[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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