[Congressional Record Volume 153, Number 29 (Thursday, February 15, 2007)]
[Senate]
[Pages S1993-S1997]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   UNANIMOUS-CONSENT REQUEST--S. 214

  Mr. LEAHY. Mr. President, I am about to propound a unanimous consent 
request. I saw the distinguished Senator from Arizona on the floor a 
moment ago, and I told him I would notify him because I know he is 
going to object. I also see the distinguished Senator from Idaho, who 
will. But, Mr. President, what I am going to do is the following: I ask 
unanimous consent that the Senate proceed to the immediate 
consideration of Calendar No. 24, S. 214, a bill to preserve the 
independence of U.S. attorneys, that the committee-reported amendment 
be agreed to, the bill, as amended, be read three times, passed, and 
the motion to reconsider be laid upon the table, without any 
intervening action or debate.
  The PRESIDING OFFICER. Is there objection?
  Mr. SCHUMER. Mr. President, reserving the right to object.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. And I will not object, but I wish to say a word before 
we proceed further. I just want to urge my colleagues to accept this 
unanimous consent request by Senator Leahy to move forward legislation 
on restoring the longtime procedure for appointing interim U.S. 
attorneys.
  I ask unanimous consent that after objection is heard, if it is 
heard, Senator Leahy be permitted to yield 5 minutes to me and then he 
immediately regain the floor.
  The PRESIDING OFFICER. There is one unanimous consent request pending 
at this time, and that needs to be resolved before we move forward.
  Mr. LEAHY. Mr. President, parliamentary inquiry: How much time is 
remaining of the hour the Senator from Vermont has?
  The PRESIDING OFFICER. Twenty-eight minutes.
  Mr. LEAHY. Mr. President, I know people are about to object. I can 
assure the Senator from New York--so he will not have to repeat his 
request--that he is going to be getting time after the objection is 
made. I am going to make a statement, a very short statement, but I 
will yield at the appropriate time.
  Mr. SCHUMER. Mr. President, I thank my colleague.
  The PRESIDING OFFICER. Is there objection to the request of the 
Senator from Vermont?
  The Senator from Idaho.
  Mr. CRAPO. Mr. President, it is my understanding the Senator from 
Arizona does desire to object to this unanimous consent proposal and 
could not be here on the floor, so on his behalf, I do object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Vermont.
  Mr. LEAHY. Mr. President, last week, the Judiciary Committee reached 
a bipartisan consensus to reverse recent changes to the law governing 
appointments of interim U.S. attorneys. These changes were made, with 
little transparency, during final negotiations of the reauthorization 
of the USA Patriot Act. Through my staff, I had objected at the time, 
but to no avail. These changes invited and abetted 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 continue to support Senator Feinstein's efforts to combat these 
abuses. I thank Senator Schumer for chairing our hearing into this 
matter last week and Senator Specter for his active involvement, which 
helped lead to a bipartisan solution. I urge the Senate to follow the 
committee's lead and approve the Specter, Feinstein, Leahy substitute 
to S. 214, the Preserving United States Attorney Independence Act of 
2007.
  During the Patriot Act reauthorization last year, checks on the 
authority of the Attorney General to appoint interim U.S. 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. Yesterday, one of the U.S. attorneys who has been 
told to resign, Carol Lam of the Southern District of California,

[[Page S1994]]

announced two indictments stemming from her office's investigation of 
now-convicted former Congressman Randall ``Duke'' Cunningham. A Federal 
grand jury handed up indictments of San Diego defense contractor Brent 
R. Wilkes for bribery and of Wilkes and the former No. 3 official at 
the CIA, Kyle ``Dusty'' Foggo, for conspiring to defraud the United 
States. Apparently, Ms. Lam's reward for her efforts at rooting out 
serious public corruption is a pink slip.
  We also understand the Attorney General has or is planning to appoint 
interim replacements for the U.S. attorneys he is removing, raising a 
potential of avoiding the Senate confirmation process altogether. This 
is an end-run around our system of checks and balances.
  Many Senators have raised concerns 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 last 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 few 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 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 U.S. 
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. I was pleased that 
Senator Feinstein worked so hard with Senator Specter to craft a 
worthwhile consensus measure to reinstate these vital limits on the 
Attorney General's authority and bring back incentives for the 
administration to fill vacancies with Senate-confirmable nominees. This 
measure has bipartisan support on the committee. We reported it out 13-
6 after debating and voting down several amendments.
  U.S. attorneys around the country are the chief Federal law 
enforcement officers in their States, and they have an enormous 
responsibility for implementing antiterrorism efforts, bringing 
important and often difficult cases, and taking the lead to fight 
public corruption. It is vital that those holding these vital positions 
be free from any inappropriate influence and subject to the check and 
balance of the confirmation process. The Specter, Feinstein, Leahy 
substitute to S. 214 is a measure that passed our committee with 
bipartisan support and I urge the Senate to take it up and pass it 
today so that we can curb the abuses we have seen.
  Mr. President, how much time is remaining?
  The PRESIDING OFFICER. Twenty-one minutes.
  Mr. LEAHY. Mr. President, I ask unanimous consent that 7 minutes of 
my time be yielded to the Senator from New York--does the Senator want 
more than that?
  Mr. SCHUMER. I will take 5.
  Mr. LEAHY. That 5 minutes of my time be yielded to the Senator from 
New York and the remainder of my time be yielded to the Senator from 
California.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from New York.
  Mr. SCHUMER. Mr. President, first, I thank our leader on the 
Judiciary Committee, the Senator from Vermont, for his leadership on 
this issue, as well as for yielding time. It is unfortunate that the 
unanimous consent request of the Senator from Vermont was objected to.
  Now, I would like to report to my colleagues on both the hearing we 
had,

[[Page S1995]]

which is public record, and, more to the point, the private meeting we 
had yesterday with the Deputy Attorney General, Mr. McNulty, who was 
gracious and who is a very fine person. But neither the hearing nor the 
private meeting we had allayed our fears. In fact, they increased them 
in a variety of ways.
  As we know, at least seven U.S. attorneys were summarily fired in 
recent weeks. The Attorney General has flatly denied that politics has 
played a part. But the bottom line is, even at the hearing it was 
admitted that one U.S. attorney was fired without cause and replaced by 
somebody who had worked for Karl Rove and the Republican National 
Committee and did not have much of a record being a prosecutor. Even 
more troubling was the firing of the U.S. attorney from San Diego, of 
the Southern District of California, who was in the midst of a very 
high-level investigation that led to the conviction of Congressman 
Cunningham and, yesterday, the indictment of two more in that. So it is 
hardly a concluded investigation.
  The bottom line at yesterday's briefing by the Deputy Attorney 
General did little to alleviate our concerns that politics was involved 
in several of these firings and, in fact, raised those concerns.
  It seems, when you have a preliminary look--we did not get a look--
but a preliminary description of the EER reports, the evaluations, that 
most of the U.S. attorneys, not all but most of the U.S. attorneys who 
were fired had very fine recommendations.
  There were a few policy disputes, but particularly in the area of the 
U.S. attorney from the Southern District of California, in the midst of 
an ongoing investigation, there was some policy disagreement about how 
to deal with those crossing the border. She was told to change it. And 
there is no knowledge or observation whether she changed it or not, and 
yet she was fired in the midst of a much more serious, much more high-
profile political investigation.
  So the idea that people were fired for no cause, the idea that some 
may have been--and this is not proven, but certainly the hearing and 
the private meeting increased rather than decreased my concerns--fired 
for political reasons because they may have either, in some cases, not 
done what the Justice Department wanted them to do--particularly, 
remember, this was right before election time--or may have been going 
forward with a very serious investigation into local political 
officials remains a real possibility.
  We asked to see the EER reports at the hearing. At the private 
meeting yesterday, Paul McNulty, Deputy U.S. Attorney General, said 
some of the information was taken under confidence. These are 
evaluations, and they ask lawyers, judges, fellow U.S. attorneys how 
the office is doing and how the U.S. attorney is doing. And if they 
were to reveal their names, it might jeopardize the confidentiality of 
future EER reports. That is a reasonable assertion. So we asked, could 
we get the reports and redact the names of those who were saying this 
is a good or bad U.S. attorney? Mr. McNulty said he would get back to 
us on the issue. We await.
  But make no mistake about it: We will get those EER reports. Either 
they will be given to us with the necessary redaction--and I have 
spoken to my colleague from California, Senator Feinstein--or we will 
ask Senator Leahy, our leader on this issue, through the Judiciary 
Committee to subpoena them. We will see them. If they show that the 
U.S. attorneys were doing a good job, if they show that they were 
people who should be there, there will be real trouble.
  It means two things. First, we will get to the bottom of this. There 
are still too many troubling questions out there. If we have to have 
another hearing, we will. Second, it means whatever the investigation 
finds, there is enough troubling evidence out there now that the 
legislation Senator Feinstein has authored, and Senator Leahy and 
myself have cosponsored, should be passed immediately. Therefore, it is 
regrettable there was objection that we don't move to rectify the 
situation and do it right now.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I thank the Senator from New York for 
holding the hearing in his subcommittee, for his leadership, for 
understanding what is at stake, and for being willing to be out in 
front on doing something about it.
  What I want to do for the American public is lay out the history of 
this particular issue and place it in context.
  Unbeknownst to any of us, in March 2006, in the PATRIOT Act 
reauthorization, a provision was included that allows the Attorney 
General to appoint an interim U.S. attorney for an indefinite period of 
time. You might ask, what is wrong with that? What is wrong is that it 
avoids Senate confirmation. Prior to this change, the law stated that 
the Attorney General could appoint interim U.S. attorneys but only for 
120 days. After that time, the authority to appoint an interim U.S. 
attorney would fall to the district court. Why? Because that provided 
an incentive to the administration to present a U.S. attorney nominee 
to the Senate for hearing, for questions, for review, and for a vote on 
confirmation.
  This structure created in 2006 was relatively new. It was enacted 
during the Reagan administration in a broader bill by Strom Thurmond 
that was described as a technical corrections bill on criminal 
procedures. Before that, from 1898 until the Thurmond bill was enacted, 
district courts held the sole authority to appoint interim U.S. 
attorneys. That existed for almost 100 years. It was critical then, as 
it is now, that all U.S. attorneys receive Senate confirmation. By 
having the district courts make that interim appointment, it assured 
that the confirmation would take place.
  No one expected the rash of firings from the Department of Justice. I 
first learned about the Department's actions early in January. At that 
time I learned that main Justice in Washington had placed calls to at 
least seven, possibly more, U.S. attorneys and asked them to resign by 
a date specific in January. I was also told that the intention was to 
bring in outside lawyers from main Justice or from elsewhere to take 
over these posts and to serve without confirmation for the remainder of 
the Bush presidency.

  The Department of Justice has now acknowledged in public and at a 
hearing that such calls were made to ``less than 10'' U.S. attorneys 
asking them to step aside. We also know that prior to this action, 
there were already 13 U.S. attorney vacancies pending, with only two 
nominations presented by the administration to the Judiciary Committee. 
This means that if you add the 7 to 10 U.S. attorneys who were asked to 
resign to the current 11 vacancies without nominees, there could be 
between 18 and 21 U.S. attorney positions throughout the country that 
the Attorney General could fill without securing Senate confirmation. 
That is over 20 percent of U.S. attorneys nationally that could be 
filled for the remaining 2 years of the Bush presidency without going 
through Senate confirmation.
  This new provision slipped into the PATRIOT Act would also allow the 
next President to put in place all 93 U.S. attorneys and let them serve 
the entire 4-year term without the benefit of confirmation. This change 
was a mistake. I suspect the amendment to the PATRIOT Act came from the 
Justice Department, was quietly put in the bill, and none of us at the 
time were the wiser. And then suddenly, at a certain point, the Justice 
Department said: OK, let's begin to remove some of these people and 
give some of our own bright young people an opportunity to step up and 
become a U.S. attorney. This is wrong, and the Justice Department has 
backed away from it.
  Let me talk about a few of the U.S. attorneys involved. According to 
press reports, at least three were given glowing reviews from their 
performance audits in the recent past. According to the Las Vegas 
Review-Journal, Daniel Bogden, the U.S. Attorney for Nevada, said 
Wednesday that he was stunned to hear the Department of Justice 
requested that he step down from his post because of performance 
reasons. He went on to say:

       To this date, no one from the department has previously 
     identified any issues with my performance or the performance 
     of my office.

  A similar story has surfaced about Washington U.S. Attorney John 
McKay. The Seattle Times reported last week:


[[Page S1996]]


       Seven months before he was forced to resign as U.S. 
     attorney for the western district of Washington, John McKay 
     received a glowing performance review from Justice Department 
     evaluators.

  The article went on to quote the report which stated:

       ``McKay is an effective, well-regarded and capable leader 
     of the [U.S. attorney's office]'' . . . according to the team 
     of 27 Justice Department officials.
       Yet on December 7th, Michael Battle, director of the 
     Justice Department's executive office for U.S. attorneys, 
     called McKay and asked him to step down.
       ``I was told to resign by the end of January,'' McKay 
     confirmed . . . ``I asked what the reason was, and they told 
     me there was none.''

  Then, of course, there is former-Arkansas U.S. Attorney Bud Cummins. 
In a story that ran last month, Mr. Cummins stated that the Director of 
the Executive Office of U.S. Attorneys, Michael Battle, made it clear 
that although he was being asked to leave, ``it was not about me but 
about their desire to give someone else the opportunity to have the 
appointment.''
  Mr. Cummins said he specifically asked if his job performance was a 
problem when he got the call:

       [Mr. Battle] assured me it was exactly to the contrary.

  These are three cases that have been documented where U.S. attorneys 
did not have any performance-related concerns as alleged by the 
Department. In addition, I have heard similar reports about other U.S. 
attorneys. I want to speak in specific about one. That is the U.S. 
Attorney from San Diego, CA. Today is U.S. Attorney Carol Lam's last 
day in office. I want to commend her. I thank her for the work she has 
done in that office. She was sworn in as U.S. attorney in September of 
2002 and was appointed by the President in November 2002. Prior to 
serving as U.S. attorney, she was a judge of the Superior Court of San 
Diego, and she served as an assistant U.S. attorney in the southern 
district of California for 11 years. So she was no newcomer. She has 
been successful in bringing many of the country's most important 
corruption cases. I want to go through a few of them.
  In March of 2004, Steven Mark Lash, the former chief financial 
officer of FPA Medical Management, was sentenced for his role in 
defrauding shareholders and lenders of FPA. The collapse of the company 
left more than 1,600 doctors being owed more than $60 million and 
patients reported being unable to obtain medical care because FPA had 
ceased paying providers. Thank you, Carol Lam.
  In January 2005, Mark Anthony Kolowich, owner of World Express Rx, 
pled guilty to conspiracy to selling counterfeit pharmaceuticals, 
conspiracy to commit mail fraud and smuggle pharmaceuticals, and 
conspiracy to launder money. Mr. Kolowich had run an Internet pharmacy 
Web site where customers could order prescription drugs without a valid 
prescription. The judge called him the kingpin and architect of an 
elicit pharmaceutical ring that recruited many others to smuggle drugs 
across the United States-Mexico border at San Ysidro. Ms. Lam also 
announced that charges had been filed against five other individuals in 
a related case involving MyRxForLess.com. Thank you, Carol Lam.
  In July 2005, Ms. Lam brought a case against San Diego councilman 
Ralph Inzunza, along with Las Vegas lobbyist Lance Malone, were 
convicted on multiple counts of extortion, wire fraud conspiracy, and 
wire fraud. They were accused of trading money for efforts to repeal a 
law.

  In November 2005, Ms. Lam secured a guilty plea from former 
Representative Randy ``Duke'' Cunningham for taking more than $2 
million in bribes in a criminal conspiracy case involving at least 
three defense contractors, after he accepted cash and gifts and then 
tried to influence the Defense Department on behalf of donors. He also 
pled guilty to a separate tax evasion violation for failing to disclose 
income in 2004. Thank you, Carol Lam.
  In addition, earlier this week, Carol Lam announced two more 
indictments of Kyl ``Dusty'' Foggo, former top officer at the CIA, and 
Brent Wilkes, a defense contractor accused of bribing Duke Cunningham 
and the prime benefactor of the secret CIA contracts. Thank you, Carol 
Lam.
  This woman was called and told to resign by a date specific, after 
she has done all of this good work. Ms. Lam and the San Diego U.S. 
Attorney's office have also pursued and successfully prosecuted other 
important cases, including:
  In September 2005, the president of the San Diego chapter of Hell's 
Angels pled guilty to conspiracy to commit racketeering. Guy Russell 
Castiglione admitted that he conspired to kill members of a rival 
motorcycle gang, the Mongols, and to sell methamphetamine. Thank you, 
Carol Lam.
  Then in December 2005, Daymond Buchanan, member of Hells Angels, was 
sentenced to 92 months in Federal prison for participating in a pattern 
of racketeering. He admitted in his guilty plea that he and other 
Hell's Angels also inflicted serious bodily injury upon one victim and 
that another Hell's Angel brandished a firearm during the offense.
  At that time, Ms. Lam announced:

       With the president, sergeant at arms, secretary, treasurer, 
     and six other members of the Hell's Angels convicted of 
     racketeering charges and facing long prison sentences, the 
     San Diego chapter of the Hell's Angels has been effectively 
     shut down for the foreseeable future.

  Thank you, Carol Lam. And what does she get? Fired without cause.
  In September, 2006, Jose Ernesto Beltran-Quinonez, a Mexican 
national, pleaded guilty to making false statements about weapons of 
mass destruction. Mr. Quinonez was sentenced to 3 years in Federal 
prison for making up a story about Chinese terrorists sneaking into the 
United States with a nuclear warhead. That hoax prompted a massive 
investigation, Federal warnings, discussions at one of President Bush's 
security briefings, and a nationwide hunt for the group of Chinese 
supposedly plotting the attack.
  Thank you, Carol Lam.
  In December 2006, Mel Kay, of Golden State Fence Company, and Michael 
McLaughlin, pleaded guilty to felony charges of hiring illegal 
immigrants and agreed to pay fines of $200,000 and $100,000, 
respectively. The company, which built more than a mile of the 15-foot-
high fence near the Otay Mesa border crossing in San Diego, agreed 
separately to pay $5 million on a misdemeanor count, one of the largest 
fines ever imposed on a company for an immigration violation.
  Thank you, Carol Lam.
  These are just some of the important cases Carol Lam has pursued 
during her tenure. She does not deserve this kind of treatment.
  In addition, during her previous time in the office, Ms. Lam 
prosecuted and convicted several high-ranking members of La Cosa 
Nostra, a Chicago-based organized crime family. She also secured a 
guilty plea and settlement of $110 million against National Health 
Laboratories, Inc., in a Medicare fraud case.
  Ms. Lam has had a distinguished career and she served the Southern 
District of San Diego well, and everyone in that district knows that. I 
regret that main Justice does not. I am quite disappointed that main 
Justice chose to remove her, especially given the ongoing work in which 
the office is involved.
  Now, like Senator Schumer, I was present yesterday when the Justice 
Department briefed us and several other Senators as to why they asked 
these U.S. attorneys to leave. With the record I just pointed out, 
nothing that was said yesterday justifies asking this U.S. attorney to 
leave without cause--nothing. That is why this is an issue. I believe 
their intent was to bring in people from the outside to give some of 
their bright young people an opportunity. This might not be wrong, if 
they weren't also attempting to avoid confirmation. Without 
confirmation, the Department of Justice could bring in political 
operatives or anybody else. That is wrong.
  If I had not been given this information, we never would have known 
about these events because the likelihood is that these U.S. attorneys 
would have just quietly resigned and retired to another job or retired 
into society somewhere else. This is not the way we should function. 
That is why this is a major issue. That is why the Majority Leader of 
the Senate wishes to bring this bill to the floor--to put it back to 
where it was prior to that provision being put into the Patriot Act 
without our knowledge and without debate.

[[Page S1997]]

  I hope the U.S. attorney bill will come to the floor of the Senate, 
and I hope we can change it back. I hope we can go out and say to the 
American people that this will never happen again and every U.S. 
attorney will have confirmation before the Senate of the United States.
  Mrs. LINCOLN. Mr. President, I rise today to state my support for the 
legislation put forward by Senator Feinstein on the interim appointment 
of U.S. attorneys. This legislation represents a compromise between 
Senator Specter and Senator Feinstein and I commend them for the 
bipartisan example they have set in addressing this issue.
  Senator Pryor and I came to this debate because of the interim 
appointment of a U.S. attorney in Arkansas, but the importance of this 
issue goes beyond the qualifications of Tim Griffin for that position. 
The Founding Fathers created this Government around a system of checks 
and balances, with three coequal branches. As we all know, one of those 
branches is filled with officials who are not elected, such as Mr. 
Griffin. The Founding Fathers knew that if the executive branch was 
allowed to appoint all of the members of the judiciary without any 
consultation with the legislative branch, it would make the judiciary 
branch simply an extension of the executive.
  What we are talking about today is another in a long line of attempts 
by this administration to undermine the system of checks and balances 
by expanding the authority of the executive branch. These abuses of 
power have almost always related to provisions that are necessary for 
the smooth operation of government. Of course we need the ability to 
appoint a U.S. attorney in a time of crisis when Congress is not in 
session, but do we need that authority extended to a point where a 
sitting President can make a judicial appointment with no set 
termination? Absolutely not. The law the administration changed in the 
PATRIOT Act was well structured to provide the ability to appoint in 
times of emergency, while respecting the Senate's role in the process. 
The compromise put forward by Senators Feinstein and Specter seeks to 
restore that.
  The Senate's role in the confirmation process is vital as it provides 
a second review of the qualifications of a nominee and allows 
constituents a better opportunity to evaluate a nominee and state their 
support or opposition. I fear that this effort to diminish the Senate's 
role in the confirmation process is indicative of this administration's 
general attitude toward a vital provision of our Constitution and to 
the system of checks and balances in general. If given the choice, it 
would appear that this administration clearly favors less transparency 
in government, not more. If allowed to continue, I feel certain that it 
would result in the average constituent having much greater difficulty 
getting their voice heard on the appointment of nonelected officials. 
The power of our democracy rests with the people, and that is something 
we must never forget. It is for that reason that I support Senator 
Feinstein and Senator Specter and urge my colleagues to join with them 
in order to pass this legislation
  Mr. REID. Mr. President, I regret that we have not been allowed to 
move forward at this time on S. 214, a bill to preserve the 
independence of U.S. attorneys.
  This legislation is ready for floor action. It was the subject of a 
lengthy hearing in the Judiciary Committee and was favorably reported 
by that committee with bipartisan support.
  The bill would protect U.S. attorneys from being used as political 
pawns. It would limit the power of the Justice Department to appoint 
long-term replacements for departing U.S. Attorneys and instead 
authorize the chief Federal judge in a district to appoint a temporary 
replacement while the permanent nominee undergoes Senate confirmation. 
This is the process that was followed for decades until it was changed 
in the Patriot Act reauthorization.
  Last month, we learned that at least seven U.S. attorneys had been 
directed by the Department of Justice to resign. One of these was the 
U.S. attorney in my State of Nevada, Daniel Bogden.
  Let me take just a moment to thank Dan Bogden for his service. He has 
been the chief Federal prosecutor in Nevada since his appointment in 
2001. He is a former Washoe County deputy district attorney and had 
served as an assistant U.S. attorney for 10 years before being 
appointed as chief Federal prosecutor. He made it a priority to 
prosecute violent criminals and drug traffickers and his efforts have 
made Nevada safer. I appreciate all the remarkable work he has done for 
our State.
  The Deputy Attorney General testified that the U.S. attorneys who 
were forced out had ``performance issues.'' As far as I am concerned 
that is nonsense. Dan Bogden's last job evaluation described him as 
being a ``capable'' leader who was highly regarded by the Federal 
judges and investigators in our State.
  What is really going on here? According to news reports, the decision 
to remove U.S. attorneys was part of a plan to ``build up the back 
bench of Republicans by giving them high-profile jobs.'' In fact, at 
least one of the fired U.S. attorneys was replaced by a GOP opposition 
researcher who is known as a protege of Karl Rove.
  So what has happened might well be called ``Crony-gate.'' It may not 
be as far reaching a scandal as Watergate, but it is a scandal 
nonetheless. It represents a breach of the long tradition of 
independence that allowed these powerful Federal prosecutors to do 
their jobs without fear of political retribution. Now every U.S. 
attorney will be looking over his or her shoulder to see if Karl Rove 
or other White House aides approve of their decisions.
  The administration is in a position to ignore the Senate and place 
its own loyalists in these key jobs because of a little known change 
included in the Patriot Act last year at the insistence of the Justice 
Department. This provision lets the Attorney General make interim U.S. 
attorney appointments with no time limits, no residency requirements, 
and no need for Senate confirmation.
  I applaud Senators Feinstein, Pryor, Leahy, and others for addressing 
this problem swiftly. Their bill will help ensure that the people of 
Nevada have a say in who will be their next U.S. attorney. The Senate 
confirmation process for U.S. attorneys ensures transparency and 
accountability. We need to keep politics out of the justice system.
  I thank the Chair, and I yield the floor.
  The PRESIDING OFFICER (Mrs. McCaskill). The Senator from Idaho is 
recognized.

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