate confirmation. 

Below is Chairman Leahy’s statement from today’s executive business meeting.  

Statement Of Sen. Patrick Leahy
Chairman, Senate Judiciary Committee
On S. 214, Preserving United States Attorney Independence Act Of 2007
February 8, 2007

We have learned over the last few months of an apparent abuse of power by this Administration that threatens to undermine the effectiveness and professionalism of U.S. Attorneys offices around the country.  I support Senator Feinstein’s efforts to combat these abuses.  I thank Senator Schumer for chairing our hearing into this matter this week, and Senator Specter for his active involvement. I urge the Committee to approve the Specter, Feinstein, Leahy substitute to S. 214, the “Preserving United States Attorney Independence Act of 2007,” which would roll back changes to the law that invited the abuses.

During the Patriot Act Reauthorization last year, curbs on the authority of the Attorney General to appoint interim United States Attorneys to fill a vacancy temporarily were removed.  The change to the law removed the 120-day limit for such appointments and removed the district court’s role in making any subsequent interim appoints.  This change in law, accomplished over my objection, allowed the Attorney General for the first time to make so-called interim appointments that could last indefinitely.   

Regrettably, we do not have to imagine the effects of this unfettered authority.  We learned recently that the Department of Justice has asked several outstanding U.S. Attorneys from around the country to resign their positions.  Some are engaged in difficult and complex public corruption cases.  We also understand the Attorney General has or is planning to appoint interim replacements, raising a potential of avoiding the Senate confirmation process altogether.  This is a clear end-run around our system of checks and balances.

Many Senators have raised concern about this practice and several have asked the Attorney General about the reasons for the interim appointments.  The situation in Arkansas highlights the troubling nature of this new authority and its abuse.  The Attorney General removed respected U.S. Attorney Bud Cummins and replaced him with the interim appointment of Tim Griffin, a former political operative for Karl Rove.  This appointment was not made pursuant to an agreement with the two home state Senators.

In our hearing this week, Paul McNulty, the second in command at the Department of Justice, testified that Mr. Cummins’ dismissal was not related to how well he did his job.  In fact, Mr. McNulty said he had no “performance problems,” but was removed merely to give an opportunity to Mr. Griffin, a person whom he admitted was not the “best person possible” for the job and who is reported to have been involved in an effort during the 2004 election to challenge voting by primarily African-American voters serving in the Armed Forces overseas.  This was not a vacancy created by necessity or emergency.  This was a vacancy created by choice to advance a political crony. 

Since this Administration has been creating these vacancies by removing U.S. Attorneys as it chooses for whatever reason – or no good reason – on a timeline it dictates, how can it now claim not to have had time to fill spots with Senate confirmed nominees?  Why were agreed upon replacements not lined up before creating these vacancies?  Why were home state Senators not consulted in advance?  I would note that every one of the U.S. Attorneys who was asked to resign was someone chosen by this Administration, while the Attorney General served as White House Counsel, nominated by this President, approved by the home state Senators and confirmed by the Senate.  This is a problem of the Administration’s imagination and choosing, like so many others.

With respect to the law that has governed for the last decades, the authority given to the Attorney General to make a time-limited interim appointment has not proven to be a problem.  For example, last Congress, the time from nomination to confirmation of U.S. Attorney nominations took an average of 71 days, with only three taking longer than 120 days and two of those only a few days longer.

The Department opposes the district court’s role in the law that existed prior to the changes enacted in a Patriot Act Reauthorization conference.  This was a conference in which Democratic members were excluded.  The Department claims the District Court’s role in filling vacancies beyond 120 days to be inconsistent with sound separation of powers principles.  That is contrary to the Constitution, our history and our practices.  In fact, the practice of judicial officers appointing officers of the court is well established in our history and from the earliest days.  Morrison v. Olson should have laid to rest the so-called separation of powers concern now being trumpeted to justify these political maneuvers within the Justice Department.  It is not just a red hearing but a bright red herring.  Certainly no Republicans now defending this Administration voiced concern when a panel of judges appointed Ken Starr to spend millions in taxpayer dollars on going after President Clinton as a court-appointed prosecutor. 

I have heard not a word from the apologists who seek to use the Constitution as a shield for these activities about what the Constitution says.  The Constitution provides congressional power to direct the appointment power.  In Article II, the part of the Constitution that this Administration reads as if it says that all power resides with the President, the President’s appointment power is limited by the power of Congress.  Indeed, between its provisions calling for appointments with the advice and consent of the Senate and for the President’s limited power to make recess appointments, the Constitution provides:  “But the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the Heads of Departments.”  Thus, the Constitution contemplates exactly what our statutes and practices have always provided.  Congress is well within its authority when it vests in the courts a share of the appointment power for those who appear before them. 

Regrettably, this latest abuse of power follows this Administration’s politicization of U.S. Attorneys offices.  A recent study of federal investigations of elected officials and candidates shows that the Bush Justice Department has pursued Democrats far more than Republicans.  The study by Dr. Donald C. Shields, Professor Emeritus from the Department of Communication, University of Missouri-St. Louis, and Dr. John F. Cragan, Professor Emeritus from the Department of Communication, Illinois State University, found that between 2001 and 2006, 79 percent of the elected officials and candidates who have faced a federal investigation were Democrats and only 18 percent Republicans.  The Administration’s track record is not good and it again appears caught with its hand in the cookie jar.

Before 1986, 28 U.S.C. 546, the law governing the appointment of United States Attorneys, authorized the district court where a vacancy exists to appoint a person to serve until the President appointed a person to fill that vacancy with the advice and consent of the Senate.  When Congress changed the law in 1986 to allow the Attorney General to appoint an interim U.S. Attorney, it carefully circumscribed that authority by limiting it to 120 days, after which the district court would make any further interim appointment needed.  The substitute to S. 214 that we consider today would reinstate these vital limits on the Attorney General’s authority and bring back incentives for the Administration to fill vacancies with Senate-confirmable nominees.

United States Attorneys around the country are the chief federal law enforcement officers in their states, and they have an enormous responsibility for implementing anti-terrorism efforts, bringing important and often difficult cases, and taking the lead to fight public corruption.  It is vital that those holding these critical positions be free from any inappropriate influence and subject to the check and balance of the confirmation process.  I support Senator Feinstein’s effort to restore that process.  I join with her and Senator Specter in their substitute amendment.

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