Statement Of Sen. Patrick Leahy,
Chairman, Senate Judiciary Committee,
On S. 214, Preserving United States Attorney Independence Act Of 2007
Senate Floor
March 19, 2007

Over the last several months, the Judiciary Committee has used hearings, investigation and oversight to uncover an abuse of power that threatens the independence of U.S. Attorneys offices around the country and the trust of all Americans in the independence of our federal law enforcement officials.  We have probed the mass firings of U.S. Attorneys and are trying to get to the truth in order to prevent these kinds of abuses from happening again. 

Today, the Senate finally begins debate on S.214, the Preserving United States Attorney Independence Act of 2007.  We have sought Senate consideration of this bill for more than a month now, but Republican objections have prevented that debate and vote.  Through the Majority Leader’s persistence, he was ultimately able to obtain consent to proceed to this measure today. 

Senator Feinstein gave our bill a straightforward title: “The Preserving United States Attorney Independence Act of 2007.”  We need to close the loophole exploited by the Department of Justice and the White House that facilitated this abuse.  The Department of Justice initially fought this bill when it was in Committee.  But since then, in a meeting in my office on March 8, the Attorney General said the Administration would no longer oppose this bill.  I trust that tomorrow when the Senate votes on this legislation, we will pass it and take a step toward restoring the independence of federal law enforcement in this country. 

Politics Have Corrupted The Law Enforcement Function

The Judiciary Committee will continue to investigate the firings and we will summon whoever is needed to get to learn the truth.  What we have already learned in the few documents we have seen from the Department of Justice appears to confirm that the Attorney General, officials at the Department of Justice and the White House have previously misled Congress and the American people about the mass firings and the reasons behind them.  The most fundamental problem is that this Administration has apparently insisted on corrupting federal law enforcement by injecting crassly partisan objections into the selection, evaluation, firing and replacement of the top federal law enforcement officers around the country, our United States Attorneys.  

We have heard the Attorney General and the President use what William Schneider has called the “past exonerative” tense in conceding “mistakes were made.”  Attorney General Gonzales has yet to specify what “mistakes” he made.  Was it a mistake to allow the White House, through the President’s top political operative and his White House counsel, to force the firing of a number of high performing, Bush-appointed United States Attorneys?  Was it a mistake for the President and his top political operative to tell the Attorney General and others in the Department about concerns that U.S. Attorneys are not pushing fast enough and hard enough to indict Democrats but are pushing too hard in corruption investigations involving Republicans?  Was it a mistake to generate, with White House political operatives, a hit list for firing hard-working United States Attorneys and to ensure that what they call “loyal Bushies” are retained?  Was it a mistake to name more “loyal Bushies” to replace those United States Attorneys who have shown some independence in exercising their law enforcement authority and have acted without fear or favor based on political party?

This is an Administration that seeks to justify its unilateralism by an expansive application of its “unitary executive theory.”  But when they get caught, all of a sudden no one knows anything, no one can remember anything, no one did anything and no one told the President.  Instead, “mistakes were made.”  Is the only “mistake” they are now willing to acknowledge their failure to cover-up the White House influence over the Justice Department?  Is the only “mistake” they acknowledge that they got caught in a series of misleading misstatements to Congress, the media and the American people?   I still wonder if the Administration or the Attorney General understand the seriousness of the problem. 

Yes indeed, mistakes were made.  It is our oversight duty to discover who made those mistakes and how and why they made them.

The apparent efforts corrupt the federal law enforcement function and have cast a cloud over all U.S. Attorneys.  Now every U.S. attorney is under that cloud.  People are asking about those who were retained as “loyal Bushies.”

Those fired have had their reputations rehabilitated to some degree by coming forward as we have publicly examined the facts of their firings.  But those circumstances raise questions with respect to those retained and what they had to do to please the White House political operatives in order to keep their jobs.  These mass firings have thus served to undermine the confidence of the American people in the Department of Justice and their local U.S. Attorneys.

A recent study of federal investigations of elected officials and candidates shows a political slant in the Bush Justice Department in public corruption cases.   The study 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 wanting, and it again appears to have been caught with its hand in the cookie jar.

It is true that Presidents have the power to appoint U.S. Attorneys.  That is not in question.  What is raising concerns is the apparent abuse of that authority by removing U.S. Attorneys for improper reasons.  In the same way that any employer has the power to hire, we understand that people cannot be fired because they are Catholic or because of their race or because they are whistleblowers.  The power of employment is not without limit.  It can be abused.  When it is abused in connection with political influence over federal law enforcement, the American people and their representatives in Congress have a right to be concerned. We need the facts, not more spin, and not yet another cover story. 

The United States Department of Justice must be above politics.  The Attorney General of the United States has to ensure the independence of federal law enforcement from political influence.  I made no secret during our confirmation proceedings of my concern whether Mr. Gonzales could serve as an independent Attorney General on behalf of the American people and leave behind his role as counselor to President Bush.  As the Nation’s chief federal law enforcement officer, he must carry out his responsibilities and exercise his awesome authority on behalf of the American people.  He must enforce the law and honor the rule of law.  He must act with the independence necessary to investigate and prosecute wrongdoing without fear or favor.  The political interests of the President cannot be his guiding light.  His “principal” is not the President, as the Attorney General indicated as recently as our January 18 hearing; his “client” is the American people, and his principles must be devoid of partisan politics.  His mission is not to provide legalistic excuses or defenses for unlawful actions of the Administration -- such as the warrantless wiretapping of Americans, the use of torture and the issuing of signing statements to excuse following the law -- but to enforce the law and to ensure that the federal law enforcement is above politics.   

The President can pick anybody he wants to serve on his White House staff — and does.  But when it comes to the United States Department of Justice and to the U.S. Attorneys in our home states, Senators have a say and a stake in ensuring fairness and independence to prevent the federal law enforcement function from untoward political influence.  That is why the law and the practice has always been that these appointments require Senate confirmation.  The advice and consent check on the appointment power is a critical function of the Senate.  That is what this Administration insisted be eliminated by the provision it had inserted in the reauthorization of the PATRIOT Act to remove limits on the ability of the Attorney General to name a interim United States Attorneys.  That is what our bill is intended to restore.

Rolling Back Changes In The Law

We have seen, again, the effects of letting politics infiltrate the Department and undermine its independence and the independence of its law enforcement function.   

As we have learned more about these events over the last few months, I was reminded of a dark time some 30 years ago when President Nixon forced the firing of the Watergate prosecutor Archibald Cox.  Not since what came to be known as the Saturday Night Massacre have we witnessed anything of this magnitude.  The calls to a number of U.S. Attorneys across the country last December, by which they were forced to resign, were extraordinary. Unlike during the Watergate scandal, there was no Elliot Richardson or William Ruckelshaus seeking to defend the independence of federal prosecutors.  Instead, the Attorney General, the Deputy Attorney General, the Executive Office of U.S. Attorneys and the White House all apparently collaborated in these efforts to sack a number of outstanding United States Attorneys.

Sadly, what we have heard from the Administration about the mass firings has been a series of shifting explanations and excuses.  This lack of accountability or acknowledgement of the seriousness of this matter makes it all the more troubling.  The Attorney General’s initial response at our January 18th hearing when we asked about these matters was to brush aside any suggestion that politics and interference with ongoing corruption investigations were factors in the mass firings. Now we know that these factors did play a role in this troubling project.

Today and tomorrow we can take a step forward by fixing the statutory excess that opened the door to these untoward actions.  I commend Senator Feinstein for leading this effort and Senator Specter for joining it.  We have all cosponsored the substitute to restore the statutory checks that have existed for the last 20 years.  It is time to take that first step toward restoring independence by rolling back a change in law that has contributed to this abuse.

There have been no good answers to our questions about why the Administration has removed U.S. Attorneys and not had nominees lined up to replace them.  Or why home-state Democratic Senators were not consulted in advance.  There is no explanation for why there are now 22 out of the 93 districts with acting or interim U.S. Attorneys instead of  Senate-confirmed U.S. Attorneys.  

Sadly, even successfully restoring the law will not undo the damage done to the American people’s confidence in federal law enforcement.  For that, we need to get to the truth, real accountability, and a renewed commitment to insulate federal law enforcement officers from the corrupting influence of partisan politics and the corrosive influence of White House intrusion into law enforcement activities.

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