[Congressional Record Volume 153, Number 8 (Tuesday, January 16, 2007)]
[Senate]
[Pages S549-S550]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 APPOINTMENT OF UNITED STATES ATTORNEYS

  Mrs. FEINSTEIN. Mr. President, I have introduced an amendment on this 
bill which has to do with the appointment of U.S. attorneys. This is 
also the subject of the Judiciary Committee's jurisdiction, and since 
the Attorney General himself will be before that committee on Thursday, 
and I will be asking him some questions, I speak today in morning 
business on what I know so much about this situation.
  Recently, it came to my attention that the Department of Justice has 
asked several U.S. attorneys from around the country to resign their 
positions--some by the end of this month--prior to the end of their 
terms not based on any allegation of misconduct. In other words, they 
are forced resignations.
  I have also heard that the Attorney General plans to appoint interim 
replacements and potentially avoid Senate confirmation by leaving an 
interim U.S. attorney in place for the remainder of the Bush 
administration.
  How does this happen? The Department sought and essentially was given 
new authority under a little known provision in the PATRIOT Act 
Reauthorization to appoint interim appointments who are not subject to 
Senate confirmation and who could remain in place for the remainder of 
the Bush administration.
  To date, I know of at least seven U.S. attorneys forced to resign 
without cause, without any allegations of misconduct. These include two 
from my home State, San Diego and San Francisco, as well as U.S. 
attorneys from New Mexico, Nevada, Arkansas, Texas, Washington and 
Arizona.
  In California, press reports indicate that Carol Lam, U.S. attorney 
for San Diego, has been asked to leave her position, as has Kevin Ryan 
of San Francisco. The public response has been shock. Peter Nunez, who 
served as the San Diego U.S. attorney from 1982 to 1988, has said:

       [This] is like nothing I've ever seen in my 35-plus years.

  He went on to say that while the President has the authority to fire 
a U.S. attorney for any reason, it is ``extremely rare'' unless there 
is an allegation of misconduct.
  To my knowledge, there are no allegations of misconduct having to do 
with Carol Lam. She is a distinguished former judge. Rather, the only 
explanation I have seen are concerns that were expressed about 
prioritizing public corruption cases over smuggling and gun cases.
  The most well-known case involves a U.S. attorney in Arkansas. 
Senators

[[Page S550]]

Pryor and Lincoln have raised significant concerns about how ``Bud'' 
Cummins was asked to resign and in his place the administration 
appointed their top lawyer in charge of political opposition research, 
Tim Griffin. I have been told Mr. Griffin is quite young, 37, and 
Senators Pryor and Lincoln have expressed concerns about press reports 
that have indicated Mr. Griffin has been a political operative for the 
RNC.
  While the administration has confirmed that 5 to 10 U.S. attorneys 
have been asked to leave, I have not been given specific details about 
why these individuals were asked to leave. Around the country, though, 
U.S. attorneys are bringing many of the most important and complex 
cases being prosecuted. They are responsible for taking the lead on 
public corruption cases and many of the antiterrorist efforts in the 
country. As a matter of fact, we just had the head of the FBI, Bob 
Mueller, come before the Judiciary Committee at our oversight hearing 
and tell us how they have dropped the priority of violent crime 
prosecution and, instead, are taking up public corruption cases; ergo, 
it only follows that the U.S. attorneys would be prosecuting public 
corruption cases.
  As a matter of fact, the rumor has it--and this is only rumor--that 
U.S. Attorney Lam, who carried out the prosecution of the Duke 
Cunningham case, has other cases pending whereby, rumor has it, Members 
of Congress have been subpoenaed. I have also been told that this 
interrupts the flow of the prosecution of these cases, to have the 
present U.S. attorney be forced to resign by the end of this month.
  Now, U.S. attorneys play a vital role in combating traditional crimes 
such as narcotics trafficking, bank robbery, guns, violence, 
environmental crimes, civil rights, and fraud, as well as taking the 
lead on prosecuting computer hacking, Internet fraud, and intellectual 
property theft, accounting and securities fraud, and computer chip 
theft.
  How did all of this happen? This is an interesting story. Apparently, 
when Congress reauthorized the PATRIOT Act last year, a provision was 
included that modified the statute that determines how long interim 
appointments are made. The PATRIOT Act Reauthorization changed the law 
to allow interim appointments to serve indefinitely rather than for a 
limited 120 days. Prior to the PATRIOT Act Reauthorization and the 1986 
law, when a vacancy arose, the court nominated an interim U.S. attorney 
until the Senate confirmed a Presidential nominee. The PATRIOT Act 
Reauthorization in 2006 removed the 120-day limit on that appointment, 
so now the Attorney General can nominate someone who goes in without 
any confirmation hearing by this Senate and serve as U.S. attorney for 
the remainder of the President's term in office. This is a way, simply 
stated, of avoiding a Senate confirmation of a U.S. attorney.
  The rationale to give the authority to the court has been that since 
district court judges are also subject to Senate confirmation and are 
not political positions, there is greater likelihood that their choice 
of who should serve as an interim U.S. attorney would be chosen based 
on merit and not manipulated for political reasons. To me, this makes 
good sense.
  Finally, by having the district court make the appointments, and not 
the Attorney General, the process provides an incentive for the 
administration to move quickly to appoint a replacement and to work in 
cooperation with the Senate to get the best qualified candidate 
confirmed.

  I strongly believe we should return this power to district courts to 
appoint interim U.S. attorneys. That is why last week, Senator Leahy, 
the incoming Chairman of the Judiciary Committee, the Senator from 
Arkansas, Senator Pryor, and I filed a bill that would do just that. 
Our bill simply restores the statute to what it once was and gives the 
authority to appoint interim U.S. attorneys back to the district court 
where the vacancy arises.
  I could press this issue on this bill. However, I do not want to do 
so because I have been saying I want to keep this bill as clean as 
possible, that it is restricted to the items that are the purpose of 
the bill, not elections or any other such things. I ought to stick to 
my own statement.
  Clearly, the President has the authority to choose who he wants 
working in his administration and to choose who should replace an 
individual when there is a vacancy. But the U.S. attorneys' job is too 
important for there to be unnecessary disruptions, or, worse, any 
appearance of undue influence. At a time when we are talking about 
toughening the consequences for public corruption, we should change the 
law to ensure that our top prosecutors who are taking on these cases 
are free from interference or the appearance of impropriety. This is an 
important change to the law. Again, I will question the Attorney 
General Thursday about it when he is before the Judiciary Committee for 
an oversight hearing.
  I am particularly concerned because of the inference in all of this 
that is drawn to manipulation in the lineup of cases to be prosecuted 
by a U.S. attorney. In the San Diego case, at the very least, we have 
people from the FBI indicating that Carol Lam has not only been a 
straight shooter but a very good prosecutor. Therefore, it is 
surprising to me to see that she would be, in effect, forced out, 
without cause. This would go for any other U.S. attorney among the 
seven who are on that list.
  We have something we need to look into, that we need to exercise our 
oversight on, and I believe very strongly we should change the law back 
to where a Federal judge makes this appointment on an interim basis 
subject to regular order, whereby the President nominates and the 
Senate confirms a replacement.
  I yield the floor.

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