[Congressional Record Volume 153, Number 48 (Tuesday, March 20, 2007)]
[Senate]
[Pages S3292-S3307]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


[[Page S3292]]
       PRESERVING UNITED STATES ATTORNEY INDEPENDENCE ACT OF 2007

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of S. 214, which the clerk will 
report.
  The assistant legislative clerk read as follows:

       A bill (S. 214) to amend chapter 35 of title 28, United 
     States Code, to preserve the independence of United States 
     attorneys.

  Pending:

       Kyl amendment No. 459, to ensure that United States 
     attorneys are promptly nominated by the President, and are 
     appointed by and with the advice and consent of the Senate.
       Sessions amendment No. 460, to require appropriate 
     qualifications for interim United States attorneys.

  The ACTING PRESIDENT pro tempore. Under the previous order, there 
will now be 90 minutes of debate, equally divided between the two 
leaders or their designees.
  The Senator from New York is recognized.
  Mr. SCHUMER. Mr. President, I rise, first of all, to support Senator 
Feinstein's bill, which I proudly have been a cosponsor of, and I urge 
all my colleagues to do the same. I wish to thank Senator Feinstein for 
being the first to discover this provision and for asking the right 
questions, which then set us on this journey about the U.S. attorneys.
  Second, I wish to thank Senator Leahy, our leader in the Judiciary 
Committee on this issue, who has been stalwart in making sure we get to 
the truth.
  Some have been content to casually dismiss the administration's 
actions relating to the firing of the eight U.S. attorneys as a comedy 
of errors at the Justice Department. Make no mistake about it, this is 
no comedy, this is a tragedy. It is a tragedy for eight public servants 
whose reputations have been wrongly trashed. It is a tragedy for the 
reputation of the Justice Department, as a whole, and for the Attorney 
General, in particular. Most importantly, however, it is a tragedy for 
public confidence in our system of justice.
  How can people have faith when the documents show that in this 
Justice Department allegiance to party is apparently valued over 
loyalty to the rule of law? How can citizens not be cynical when it is 
clear the PATRIOT Act was cynically manipulated to bypass checks and 
balances?
  We all know politics plays a role in the Justice Department, but it 
should be second to rule of law. On too many issues in this Justice 
Department, politics came first and rule of law came second.
  Weeks ago, we suspected the provision we are correcting today was no 
more than a mechanism to allow end runs around the Senate and the 
people. The e-mails have proven our worst fears. This provision was 
apparently added to the PATRIOT Act not for efficiency or national 
security but to make it easier to install political loyalists. This is 
how Kyle Sampson, the former Chief of Staff to the Attorney General, 
described how the slipped-in PATRIOT Act should be manipulated:

       By using these provisions we can give far less deference to 
     home State senators and thereby get (1) our preferred court 
     person appointed, and (2) do it far faster and more 
     efficiently at less political cost to the White House.

  That is a memo to Harriet Miers.
  That scheme was, of course, followed to install Karl Rove's former 
deputy in the Eastern District of Arkansas.
  Here is another e-mail from Mr. Sampson:

       My thoughts: 1. I think we should gum this to death: Ask 
     the Senators to give Tim a chance, meet with them, give him 
     some time in office to see how he performs. If they 
     ultimately say ``no, never,''--and the longer we can 
     forestall that the better--then we can tell them we will look 
     for other candidates, ask them for recommendations, evaluate 
     the recommendations, interview their candidates, and 
     otherwise run out the clock. All of this should be done in 
     ``good faith,'' of course.

  That is an astonishing breach of trust. That shows that, at least 
according to Mr. Sampson, this provision could be used to keep 
political appointees in office for a long time.
  So there is no doubt we must pass this legislation, which provides--
and has always provided--for checks and balances on a runaway Justice 
Department. If there is proof that it was ever needed, it is the 
actions of the Justice Department in the last several months. I am 
especially amazed, given the proof that this secret midnight provision 
was willfully abused at the highest levels of the Justice Department, 
how anybody could not vote for Senator Feinstein's legislation. This is 
the latest example of an executive branch run amuck, the most recent 
evidence of a Justice Department almost drunk with its own power and 
with little regard for checks and balances.

  That is why our work will not be done when we pass this bill in a few 
hours. It is not enough to reform the law, we must repair the Justice 
Department.
  Finally, last night we received 3,000 pages of documents. Some in the 
administration have started to spin this: See, they were fired for 
cause. But if you look at these documents, that is not the case. They 
read like an ``Alice in Wonderland'' tale. There are thousands of pages 
of stock documents, and we still have no real idea why many of these 
fine men and women were fired.
  Mr. President, I ask unanimous consent for 1 additional minute.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. SCHUMER. Mr. President, the documents leave us scratching our 
heads in wonderment as to why they were fired. One e-mail shows that 
days before the purge, the Deputy Attorney General was uncertain about 
the reasons why Nevada U.S. attorney Daniel Bogden was fired: ``I'm 
still a little skittish about Bogden.''
  The documents show that far from exhibiting performance problems, New 
Mexico U.S. attorney David Iglesias is highly praised by officials in 
Washington and even considered for promotion. Similarly, Washington 
U.S. attorney John McKay is also praised 3 months before he was fired. 
San Diego U.S. attorney Carol Lam was strongly defended by the 
Department on her pursuit of immigration cases months before she was 
fired. Finally, another U.S. attorney, Patrick Fitzgerald, widely 
considered to be one of the finest and most apolitical prosecutors in 
the country, was ranked in the middle tier and described as 
``undistinguished.'' Meanwhile, two of the fired prosecutors were only 
a short time ago ranked in the top tier.
  The more we dig, the deeper the hole it seems the Justice Department 
is in, with still no clear explanation as to why these fine prosecutors 
were fired. Make no mistake about it, we will get to the bottom of 
this.
  This legislation is an early step, but we cannot rest until we have 
reformed the Department's ways and restored confidence, so that when 
people enter Justice Department buildings and see the eagle perched 
with arrows in her claws, it means justice and the rule of law, without 
fear or favor.
  Mr. President, I yield the floor.
  Mrs. MURRAY. Mr. President, every American needs to have confidence 
in our system of justice, but in the last few weeks that confidence 
has, frankly, been deeply shaken. Each day, we get new evidence that 
the Bush administration injected partisan politics into a process that 
requires independence, and each day we get more proof this 
administration has not been telling the truth.
  I am here today on this floor to support the bill to restore the 
Senate's constitutional advise and consent in confirming nominees to 
serve as U.S. attorneys. I am deeply troubled by the many ways the Bush 
administration has politicized the administration of justice because it 
threatens all Americans.
  Recently, we learned that the administration's political meddling 
reached into my own home State of Washington, and it led to the firing 
of a U.S. attorney who had received an excellent job performance review 
only months, months before he was fired. When I asked for answers, the 
Justice Department told me things that were not true. Deputy Attorney 
General Paul McNulty assured me the firing of John McKay was 
performance related. I didn't believe it at the time, and, 
unfortunately, the past few weeks have only confirmed my suspicions.
  As the facts come out, the administration's untruths are coming to 
light. First we were told the White House had no role in the firing. 
Now we learn this whole scheme originated in the White

[[Page S3293]]

House. At first we were told the firings were performance related. Now 
documents have disclosed that the Justice Department was evaluating 
U.S. attorneys based on their loyalty to the administration. We were 
also told a significant change in the PATRIOT Act was needed for 
national security and would not be abused. That also was not true. 
Every day, this story gets worse and worse and climbs higher up the 
political ladder. Now we have learned that senior officials in the 
White House, including the President's former counsel, Harriet Miers, 
and his top political adviser, Karl Rove, were key players in these 
firings.
  Why should folks at home care if the White House and Justice 
Department are politicizing the Office of the U.S. Attorney? It 
matters, and it matters for two reasons.
  First, any American can become the subject of a civil or criminal 
investigation by a U.S. attorney, an investigation that could upend 
their life or ruin their reputation, destroy their business, and 
ultimately cause the Government to take their life or their liberty. 
That is a tremendous amount of power, and we need to make sure the 
people who wield that power are launching investigations based on the 
facts and based on the law--not based on political pressure.
  Second, after all the ways the Bush administration has undermined the 
rights and liberties of our citizens, we need to vigorously stand up 
and fight back whenever new abuses come to light.
  I believe we could have gotten the facts sooner if we had gotten 
straight answers from the Attorney General from the start. 
Unfortunately, Mr. Gonzales can't seem to get his stories straight. At 
a press conference last week, he said he didn't know about it, but he 
is responsible for it. He said mistakes were made, but the firings were 
appropriate. He said he believes the U.S. attorneys should be 
independent, but they can be fired for any reason.
  Two years ago, I voted against confirming Alberto Gonzales as the 
Nation's top law enforcement officer. As I said in February of 2005, he 
``lacks the independence and honesty to be Attorney General.'' I also 
said his troubling record would not assure public confidence in the 
fair administration of justice. I take no joy in saying that my fears 
have been borne out.
  How did we get here? Last year, when Congress updated the PATRIOT 
Act, a change was inserted at the request of the White House. This 
change was not debated. It was made without the knowledge of many of us 
here in the Senate. Today, we know that change to the PATRIOT Act 
played an important role in this entire scheme. It significantly 
lowered the difficulty of removing any U.S. attorney and replacing him 
or her without consulting anybody.
  We need to end these abuses. I support the bill that is before the 
Senate today because it will restore the Senate's role in confirming 
U.S. attorneys, and it will also restore a critical check on the 
administration's power.
  Traditionally, when there has been a vacancy for a U.S. attorney, the 
White House has sent a nomination over here to the Senate. Last year, 
the White House changed that procedure.
  The ACTING PRESIDENT pro tempore. The time of the Senator has 
expired.
  Mrs. MURRAY. I ask unanimous consent for 1 additional minute.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mrs. MURRAY. Last year, the White House changed that procedure by 
slipping a change into the PATRIOT Act reauthorization. With that 
change, the White House was then able to install interim U.S. attorneys 
indefinitely without going through the normal Senate approval process.
  This bill which is before us now restores the role of the Senate in 
confirming interim nominees. This legislation will force the White 
House to work with the Senate and home State Senators. This bill is an 
important step to protecting the U.S. Attorney's Office from the 
politicization it has suffered.
  I urge my colleagues to take a step forward for justice and pass this 
critical reform today.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Minnesota.
  Ms. KLOBUCHAR. Mr. President, I ask to proceed for 5 minutes.
  The ACTING PRESIDENT pro tempore. The Senator is granted that right.
  Ms. KLOBUCHAR. Mr. President, as a former prosecutor, I am here to 
speak in behalf of S. 214. I would first like to thank the members of 
the Judiciary Committee for introducing and reporting out this 
important bill, and I am proud to be a cosponsor.
  I returned from Iraq yesterday, and I look forward to reflecting on 
lessons learned from that trip later on this week. But I will say that 
my Senate colleagues and I had extensive discussions with Iraqi 
political leaders as well as the American military about the need to 
restore the rule of law in Iraq. I have always been proud that our 
judicial process has been the gold standard for the rest of the world. 
It is ironic, then, that even as I spoke with Iraqi leaders about their 
challenges, we Americans were learning a very public lesson about how 
the rule of law can be undermined in even the most advanced 
democracies.
  We have learned this past month that our Nation's chief law 
enforcement officer, our leading guardian of the rule of law in this 
country, has allowed politics to creep too close to the core of our 
legal system. This administration has determined that Washington 
politicians, not prosecutors out in the field--and perhaps, in some 
cases, not even the facts--will dictate how prosecutions should 
proceed. The consequences are unacceptable.
  Good prosecutors, by all accounts doing their jobs, upholding their 
oaths, following the principles of their profession, basing their 
decisions on the facts before them, were pressured and/or fired and/or 
unfairly slandered by this administration. All of this, it would seem, 
was motivated by rank politics. That is simply not how we do things in 
this country. That is why, last week, I called for the Attorney General 
to resign.
  Before I came to the Senate, I was a prosecutor. I managed an office 
of nearly 400 people, and we always said in our office: If you do the 
right thing, if you do your job without fear or favor, at the end of 
the day, you have no regrets. It may not be easy; whatever your 
decision is, it may not make everyone happy, you may have to explain 
it, but if you do your job without fear or favor, you have no regrets. 
That was true, even though I was elected through the political process. 
I checked politics at the door when I came to my job.
  I remember when I first came to my office there were two prosecutors 
in the office who supported my opponent. I went and met with them the 
day after I was elected, and I said: I heard nothing but good things 
about you two, I heard you are great prosecutors, and I would like to 
know what are the jobs you want in the office. One of them wanted to be 
head of the drug team, the other wanted to be head of the gang team, 
and I put them in those jobs and never regretted it. They did 
incredible jobs, got along well with the police, and they worked well 
with the community. That is because we knew, when it came to 
prosecutions, there were boundaries. Those boundaries, this month in 
Washington, we found out were crossed.
  Another case I will always remember is a case where we prosecuted a 
judge who had stolen $400,000 from a mentally disabled woman he was 
supposed to protect. This young woman lived in a world of stuffed 
animals and dolls. She needed people to take care of her. He was the 
person who was in charge of her money in her accounts, and he 
systematically stole all $400,000 in those accounts. He was a 
politically connected judge. He was a Democrat. When that case came 
into our office, I got so many calls, dozens of calls, from people in 
the community, political people, saying: You know, he messed up, but he 
is a good guy. He should not go to jail.
  He went to jail. We asked for a 4-year sentence, and we got that 
sentence. I still remember that courtroom packed with all of his 
friends, all of his pals, but we did the right thing, and at the end of 
the day we had no regrets.
  This is a tradition in our country, a simple and deeply rooted 
tradition that our party affiliation should not get in the middle of 
decisions about whom we prosecute and how we enforce the law.

[[Page S3294]]

That tradition is as true--perhaps even more true--in our Federal 
prosecutor's office as it is in the local DA's office. This tradition 
emerged because our justice system is ultimately built on a foundation 
of trust. Without that trust, the system does not work.
  When our leaders play politics with the judicial process, we lose 
that trust. When people get fired for political reasons, we lose that 
trust. When good prosecutors are removed to make room for political 
cronies, we lose that trust. In losing that trust, the very lifeblood 
of our justice system comes under threat.
  The legislation we are considering will not undo the damage this 
administration and this Attorney General have caused, but it will 
prevent this Attorney General and future Attorneys General from ever 
doing something like this again.
  It is time once again to allow Federal prosecutors to do their jobs 
without fear or favor. It is time to place much needed limits on an 
administration that has far too often and far too flagrantly exceeded 
its authority and abused the public trust. Today, by passing this bill, 
we seek to curb that abuse and to give trust back to those who gave it 
to us--the people of this country.
  Mr. President, I suggest the absence of a quorum, and I ask that the 
time be charged equally to both sides.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. CARDIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. CARDIN. Mr. President, I take this time to rise in support of S. 
214, Preserving United States Attorney Independence Act of 2007. This 
legislation would restore the appointment of our interim U.S. attorneys 
to how it was prior to the passage of the PATRIOT Act.
  The PATRIOT Act included a provision many of us did not know was in 
that legislation. It was a provision that affected the appointment of 
interim U.S. attorneys.
  Prior to the passage of that provision, the Department of Justice had 
the ability to appoint interim U.S. attorneys for up to 120 days, 
without the confirmation of this body. This legislation will restore 
that provision, which will establish the right balance between the 
executive and legislative branches of Government. It will encourage the 
Department of Justice to work with this body so that interim U.S. 
attorneys and permanent appointments can be considered timely and the 
confirmation process can move forward. Most importantly, this 
legislation is necessary because of the recent actions of the 
Department of Justice in removing several U.S. attorneys, which is 
currently under investigation by the Judiciary Committee.
  I serve on the Judiciary Committee. On March 6, we had a hearing that 
I think was remarkable. It was unfortunate because we had former U.S. 
attorneys who appeared before our committee and talked about being 
intimidated and pressured by the Department of Justice and by the White 
House. They were fired despite the fact that they had received 
excellent performance evaluations by the Department of Justice. In 
several of these cases, the office was involved in high-profile 
political investigations, some of which the administration was not 
happy about.
  The U.S. attorney is the chief Federal law enforcement officer in our 
States. The U.S. attorneys must work independently. The Attorney 
General must carry out his responsibility for the entire country. He is 
not the attorney for the President. The Department of Justice must 
maintain that independence. A U.S. attorney has enormous power to 
determine who should be investigated, who should be prosecuted, and 
what type of punishment should be recommended. It is a tremendous 
amount of power which must be exercised with total independence.
  The manner in which these eight U.S. attorneys were removed from 
office raised many concerns that all of us should be concerned about. 
This raises concerns about the independence of the U.S. attorney and 
whether these investigations will be conducted with the public interest 
in mind or to further a political agenda. It raises concerns as to 
whether the Department of Justice or the White House was trying to 
influence the independent judgments of the U.S. attorney in a specific 
investigation. It raises concerns as to how Congress was kept informed 
as to how these removals were being handled. Information that was made 
available to us was inconsistent and certainly raises questions as to 
whether Congress itself was being misled by the Department of Justice. 
This raises concerns about the morale within the U.S. Attorney's 
Offices throughout the country and whether they will be able to attract 
the best possible people in order to prosecute these activities and get 
the best people in the U.S. Attorney's Office.
  The work of this body is continuing as it relates to the U.S. 
attorneys. The Judiciary Committee is continuing its work. I must tell 
you that I know there were a lot of documents made available last night 
to the Judiciary Committee, but what we need to have is the personal 
appearance of those who were directly involved--Ms. Miers, Mr. Rove, 
Mr. Sampson. Those testimonies need to take place in the Judiciary 
Committee, open testimony, so we can get the information as to what 
exactly happened in regard to the dismissal of these U.S. attorneys and 
whether it was improper activity, trying to influence the judgment of 
our U.S. attorneys.
  It starts with the passage of S. 214. It starts with our restoring 
the proper balance between the executive and legislative branches of 
Government as it relates to the use of interim U.S. attorneys and the 
confirmation process by this body.
  I urge my colleagues to support S. 214 and to support the work of the 
Judiciary Committee as we continue our investigation as to the 
dismissal of U.S. attorneys.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Arizona.
  Mr. KYL. Mr. President, I have listened with interest to all of my 
colleagues who have made a case for changing the law, but I have yet to 
hear any of them discuss the specific proposal they presumably intend 
to support. The disconnect is that it does not solve the problem they 
have identified. It doesn't even begin to solve the problem.
  I urge my colleagues, before simply voting on a partisan basis for a 
bill which is allegedly designed to solve a problem, that they at least 
ask the question whether it solves the problem they have identified. It 
does not.
  That is why I proposed an amendment that does solve the problem. I 
urge my colleagues, before they vote in 45 minutes, to read the 
underlying bill--it is only 2\1/2\ pages--to read my amendment--it is 
about the same length--and perhaps to listen to 5 minutes of what I 
have to say.
  This is not partisan. We are going to have Republicans and Democrats 
as President and a Republican- and Democratic-controlled Senate. We 
want the U.S. attorneys to be nominated by the President, and we want 
the Senate to be able to act on the nominees. The underlying bill does 
not guarantee that. In fact, it does not even provide for it. My 
amendment ensures that happens.
  So I urge my colleagues, you have stated the case for a change. 
Please listen to what I have to say because I think you will see that 
the bill, the underlying bill, was drafted in great haste; it does not 
solve the problem. My amendment does. I made several arguments 
yesterday on behalf of this amendment. I argued that it corrects the 
flaws in the underlying bill that all of us should want to correct.
  Briefly, yesterday, I noted that the committee-reported bill does not 
ensure the President will nominate a U.S. attorney. That is the first 
thing we want to happen. Secondly, as a result, therefore, it certainly 
does not solve this problem my colleagues have been trying to identify 
here this morning about being accountable for Federal criminal 
prosecutions.

  Secondly, the Senate would have no say in the selection of a U.S. 
attorney who is appointed by a Federal judge, which the committee-
reported bill allows to happen.
  Third, I noted that even the district judges themselves do not want 
to be

[[Page S3295]]

placed in the position of selecting the U.S. attorneys. They have found 
this to be a conflict of interest, and they have refused in some cases 
to appoint a U.S. attorney.
  Fourth, I have argued that the district judges are ill-equipped in 
selecting U.S. attorneys. By the way, to my knowledge, no one has 
sought to dispute what I have been saying here.
  Fifth--I think this would be of interest to my Democratic 
colleagues--the committee-reported bill does not even end the practice 
of allowing an individual to serve as a U.S. attorney without Senate 
confirmation and without a nomination even being sent to the Senate. 
The committee-reported bill restores the 1986 to 2006 statutory 
language, and that language allowed consecutive appointments of interim 
U.S. attorneys by the Attorney General--the exact practice my 
Democratic colleagues are criticizing here today. So they permit the 
continuation of exactly what they object to. It would allow an 
administration to stack the terms of acting U.S. attorneys and interim 
U.S. attorneys, which would allow an individual to serve as U.S. 
attorney for nearly a year without confirmation ever being submitted to 
the Senate, and perhaps beyond that.
  I made these same arguments in a ``Dear Colleague'' I circulated 
Monday morning. I am going to try to have that letter distributed to 
the desks of all Senators, so when they arrive, they can at least take 
a look at it and evaluate what I am saying.
  Yesterday, I had expected that opponents of my amendment would come 
to the floor and respond as to why they disagreed with my amendment. A 
significant number of Democratic Senators did come to the floor 
yesterday and today to speak to the bill. All of them urged passage of 
the bill. Not one of them even mentioned my amendment, an amendment the 
Senate will be voting on in about 45 minutes.
  My staff ran a computer search this morning to see if someone at 
least had the decency to submit a statement for the record explaining 
why they opposed my amendment. No such statement exists. I listened 
carefully to the speeches this morning. All made a case for a change. 
Not one referred to the underlying bill or showed how it solves the 
problem, because it does not, and not one referred to my amendment, 
which, as I said, does solve the problem they have identified.
  I understand this issue has become very political. I understand there 
is great pressure within the Democratic caucus to vote down any 
amendments to preserve an undiluted victory over the administration. 
But this has nothing to do with the political issue that is raging out 
there; it has to do with solving a specific problem we have all agreed 
exists with the existing law, a problem not solved by the underlying 
bill.
  I would urge my colleagues to think before they jump over this cliff. 
We are all elected to a 6-year term for a reason: We are given this 
much time so we can stop and think about things and not be rushed into 
decisions that in retrospect do not appear to be a very good idea. That 
is how the legislation got into the PATRIOT Act that everybody is 
complaining about today. We are going to be compounding one mistake, I 
expect, with another.
  Allow me, therefore, to make one final pitch to my colleagues on the 
Democratic side who presumably simply will follow the leader and vote 
against my amendment without having read it or the underlying bill. If 
you think about the long term, I think you will agree that my proposal 
is the one that makes sense. But let us think about the short term and 
compare how the committee-reported bill and my amendment would operate 
over the remaining 2 years of this administration. Let's see how they 
work.
  Under the committee-reported bill, which presumably would be signed 
into law maybe in April, all interim U.S. attorneys would continue to 
serve for another 120 days until sometime in July. What would happen 
then, after that 120 days? One of three things could happen.
  A district judge could pick a U.S. attorney. Well, the Senate has no 
say in that. Most judges who do so are very likely to reappoint the 
current interim U.S. attorney. If the judge does so, that interim U.S. 
attorney could serve through the remainder of this administration 
without a nomination ever having been sent to the Senate.
  The second alternative is that if the district judge does not choose 
to appoint an interim U.S. attorney, the Attorney General could then 
reappoint the current one to one or more consecutive terms--the very 
thing all of my colleagues on the Democratic side have objected to 
here, that the Attorney General could appoint an interim U.S. attorney. 
That judicial district would have a U.S. attorney, likely for the 
remainder of the administration, who was not submitted to or confirmed 
by the Senate.
  The third possibility under the committee-reported bill is that after 
the 120 days are up, sometime in July, the administration could simply 
designate the interim U.S. attorney as the acting U.S. attorney--a 
designation that could last until March of 2008 without a nomination 
having ever been submitted the Senate. By March of 2008, it is likely 
that no nomination would ever be submitted to the Senate and that the 
acting or interim U.S. attorney would simply be recess-appointed for 
the remainder of the President's term.
  In all three scenarios, no Presidential nomination, no Senate 
confirmation or consideration of the nominee--the very thing the 
Democrats here are objecting to would continue to exist under the bill 
so many of them have spoken in support of.
  The bottom line is, if the Senate blindly votes down my amendment and 
passes the committee-reported bill without fixing any of its flaws, the 
judicial districts that have no Senate-confirmed U.S. attorney today 
will stand an excellent change of having no Senate-confirmed U.S. 
attorney for the remainder of this administration.
  Compare this to the result that would happen if my amendment were 
adopted. Under my amendment, the interim authority is repealed in its 
entirety. In other words, the main thing my Democratic colleagues have 
complained about--that Attorney General Gonzales can make an interim 
U.S. attorney appointment--would be gone. He would not be able to do 
that anymore. Not so under the bill.
  Under my amendment the President would be required to nominate a U.S. 
attorney candidate within 120 days; obviously, by the middle of summer. 
Under my amendment, even if the President doesn't comply with this 
deadline because acting authority expires after 210 days if no 
nomination is submitted, the President would be forced to nominate a 
U.S. attorney before the end of the year. The bottom line is, if my 
amendment is adopted, all judicial districts in the country will have a 
Senate-confirmed U.S. attorney or at least a nomination pending in the 
Senate for most of the remainder of the administration.
  Just in case my colleagues think I am kidding, lets look at the 
underlying bill. This is all there is to it. There is not a whole lot 
here. Let's read what it says. First, it says:

       The Act may be cited as the ``Preserving United States 
     Attorney Independence Act of 2007.''

  That is a misnomer if I ever heard one. Why? The code is amended by 
striking the provision above and inserting the following:

       A person appointed as United States Attorney under this 
     section may serve until the earlier of--
       (1) the qualification of a United States attorney appointed 
     by the President--

  That is the normal process--

     or
       (2) the expiration of 120 days after appointment by the 
     Attorney General under this section.

  Wait. I thought the object was not to have the Attorney General 
appoint U.S. attorneys. Let's read this again:

       Or . . . the expiration of 120 days after appointment by 
     the Attorney General under this section.

  So under the underlying bill, the Attorney General still gets to 
appoint interim U.S. attorneys. Not so under my amendment. That section 
is repealed. Or, third:

       If an appointment expires under subsection (c)(2), the 
     district court for such district may appoint a United States 
     attorney until the vacancy is filled.

  The district court, for all the reasons we have discussed, is not the 
best entity to be appointing a U.S. attorney. All of us would agree it 
would be preferable not to have the district court do that. In any 
event, if the object is to preserve the Senate's ability to evaluate a

[[Page S3296]]

nominee and to act on that nomination and reject it or confirm the 
individual, we have no such authority if the district judge appoints 
the U.S. attorney.
  So there are three possibilities. That the President would nominate 
is one; but if he does not, there is no penalty. For those who argue 
that the President is trying to get by with something by having his 
Attorney General appoint interim U.S. attorneys who never have to be 
confirmed by the Senate, under this first point the President can 
simply do nothing, and then his Attorney General can appoint an interim 
U.S. attorney. I thought that was what we were trying to avoid. If the 
Attorney General doesn't do it, then a Federal court judge can do it. 
In none of those cases does the Senate have anything to say about it.
  Clearly, the bill doesn't solve the problem that everybody has 
identified. My amendment, on the other hand, does. It does so in three 
specific ways. This is all of one page and three lines. It is not hard 
to read. What we say is that under the new law, if my amendment is 
adopted, section 546 of title 28 is repealed. That is the interim 
appointment authority of the Attorney General, the thing that everybody 
is objecting to: Alberto Gonzales is going to appoint an interim, and 
the Senate will never have a chance to act on that nominee. My 
amendment eliminates his ability to do that or any subsequent Attorney 
General, unlike the underlying bill.
  So how would we fill the vacancy?

       Not later than 120 days after the date on which a vacancy 
     occurs in the office of United States attorney for a judicial 
     district, the President shall submit an appointment for that 
     office to the Senate.

  My amendment, unlike the underlying bill, requires the President to 
make a nomination within 120 days. Why? A, the President should be 
making these nominations--as we all agree--B, the Senate would then 
have the ability to act on that nomination. How do we know? Because we 
also say that 120 days after the date of submission of an appointment 
under paragraph 1, ``the Senate shall vote on that appointment.'' So we 
have ensured that the President will make a nomination and that the 
Senate will act on that nominee.
  People have said: But you can't sue the President for not actually 
nominating someone. So we have a final provision that creates a very 
strong incentive for the President to nominate to fill the vacancy:

       If the President fails to comply with paragraph (1) with 
     regard to the submission of any appointment for the office of 
     United States attorney, paragraph (2) of this subsection 
     shall have no force or effect with regard to any appointment 
     to the office of U.S. Attorney during the remainder of the 
     term of that President.

  What that means is that the President has a very strong incentive to 
nominate people to fill the vacancy so that the Senate can act on that 
nomination because, if he fails to do so, the requirement that the 
Senate act on his nominations for U.S. attorney is vitiated for the 
remainder of his term. He no longer has any assurance that his nominees 
will be acted upon by the Senate.
  This is about as simple--it is all on one page--a way of solving the 
problem that I can imagine. Let me summarize. The problem my colleagues 
have suggested is that in the PATRIOT Act we put a provision that 
allows the Attorney General to fill vacancies with an interim U.S. 
attorney, and the Senate has no say-so. Under the bill, that exact 
process continues. It is not changed. We haven't solved a thing in that 
regard.
  What we have said is, if he doesn't do that, a district judge could 
fill the vacancy. That is a great solution. Actually, it is not great. 
District judges don't want the authority. They haven't exercised it 
well in the past. They are not the best people; in fact, they have an 
inherent conflict of interest to be appointing prosecutors who are 
going to appear before them. In any event, the Senate has no ability to 
act on the nominee. It is not even a nominee, it is an appointment. The 
Attorney General can appoint or a Federal district judge can appoint. 
In neither case does the Senate get an opportunity to confirm or reject 
the nominee.
  The underlying bill does not solve the problem that everybody is 
talking about. Only my amendment solves the problem which says, first, 
the ability of the U.S. Attorney General to fill these vacancies with 
an interim U.S. attorney is now gone. He cannot do that anymore. The 
very thing we don't like can't happen under my amendment.

  Secondly, instead of having a Federal district judge appoint a 
prosecutor with no Senate confirmation, we require the President to 
make his nomination, that the Senate will act within 120 days of 
receiving that nomination, and if the President fails to do so, the 
Senate no longer has to act on any of his U.S. attorney nominations for 
the remainder of his Presidency.
  Those who have argued that there is a problem have an obligation to 
explain how their proposed solution solves the problem. I issue this 
challenge to any of my Democratic colleagues who plan to vote for the 
underlying legislation, S. 214.
  Please come to the floor within the next 40 minutes and explain to me 
what it is in these two pages that solves the problem. Can they point 
to where the Attorney General can no longer appoint a U.S. attorney? 
No, they cannot. It says right here that the Attorney General can 
appoint an interim U.S. attorney, and the Senate can't do anything 
about it.
  Can they show how the Senate would be able to act on the appointment 
by a Federal district judge? No. It says that a Federal district judge 
may appoint the U.S. attorney. Not nominate, appoint. Again, the Senate 
has nothing to say about it.
  I challenge my Democratic colleagues--they have done a great job of 
saying we have a problem--to show me how their bill solves the problem. 
Have enough humility to come to the Senate floor and say: We made the 
case for a change. We are willing to acknowledge that actually your 
solution is a better solution than ours, and we are willing to say we 
will support your solution.
  That would solve the problem. For the future we would all be happy. 
We wouldn't have politics dictate the solution that in the end doesn't 
work to anybody's satisfaction.
  I urge colleagues, vote yea on the Kyl amendment to solve the problem 
that has been presented.
  Mr. SESSIONS. Will the Senator yield for a question?
  Mr. KYL. Absolutely.
  Mr. SESSIONS. We have people pointing out a flaw in the current bill 
that we did pass, that the Senator acknowledges is there, and I 
acknowledge is there. People cite potential abuses from the system. But 
as the Senator was speaking yesterday on his amendment, a hypothetical 
came to mind. He has been in the Senate a long time. He is one of the 
great lawyers in the Senate. He has been on the Judiciary Committee for 
many years.
  Let's assume this hypothetical: A President of the United States 
believes strongly that the Federal gun laws should be enforced, that 
the Federal immigration laws should be enforced, that the Federal death 
penalty should be enforced. He or she nominates a person who shares 
those general philosophies to be U.S. attorney. Under the Feinstein 
amendment, if this Senate were a liberal Democratic Senate that didn't 
share those views and did not confirm that U.S. attorney within 120 
days, it would then fall to a district judge in some district to make 
that appointment. Would the Senator agree with that?
  Mr. KYL. Mr. President, there are two alternatives in that situation. 
Either the President's Attorney General could appoint an interim U.S. 
attorney with no Senate confirmation or a district judge could appoint 
that U.S. attorney with no Senate confirmation.
  Mr. SESSIONS. The Feinstein legislation would have the judge make 
that appointment.
  Mr. KYL. Actually, there are two alternatives. Let me read them. I am 
reading from the bill. I urge my colleagues to read the bill. It really 
helps.
  There are two options if the President does not submit a nomination. 
This is No. 2, if the President hasn't nominated someone, ``the 
expiration of 120 days after appointment by the Attorney General under 
this section.''
  The first option is that the President could try to submit another 
nomination. But if he chose not to do so, his Attorney General could 
appoint the U.S. attorney. Or the third possibility is, if an 
appointment expires under this section, the district court for such 
district may appoint a U.S. attorney. So

[[Page S3297]]

there are two options if the President doesn't nominate another 
candidate. His Attorney General can appoint the U.S. attorney, with no 
Senate confirmation, or a Federal district judge can appoint the U.S. 
attorney with no Senate confirmation.
  Mr. SESSIONS. Federal judges I have practiced before had 
philosophical views. Some of them have been pretty activist Federal 
judges. Some of them think there are too many gun prosecutions in 
Federal court, too many drug prosecutions, maybe too many immigration 
prosecutions. They could, under that power, appoint someone who would 
not follow the policies of the President who was elected to set 
prosecutorial policy; is that not correct?
  Mr. KYL. Mr. President, that is exactly correct. Let's go to the 
other side of the coin. The President's own Attorney General could 
appoint someone who very aggressively followed his policies, and the 
Senate would have nothing to say about it.
  Mr. SESSIONS. That is correct also. I suggest this is an odd thing we 
are doing. This is an executive branch appointment. That is what has 
been contemplated since the founding of the Republic, and that is what 
we have done since the founding of the Republic.
  I was a U.S. Attorney for 12 years. It was always considered an 
oddity, if some vacancy occurred and the confirmation did not occur 
within the required time, that a Federal judge would be involved in 
appointing an executive branch appointment. But that is what the 
statute was. It worked to some degree, and we went on with it over the 
years.

  But it was never a thoughtful, principled approach to how the 
executive branch of the Government should be operated because I am not 
aware of any other appointment in the executive branch of Government 
for which if it is not filled in a timely basis, the Senate--a coequal 
branch--can up and fill that appointment, nominate and fill it; nor am 
I aware of any other office in the entire Government where a Federal 
judge would fill it if the Senate did not act properly or the President 
did not nominate and follow through properly.
  I want to say I think Senator Kyl's solution to this problem is 
thoughtful. The more I considered it, the more I believed he was on the 
right track. Truthfully, if our colleagues who are concerned about the 
difficulty in the statute would pay attention to what he has said, you 
would want to support the Kyl amendment because it goes beyond 
President Bush. He has less than 2 years left in his term. There will 
be another President, and this law could be in effect for hundreds of 
years.
  So what is the right, principled approach to the appointment of U.S. 
attorneys? The right approach is that it should be done by the 
executive branch because it is an executive branch function. I was the 
attorney general of Alabama. The court did not appoint me. I was 
elected by the people in a political race. Most attorneys general are 
elected in political races around the country.
  Prosecutors are accountable to policies. They are responsible for 
effectively utilizing limited resources to effect appropriate and just 
policies of the United States. Presidents and the people of States who 
elect them elect them to execute certain policies. They usually 
understand that and make commitments to that as a political candidate, 
or the President asks if they will support his policies before he 
appoints them.
  Now, I want to say this very clearly. Every U.S. attorney who is 
worth 2 cents understands they did get their office through some sort 
of political process. Confirmation in the Senate is a political 
process. A lot of the talk we have had about U.S. attorneys has been 
more politics than substance in the last few days. It is a political 
process.
  But what is absolutely critical is that U.S. attorneys remember the 
oath they took. That oath is to faithfully enforce the law, whether it 
involves a Republican, a Democrat, a rich person, or a poor person; 
that no matter what their station in life, they treat everyone fairly 
and objectively. They must comply with that. They have been given the 
chance to do the job, like any attorney general is who runs and gets 
elected. But their oath, their responsibility, their duty is to do it 
correctly.
  You get pressure all the time. They say: Well, somebody tried to 
pressure a U.S. attorney. It should not happen from Congress, in my 
view. I do not believe that. I would not call a prosecutor to suggest 
that I know more than they know about a case that is before them. But 
sometimes newspapers write editorials: You are not prosecuting this 
case. Sometimes local mayors and politicians say: You should not be 
investigating this case. You are under pressure all the time. If a 
person is not strong and is not committed to integrity and the right 
principles and doing the right thing, they are going to be a sorry U.S. 
attorney. That is the bottom line. It is not a job for the cringing or 
the weak, I will tell you. I had to make some tough calls. In one case 
where I prosecuted against two judges, I remember one of the legal aid 
lawyers who testified on my behalf--his client did--he told me during 
the trial: Jeff, if these guys are acquitted, both of us are going to 
have to go to Alaska. It is tough business. You have to do what you 
think is right and proceed with the case.
  Now, if Senator Kyl's amendment is not accepted, I have an amendment 
I think would help. I hope Senator Feinstein would not be maybe even 
opposed to it, although I am not sure she is comfortable with it at 
this point. But I would point out to my colleagues and ask them to 
consider this amendment as an appropriate step.
  My amendment would make a very limited modification to the underlying 
Feinstein bill, if it moves forward without the Kyl amendment, to 
ensure that only qualified candidates will be appointed by judges to 
serve as interim U.S. attorneys. The amendment allows district judges, 
under this statute, if it becomes law, to appoint only those 
individuals who are qualified and have proper background checks and 
security clearances.
  Under my amendment, a district court can only appoint an interim 
attorney if they are a current DOJ, Department of Justice, employee or 
a Federal law enforcement officer, employee, who is already authorized 
by law or by a Government agency to engage in or supervise the 
prevention, detection, investigation, or prosecution of any violation 
of Federal criminal law.
  This effectively places the same limitations in effect to which the 
Department of Justice adheres when making interim appointments on 
district judges. According to the Department of Justice, in addition to 
the full field investigation, background check conducted by the Federal 
Bureau of Investigation--when you are appointed to be U.S. attorney, 
they conduct a full field investigation by the FBI to see if you have 
any skeletons in your closet, to see if you are worthy of the office 
and if you can be trusted. That is done for every interim U.S. 
attorney, too.

  Further, the Department of Justice reviews matters under the 
jurisdiction of the Department's Office of the Inspector General, 
Office of Professional Responsibility, and the General Counsel's Office 
at the Executive Office for United States Attorneys to see if this 
Department of Justice employee has problems, to see if there are 
complaints, deficiencies, ethical complaints about the person. That can 
also keep them from being appointed.
  So even if the candidate is a qualified DOJ employee or Federal law 
enforcement officer, a district court would not be allowed to appoint 
them if the court learns they are under investigation or have been 
disciplined by the DOJ or other Federal agencies such as the inspector 
general or the Office of Professional Responsibility.
  Finally, the amendment requires a district judge to confidentially 
inform the Department of Justice, the Attorney General, of the identity 
of the person they expect to name 7 days before the appointment so 
these checks can be made.
  I think this has two saving graces. It will eliminate some examples 
we have had of judges appointing people who should not have been 
appointed, who were not qualified to examine the cases in the office 
because those cases required security clearances, as all grand jury 
testimony does, for that matter. They did not have those security 
clearances. That is important. Also, since the prosecution of criminal 
cases is an executive branch function, the appointment being from the 
Department of Justice would at least be making it an

[[Page S3298]]

appointment from the executive branch of the United States.
  Both of those, I think, are healthy policies. I join with Senator Kyl 
in saying, let's do this thing right, if we are going to do it. It is 
going to be there maybe for 100 or more years. Let's set a policy that 
would be principled and consistent with the separation of powers that 
has served us so well and we can be proud of, and not focusing on this 
specific set of events that led us to these ideas.
  Mr. President, I thank the Chair and yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the use of 
calculators be permitted on the floor of the Senate during 
consideration of the budget resolution.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. LEAHY. Mr. President, I see the Senator from California on the 
floor, and I am about to yield to her. Could I ask, Mr. President, how 
much time is available to the Senator from Vermont or his designees?
  The ACTING PRESIDENT pro tempore. Eight minutes.
  The Senator from California has 5 minutes.
  Mr. LEAHY. Mr. President, the Senator from Vermont has 8 minutes; the 
Senator from California has 5?
  The ACTING PRESIDENT pro tempore. That is correct.
  Mr. LEAHY. Thank you, Mr. President.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, thank you. And I thank the chairman of 
the committee as well.
  Mr. President, I rise today to speak in support of S. 214. As we all 
know, that is a bill to reinstate the Senate's role in the confirmation 
process of U.S. attorneys. I thank both Senators Leahy and Specter for 
supporting this bill. I wish to say right upfront I believe we should 
pass a clean bill today. I have had the privilege of working with both 
Senators Kyl and Sessions. I understand their amendments, but 
essentially what I have been trying to do is put the law back to the 
way it was before the PATRIOT Act reauthorization.
  Now, at that time--March of last year--unbeknownst to Democratic and 
Republican Senators a provision was included in the PATRIOT Act 
reauthorization that essentially allows the Attorney General to appoint 
an interim U.S. attorney for an indefinite period of time without 
Senate confirmation.
  Surprisingly, less than 1 year after receiving this new authority, 
serious allegations and abuse of the process have come to light. We now 
know that at least eight U.S. attorneys were forced from office, and 
that despite shifting rationales for why, it has become clear that 
politics has played a considerable role.
  We know that six of the U.S. attorneys who were fired were involved 
with public corruption cases. Unfortunately, it is now clear that the 
bigger issue is what we do not know. Despite last night's production of 
some 3,000 pages related to the firing process, we are now faced with a 
growing list of unanswered questions, including:
  What was the White House's role in these decisions?
  In one e-mail produced last night, there is a conversation about 
involving the President in the process, and asking who decides what his 
level of involvement should be. But there are no subsequent documents 
showing the answers. Obviously, the question is: Who did decide and 
what was his role?
  Who made these determinations about who to fire, and who was involved 
in the loyalty evaluation? Again, the documents produced last night do 
not answer this question, and we are still faced with several lists of 
targeted U.S. attorneys that beg the question: Who else was a target 
and what happened?
  We also need to know what role, if any, did open public corruption 
cases play in determining who would be fired? What was the Attorney 
General's role in the process? Was the change to the law in March of 
2006 done in order to facilitate the wholesale replacement of all or a 
large number of U.S. attorneys without Senate confirmation?
  While I believe the Senate and the House will exercise our due 
diligence investigating these questions, we have an opportunity right 
now to ensure this politicization of U.S. attorneys does not happen 
again.
  The bill before the Senate would return the law to what it was before 
the change that was made in March of 2006. It would still give the 
Attorney General the authority to appoint interim U.S. attorneys, but 
it would limit that authority to 120 days. If after that time, the 
President had not nominated a new U.S. attorney or the Senate had not 
confirmed a nominee, then the district courts would appoint an interim 
U.S. attorney. This is the process that was developed under the Reagan 
administration and it worked from 1986 to 2006. That is 20 years. It 
worked with virtually no problems for 20 years.

  I think it is important we reinstate these important checks and 
balances and ensure that Senate confirmation is required. So I urge my 
colleagues to support the bill and to vote against all amendments.
  I think it is necessary we pass this bill today, and I hope it is by 
a very substantial margin. I am so distressed at the politicization of 
the Department of Justice. I am so distressed that there is not an 
arm's length between politics and the law today in this country. I 
believe it is a very serious situation. I believe strongly that once 
the U.S. attorney takes that oath of office, they must be independent, 
objective, and follow facts wherever they lead them in the pursuit of 
justice. I believe that is what both political parties want and I 
believe that is what the American people want. There is only one way we 
are going to get back there with U.S. attorneys, and that is by simply 
returning the law to what it was before.
  I also wish to point out the administration's interest in saying this 
is a political appointment has a limit, and I have expressed what that 
limit is. The only way we are going to effect the necessary changes is 
to pass this law this morning, and I very much hope it will be passed 
and passed without amendment.
  I thank the Chair, and I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Vermont is 
recognized.
  Mr. LEAHY. Mr. President, I thank the Senator from California for her 
statement and her leadership. She has been so forthright in her 
comments right from the beginning of this scandal, and I appreciate it. 
I will have more to say about her efforts at the end of my statement.
  In a few minutes, the Senate will have an opportunity to begin 
restoring accountability and checks and balances to what is our 
Government, the Government that belongs to all Americans. We should 
pass the Preserving U.S. Attorneys Independence Act. We have to close a 
loophole that has been exploited by the Department of Justice and the 
White House--a loophole that led to the mass firings of U.S. attorneys.
  When we roll back this excessive authority given the Attorney General 
by the PATRIOT Act reauthorization, we can restore--or at least take a 
step toward restoring--the independence of our Federal law enforcement 
system. We will be acting to reverse one more incident of overstepping 
by an earlier ``rubberstamp'' Congress, which was all too often willing 
to dance to the tune of a power-hungry White House.
  The Attorney General--and I will agree with the Attorney General on 
this--he is right that mistakes were made. Mistakes were made, all 
right. It was a mistake to conduct the mass firings to send the message 
to our U.S. attorneys that they had better act like ``loyal Bushies''--
their words, the Administration's words--rather than act as objective 
law enforcement officers. Mistakes were made, absolutely.
  It was a mistake to malign the reputations of these officials by 
contending that the firings were prompted by their badly performing 
their law enforcement responsibilities.
  It was a mistake to mislead the Senate Judiciary Committee in 
hearings and Senators during phone calls and in meetings about the 
firings.
  It was a mistake to give the Attorney General the unlimited authority 
to fill these critical posts with his selections or the selections of 
the White

[[Page S3299]]

House without the advice and consent of the U.S. Senate.
  But most of all, it was a mistake to inject crassly partisan 
objectives into the selection, evaluation, firing, and replacement of 
the top Federal law enforcement officers in our country.
  I still have no sense that the administration or the Attorney General 
understand the seriousness of this matter. The apparent effort to 
corrupt the Federal law enforcement function for partisan political 
purposes has cast a cloud over all U.S. attorneys. Now every U.S. 
attorney is under a cloud. People are asking about those who were 
retained as ``loyal Bushies.'' People are wondering what prosecutorial 
judgments were affected. These mass firings have served to undermine 
the confidence of the American people in the Department of Justice and 
the local U.S. attorneys.
  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 a whistleblower. 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 to get to the bottom of this situation. We need 
the facts, not more spin, not another concocted cover story.
  The U.S. 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. The Department of Justice 
should serve the American people by making sure the law is enforced 
without fear or favor. It should not be a political arm of the White 
House.
  The Attorney General is not the President's lawyer. The President has 
a lawyer. The Attorney General is the Attorney General for the people 
of the United States of America--all of us--Republicans, Democrats and 
Independents.
  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. That measure struck the time limit on the ability of 
the Attorney General to name a so-called interim U.S. attorney. And 
that is what this bill, the Preserving United States Attorney 
Independence Act of 2007, is intended to restore. It is vital that 
those holding these critical positions be free from any 
inappropriate influence.

  We are finding out more and more abuses by this administration. We 
learned for the first time earlier this month in testimony by a 
Congressional Research Service attorney before the House Judiciary 
Committee about another loophole this administration has tried to 
create and exploit. In 2003, the Department's Office of Legal Counsel 
issued a secret legal opinion to try to create an end run around the 
Senate's role. This administration is the first I am aware that is 
employing the Vacancies Act in addition to the interim U.S. attorney 
appointment authority sequentially. The horror that Senator Kyl speaks 
about is one that this administration created and has apparently been 
employing. That is not what Congress intended.
  With the passage of S. 214 today we should put an end to that 
untoward practice, too. As one of the authors of S. 214 and chairman of 
the Judiciary Committee, I say it is not our intent to allow such an 
abuse by having the Vacancies Act provisions and those of S. 214 used 
in sequence. We do not intend for the Attorney General to use such a 
misguided approach and seek to install a choice for 330 days without 
the advice and consent of the Senate. Nor do we intend for the Attorney 
General to make Senator Kyl's other suggestion a reality by seeking to 
use the 120-day appointment authority more than once. It is not 
designed or intended to be used repeatedly for the same vacancy. These 
double dipping approaches run afoul of congressional intent, the law 
and our bill. Our bill should put a stop to that, too. Instead, the 
President should fulfill his responsibilities, work with home State 
Senators and nominate qualified people to serve as U.S. attorneys so 
that they can be considered by the Senate and confirmed. If he does not 
the district court will be restored the stopgap authority they 
previously had.
  I was pleased that Senator Feinstein worked so hard with Senator 
Specter to craft the consensus measure we consider today to reinstate 
vital limits on the Attorney General's authority and bring back 
incentives for the administration to fill vacancies with Senate-
confirmed nominees. We reported out this measure with bipartisan 
support 13-6 after debating and voting down several amendments, 
including amendments similar to those offered today by Senators Kyl and 
Sessions. We should again vote down these amendments and pass the 
bipartisan bill without delay.
  Senator Sessions' amendment would attach certain conditions to a 
district court's authority to appoint an interim U.S. attorney after 
120 days, but none to the Attorney General's interim appointment 
authority. Our bill is meant to roll back a change in law that allowed 
an abuse of power by the administration and the Department of Justice. 
There is no record of problems with the appointment of interim 
appointments by the district court. In fact, for almost a hundred years 
until the law was changed in 1986 during the Reagan administration, 
district courts were the sole means of appointing interim U.S. 
attorneys. There are many criteria that we want U.S. attorneys to 
possess--chief among them the ability to enforce the laws independently 
without fear or favor. But both the prerogatives of the administration 
in putting in place the people it wants and the home State Senators in 
ensuring fairness and independence in their States are protected when 
the President nominates and the Senate considers and confirms U.S. 
attorneys.
  Senator Kyl's amendment provides unjustified limitations on the 
Senate's role in confirming U.S. attorneys that could short-circuit the 
Senate's ability to undertake a thorough consideration of a nominee's 
qualifications and wholly disregards the role of the home State 
Senators.
  It is true that this President has been slow in nominating U.S. 
attorneys. There are currently 22 vacancies and only three nominees. 
Building incentives for this President to fulfill his responsibilities 
and work with home State Senators would be a good thing. That is not 
what Senator Kyl's amendment does. Instead, in the guise of setting a 
time limit on the Senate, what it actually does is override the 
traditional deference paid to home State Senators and the Judiciary 
Committee itself. In fact, no time limit is needed to require the 
committee or the Senate to act on qualified nominees.
  During this President's term, U.S. attorneys have been confirmed 
quickly, taking an average of 68 days from nomination to confirmation. 
Only three people nominated to be U.S. attorneys have not been 
confirmed and two of those withdrawn by the President. In fact, when I 
first chaired the Judiciary Committee during President Bush's first 
term, we confirmed 84 of President Bush's U.S. attorney nominations in 
a little more than a year.
  Some critics of the district court's role in filling vacancies beyond 
120 days claim it to be inconsistent with sound separation of powers 
principles. That is contrary to the Constitution, our history, our 
practices, and recent court rulings. In 2000, in United States v. 
Hilario, the First Circuit upheld the constitutionality of the prior 
law on interim appointments, including the district court's role. 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. 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.
  During committee consideration we heard from some who had not read 
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

[[Page S3300]]

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.

  Just last week, the Eastern District of Arkansas joined at least two 
other courts addressing the interim appointment of U.S. attorneys, the 
First Circuit in Hilario, and the Ninth Circuit in United States v. 
Gantt, in concluding that U.S attorneys are ``inferior officers.'' 
Thus, the Constitution contemplates exactly what our statutes and 
practices had previously provided and what our bill will restore. 
Congress is well within its authority when it vests in the courts a 
share of the appointment power for those who appear before them.

  One of the finest Attorneys General of the United States ever to 
serve was Robert H. Jackson. He also served as one of our most admired 
Justices on the U.S. Supreme Court. He was a principal prosecutor at 
the International Military Tribunal for German war criminals in 
Nuremberg after World War II.
  The day after I was born, on April 1, 1940, as a new Attorney 
General, he spoke to the U.S. attorneys from across the country. They 
were assembled in the Great Hall at the Department of Justice in 
Washington. He told them about the responsibilities of being a Federal 
prosecutor. I think it is appropriate today to recall his guidance. His 
words serve to show the Senate and the American people how wrong this 
Administration's practices are and how far off the mark.
  This is what then-Attorney General Jackson said and they are words 
that serve today. He said:

       The prosecutor has more control over life, liberty, and 
     reputation than any other person in America. His discretion 
     is tremendous. While the prosecutor at his best is one of the 
     most beneficent forces in our society, when he acts from 
     malice or other base motives, he is one of the worst.
       Because of this immense power to strike at citizens, not 
     with mere individual strength, but with all of the force of 
     government itself, the post of Federal District Attorney from 
     the very beginning has been safeguarded by presidential 
     appointment, requiring confirmation of the Senate of the 
     United States.
       Your responsibility in your several districts for law 
     enforcement and for its methods cannot be wholly surrendered 
     to Washington.

  Robert H. Jackson continued:

       If the prosecutor is obliged to choose his cases, it 
     follows that he can choose his defendants. Therein is the 
     most dangerous power of the prosecutor: That he will pick 
     people that he thinks he should get, rather than pick cases 
     that need to be prosecuted.
       It is in this realm in which the prosecutor picks some 
     person whom he dislikes or desires to embarrass, or selects 
     some group of unpopular persons and then looks for an 
     offense, that the greatest danger of abuse of prosecuting 
     power lies. It is here that law enforcement becomes personal, 
     and the real crime becomes that of being unpopular with the 
     predominant or governing group, being attached to the wrong 
     political views, or being personally obnoxious to or in the 
     way of the prosecutor himself.
       In times of fear or hysteria political, racial, religious, 
     social, and economic groups, often for the best of motives, 
     cry for the scalps of individuals or groups because they do 
     not like their views. Those who are in office or apt to 
     regard as ``subversive'' the activities of any of those who 
     would bring about a change of administration.

  Mr. President, I ask unanimous consent that a copy of Attorney 
General Jackson's full statement be printed in the Record at the 
conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. LEAHY. Mr. President, I have said many times on this floor that 
one of the greatest opportunities I have ever had in my public life was 
to serve for 8 years as a prosecutor. Prosecutors have to be 
independent. Prosecutors have to prosecute without fear of favor. 
Prosecutors can never not prosecute someone because they are a 
Republican or Democrat; they have to do it because they have to uphold 
the law.
  Let us restore the situation where our Federal prosecutors, whether 
we have a Democratic President or a Republican President, serve the law 
and not a political purpose. That is what prosecutors have to do. Many 
of us in this Chamber have served as prosecutors and know that is what 
we meant when we took our oath of office. Let's not have a system that 
at the outset subverts that oath of office.
  I wish to commend Senator Feinstein for leading this effort and 
Senator Specter, the ranking Republican on our committee, for joining 
her. We have all cosponsored the substitute to restore the statutory 
checks that existed. I commend the many Senators who contributed to 
this debate, including the majority leader, Senator Kennedy, Senator 
Durbin, both Senators from Arkansas, Senator Whitehouse, Senator 
McCaskill, Senator Schumer, Senator Murray, Senator Cardin, and Senator 
Klobuchar.
  Many speak from their own experiences as former prosecutors.
  Let's pass this bill without amendments. We have a piece of 
legislation to protect the integrity of prosecutors and law 
enforcement. Let's pass it without amendment, pass it as it is, and 
strike a blow for the integrity of our Federal prosecutors and strike a 
blow for law enforcement. Because if you politicize a prosecutor, you 
politicize everybody in the whole chain of law enforcement. We should 
never do that. Let's pass this bill and restore integrity to Federal 
law enforcement.
  Mr. President, I yield the floor.

                               Exhibit 1

                         The Federal Prosecutor

(By Robert H. Jackson, Attorney General of the United States, April 1, 
                                 1940)

       It would probably be within the range of that exaggeration 
     permitted in Washington to say that assembled in this room is 
     one of the most powerful peace-time forces known to our 
     country. The prosecutor has more control over life, liberty, 
     and reputation than any other person in America. His 
     discretion is tremendous. He can have citizens investigated 
     and, if he is that kind of person, he can have this done to 
     the tune of public statements and veiled or unveiled 
     intimations. Or the prosecutor may choose a more subtle 
     course and simply have a citizen's friends interviewed. The 
     prosecutor can order arrests, present cases to the grand jury 
     in secret session, and on the basis of his one-sided 
     presentation of the facts, can cause the citizen to be 
     indicted and held for trial. He may dismiss the case before 
     trial, in which case the defense never has a chance to be 
     heard. Or he may go on with a public trial. If he obtains a 
     conviction, the prosecutor can still make recommendations as 
     to sentence, as to whether the prisoner should get probation 
     or a suspended sentence, and after he is put away, as to 
     whether he is a fit subject for parole. While the prosecutor 
     at his best is one of the most beneficent forces in our 
     society, when he acts from malice or other base motives, he 
     is one of the worst.
       These powers have been granted to our law enforcement 
     agencies because it seems necessary that such a power to 
     prosecute be lodged somewhere. This authority has been 
     granted by people who really wanted the right thing done--
     wanted crime eliminated--but also wanted the best in our 
     American traditions preserved.
       Because of this immense power to strike at citizens, not 
     with mere individual strength, but with all the force of 
     government itself, the post of Federal District Attorney from 
     the very beginning has been safeguarded by presidential 
     appointment, requiring confirmation of the Senate of the 
     United States. You are thus required to win an expression of 
     confidence in your character by both the legislative and the 
     executive branches of the government before assuming the 
     responsibilities of a federal prosecutor.
       Your responsibility in your several districts for law 
     enforcement and for its methods cannot be wholly surrendered 
     to Washington, and ought not to be assumed by a centralized 
     Department of Justice. It is an unusual and rare instance 
     in which the local District Attorney should be superseded 
     in the handling of litigation, except where he requests 
     help of Washington. It is also clear that with his 
     knowledge of local sentiment and opinion, his contact with 
     and intimate knowledge of the views of the court, and his 
     acquaintance with the feelings of the group from which 
     jurors are drawn, it is an unusual case in which his 
     judgment should be overruled.
       Experience, however, has demonstrated that some measure of 
     centralized control is necessary. In the absence of it 
     different district attorneys were striving for different 
     interpretations or applications of an Act, or were pursuing 
     different conceptions of policy. Also, to put it mildly, 
     there were differences in the degree of diligence and zeal in 
     different districts. To promote uniformity of policy and 
     action, to establish some standards of performance, and to 
     make available specialized help, some degree of centralized 
     administration was found necessary.
       Our problem, of course, is to balance these opposing 
     considerations. I desire to avoid any lessening of the 
     prestige and influence of the district attorneys in their 
     districts. At the same time we must proceed in all districts 
     with that uniformity of policy which is necessary to the 
     prestige of federal law.

[[Page S3301]]

       Nothing better can come out of this meeting of law 
     enforcement officers than a rededication to the spirit of 
     fair play and decency that should animate the federal 
     prosecutor. Your positions are of such independence and 
     importance that while you are being diligent, strict, and 
     vigorous in law enforcement you can also afford to be just. 
     Although the government technically loses its case, it has 
     really won if justice has been done. The lawyer in public 
     office is justified in seeking to leave behind him a good 
     record. But he must remember that his most alert and severe, 
     but just, judges will be the members of his own profession, 
     and that lawyers rest their good opinion of each other not 
     merely on results accomplished but on the quality of the 
     performance. Reputation has been called ``the shadow cast by 
     one's daily life.'' Any prosecutor who risks his day-to-day 
     professional name for fair dealing to build up statistics of 
     success has a perverted sense of practical values, as well as 
     defects of character. Whether one seeks promotion to a 
     judgeship, as many prosecutors rightly do, or whether he 
     returns to private practice, he can have no better asset than 
     to have his profession recognize that his attitude toward 
     those who feel his power has been dispassionate, reasonable 
     and just.
       The federal prosecutor has now been prohibited from 
     engaging in political activities. I am convinced that a good-
     faith acceptance of the spirit and letter of that doctrine 
     will relieve many district attorneys from the embarrassment 
     of what have heretofore been regarded as legitimate 
     expectations of political service. There can also be no doubt 
     that to be closely identified with the intrigue, the money 
     raising, and the machinery of a particular party or faction 
     may present a prosecuting officer with embarrassing 
     alignments and associations. I think the Hatch Act should be 
     utilized by federal prosecutors as a protection against 
     demands on their time and their prestige to participate in 
     the operation of the machinery of practical politics.
       There is a most important reason why the prosecutor should 
     have, as nearly as possible, a detached and impartial view of 
     all groups in his community. Law enforcement is not 
     automatic. It isn't blind. One of the greatest difficulties 
     of the position of prosecutor is that he must pick his cases, 
     because no prosecutor can even investigate all of the cases 
     in which he receives complaints. If the Department of Justice 
     were to make even a pretense of reaching every probable 
     violation of federal law, ten times its present staff would 
     be inadequate. We know that no local police force can 
     strictly enforce the traffic laws, or it would arrest half 
     the driving population on any given morning. What every 
     prosecutor is practically required to do it to select the 
     cases for prosecution and to select those in which the 
     offense is the most flagrant, the public harm the greatest, 
     and the proof the most certain.
       If the prosecutor is obliged to choose his cases, it 
     follows that he can choose his defendants. Therein is the 
     most dangerous power of the prosecutor: that he will pick 
     people that he thinks he should get, rather than pick cases 
     that need to be prosecuted. With the law books filled with a 
     great assortment of crimes, a prosecutor stands a fair chance 
     of finding at least a technical violation of some act on the 
     part of almost anyone. In such a case, it is not a question 
     of discovering the commission of a crime and then looking for 
     the man who has committed it, it is a question of picking the 
     man and then searching the law books, or putting 
     investigators to work, to pin some offense on him. It is in 
     this realm--in which the prosecutor picks some person whom he 
     dislikes or desires to embarrass, or selects some group of 
     unpopular persons and then looks for an offense, that the 
     greatest danger of abuse of prosecuting power lies. It is 
     here that law enforcement becomes personal, and the real 
     crime becomes that of being unpopular with the predominant or 
     governing group, being attached to the wrong political views, 
     or being personally obnoxious to or in the way of the 
     prosecutor himself.
       In times of fear or hysteria political, racial, religious, 
     social, and economic groups, often from the best of motives, 
     cry for the scalps of individuals or groups because they do 
     not like their views. Particularly do we need to be 
     dispassionate and courageous in those cases which deal with 
     so-called ``subversive activities.'' They are dangerous to 
     civil liberty because the prosecutor has no definite 
     standards to determine what constitutes a ``subversive 
     activity,'' such as we have for murder or larceny. Activities 
     which seem benevolent and helpful to wage earners, persons on 
     relief, or those who are disadvantaged in the struggle for 
     existence may be regarded as ``subversive'' by those whose 
     property interests might be burdened or affected thereby. 
     Those who are in office are apt to regard as ``subversive'' 
     the activities of any of those who would bring about a change 
     of administration. Some of our soundest constitutional 
     doctrines were once punished as subversive. We must not 
     forget that it was not so long ago that both the term 
     ``Republican'' and the term ``Democrat'' were epithets with 
     sinister meaning to denote persons of radical tendencies that 
     were ``subversive'' of the order of things then dominant.
       In the enforcement of laws which protect our national 
     integrity and existence, we should prosecute any and every 
     act of violation, but only overt acts, not the expression of 
     opinion, or activities such as the holding of meetings, 
     petitioning of Congress, or dissemination of news or 
     opinions. Only by extreme care can we protect the spirit as 
     well as the letter of our civil liberties, and to do so is a 
     responsibility of the federal prosecutor.
       Another delicate task is to distinguish between the federal 
     and the local in law enforcement activities. We must bear in 
     mind that we are concerned only with the prosecution of acts 
     which the Congress has made federal offenses. Those acts we 
     should prosecute regardless of local sentiment, regardless of 
     whether it exposes lax local enforcement, regardless of 
     whether it makes or breaks local politicians.
       But outside of federal law each locality has the right 
     under our system of government to fix its own standards of 
     law enforcement and of morals. And the moral climate of the 
     United States is as varied as its physical climate. For 
     example, some states legalize and permit gambling, some 
     states prohibit it legislatively and protect it 
     administratively, and some try to prohibit it entirely.
       The same variation of attitudes towards other law-
     enforcement problems exists. The federal government could not 
     enforce one kind of law in one place and another kind 
     elsewhere. It could hardly adopt strict standards for loose 
     states or loose standards for strict states without doing 
     violence to local sentiment. In spite of the temptation to 
     divert our power to local conditions where they have become 
     offensive to our sense of decency, the only long-term policy 
     that will save federal justice from being discredited by 
     entanglements with local politics is that it confine itself 
     to strict and impartial enforcement of federal law, letting 
     the chips fall in the community where they may. Just as there 
     should be no permitting of local considerations to stop 
     federal enforcement, so there should be no striving to 
     enlarge our power over local affairs and no use of federal 
     prosecutions to exert an indirect influence that would be 
     unlawful if exerted directly.
       The qualities of a good prosecutor are as elusive and as 
     impossible to define as those which mark a gentleman. And 
     those who need to be told would not understand it anyway. A 
     sensitiveness to fair play and sportsmanship is perhaps the 
     best protection against the abuse of power, and the citizen's 
     safety lies in the prosecutor who tempers zeal with human 
     kindness, who seeks truth and not victims, who serves the law 
     and not factional purposes, and who approaches his task with 
     humility.

  Mr. LEAHY. I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDENT pro tempore. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, I ask unanimous consent that between the 
votes there be 2 minutes equally divided in the usual fashion.
  The PRESIDENT pro tempore. Without objection, it is so ordered.
  The Senator from Arizona is recognized.
  Mr. KYL. Mr. President, the first vote will be on the amendment which 
I have offered which solves the problem that has been described here, 
unlike the underlying bill which does not solve the problem.
  The problem is that the U.S. Attorney General can appoint interim 
attorneys and the Senate doesn't have a chance to confirm them. My 
amendment repeals that section of the law; the underlying bill does 
not. So it is still possible in the future, under the underlying bill, 
for the Attorney General to appoint interim U.S. attorneys without 
Senate confirmation. If he doesn't do that, then a Federal district 
judge makes the appointment, again without the Senate having the 
ability to act on the nomination. Again, my amendment solves that 
problem by requiring the President to nominate a candidate for U.S. 
attorney and requiring the Senate to act on that nomination. Should the 
President not fulfill his responsibility, the requirements for the 
Senate to act are vitiated. So there is a powerful incentive for the 
President to nominate.

  The underlying bill reinstates the old law. The Senator from 
California has said the old system, which is the basis for her 
legislation, has worked well for 20 years. It hasn't worked well. The 
Senate has no ability to act on a nominee when there is no nominee. 
Under the existing law, the district court judge appoints the U.S. 
attorney. We have no ability to say yes or no to that individual. So I 
would argue that, from the Senate's prerogative and point of view, it 
has not worked well.
  Secondly, yesterday, I noted two situations, one in the district for 
West Virginia in 1987, where the system of having a Federal judge 
appoint the

[[Page S3302]]

U.S. attorney did not work well at all. It is a case that perhaps the 
Presiding Officer is aware of. Eventually, the Justice Department had 
to remove the investigative files from the U.S. Attorney's Office and 
had to direct the nominee to recuse herself from some criminal matters 
until a background check could be effectuated. The situation was not 
resolved until another U.S. attorney was approved by the Senate.
  We had the odd situation 2 years ago in South Dakota where we ended 
up having two U.S. attorneys serving at the same time because of the 
appointment by a district judge. The point is, the old system did not 
work well. In any event, the Senate has no say in the matter when a 
district judge appoints the U.S. attorney.
  Conclusion: We have all recognized a problem exists. The problem is a 
U.S. attorney can be appointed without the Senate ever having a say in 
it, either by the Attorney General, as an interim, or by a district 
judge. The underlying bill permits both of those practices to continue. 
My amendment precludes both of those practices. It eliminates the 
Attorney General's ability to appoint an interim U.S. attorney and it 
eliminates the district court's ability to do so. It puts the 
responsibility where it belongs, on the shoulders of the President and 
the Senate.
  The PRESIDENT pro tempore. The Senator's time has expired.
  Mr. KYL. Mr. President, I ask for the yeas and nays.
  The PRESIDENT pro tempore. Is there a sufficient second?
  There is a sufficient second. The question is on agreeing to the 
amendment.
  The clerk will call the roll.
  The assistant journal clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Delaware (Mr. Biden) and 
the Senator from South Dakota (Mr. Johnson) are necessarily absent.
  Mr. LOTT. The following Senators are necessarily absent: the Senator 
from Oklahoma (Mr. Coburn) and the Senator from Arizona (Mr. McCain).
  The PRESIDENT pro tempore. Are there any other Senators in the 
Chamber desiring to vote?
  The result was announced--yeas 40, nays 56, as follows:

                      [Rollcall Vote No. 79 Leg.]

                                YEAS--40

     Allard
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Chambliss
     Cornyn
     Craig
     Crapo
     DeMint
     Dole
     Domenici
     Ensign
     Enzi
     Graham
     Grassley
     Gregg
     Hagel
     Hutchison
     Inhofe
     Isakson
     Kyl
     Lott
     Lugar
     Martinez
     McConnell
     Murkowski
     Nelson (NE)
     Roberts
     Sessions
     Shelby
     Smith
     Specter
     Stevens
     Thomas
     Thune
     Vitter
     Voinovich
     Warner

                                NAYS--56

     Akaka
     Alexander
     Baucus
     Bayh
     Bingaman
     Boxer
     Brown
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Clinton
     Cochran
     Coleman
     Collins
     Conrad
     Corker
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Harkin
     Hatch
     Inouye
     Kennedy
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     McCaskill
     Menendez
     Mikulski
     Murray
     Nelson (FL)
     Obama
     Pryor
     Reed
     Reid
     Rockefeller
     Salazar
     Sanders
     Schumer
     Snowe
     Stabenow
     Sununu
     Tester
     Webb
     Whitehouse
     Wyden

                             NOT VOTING--4

     Biden
     Coburn
     Johnson
     McCain
  The amendment (No. 459) was rejected.
  Mr. LEAHY. Mr. President, I move to reconsider the vote.
  Mr. DURBIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDENT pro tempore. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the next two 
votes be 10 minutes in duration.
  The PRESIDENT pro tempore. Is there objection? Hearing no objection, 
it is so ordered.


                           Amendment No. 460

  Under the previous order, there will now be 2 minutes of debate, 
equally divided, on the amendment offered by the Senator from Alabama, 
Mr. Sessions.
  Mr. SESSIONS. Mr. President, am I recognized under the agreement for 
1 minute?
  The PRESIDENT pro tempore. The Senator is recognized.
  Mr. SESSIONS. Mr. President, this is a friendly amendment to the 
Feinstein amendment. It would simply eliminate the difficulty that has 
occurred over the years when Federal judges, given the power of 
appointment, have appointed individuals who do not have security 
clearances and aren't able to function in the office, aren't able to 
participate in sensitive cases.
  I would note that in recent years, U.S. attorneys have been given 
substantial responsibility against terrorism.
  In every U.S. Attorney's Office today, there are the most highly 
secure telephones. They are wired into the most serious terrorism 
situations that might occur, and they become a coordinating officer in 
many instances. This would eliminate the danger of a judge appointing 
someone not qualified to participate as an effective member of that 
team because they lack the security clearance. It would require 
appointing someone with law enforcement experience and security 
clearance. This is a technical amendment. I ask my colleagues to 
support it.
  The PRESIDENT pro tempore. There will be order in the Senate.
  The Senator may proceed.
  Mr. SESSIONS. This is a technical but important amendment that 
guarantees that any appointee to the office of U.S. attorney, a 
critical component in our law enforcement and terrorism matters, will 
have the required security clearance.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Casey). The Senator from Vermont.
  Mr. LEAHY. Mr. President, we are trying to put the law back to the 
way it was before this little amendment was slipped into the PATRIOT 
Act. We should oppose the amendment of the Senator from Alabama. It 
would not put it back the way it was. Actually, under this amendment, 
the Senator from Alabama could not have been appointed U.S. attorney, 
and former Attorney General Thornburg and former Deputy Attorney 
General Larry Thompson could not have been.
  The President should move quickly to appoint the U.S. attorney if 
there is a vacancy, but in the meantime, the judges are in the best 
position to appoint somebody. I hope a district court never has to make 
an appointment. But let's assume you have a case where there is 
widespread corruption. The judge has to be able to put in someone 
independent. It worked well for 100 years. It was changed by something 
slipped into the PATRIOT Act. Let's go back to the way we were, Mr. 
President.
  I oppose this amendment and ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is on agreeing to the amendment. The clerk will call the 
roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Delaware (Mr. Biden) and 
the Senator from South Dakota (Mr. Johnson) are necessarily absent.
  Mr. LOTT. The following Senator is necessarily absent: the Senator 
from Arizona (Mr. McCain).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 47, nays 50, as follows:

                      [Rollcall Vote No. 80 Leg.]

                                YEAS--47

     Alexander
     Allard
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Corker
     Cornyn
     Craig
     Crapo
     DeMint
     Dole
     Domenici
     Ensign
     Enzi
     Graham
     Grassley
     Gregg
     Hatch
     Hutchison
     Inhofe
     Isakson
     Kyl
     Lott
     Lugar
     Martinez
     McCaskill
     McConnell
     Murkowski
     Roberts
     Sessions
     Shelby
     Snowe
     Specter
     Stevens
     Sununu
     Thomas
     Thune
     Vitter
     Voinovich
     Warner

                                NAYS--50

     Akaka
     Baucus
     Bayh
     Bingaman
     Boxer
     Brown
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Clinton
     Conrad
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Hagel
     Harkin
     Inouye
     Kennedy
     Kerry
     Klobuchar

[[Page S3303]]


     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Menendez
     Mikulski
     Murray
     Nelson (FL)
     Nelson (NE)
     Obama
     Pryor
     Reed
     Reid
     Rockefeller
     Salazar
     Sanders
     Schumer
     Smith
     Stabenow
     Tester
     Webb
     Whitehouse
     Wyden

                             NOT VOTING--3

     Biden
     Johnson
     McCain
  The amendment (No. 460) was rejected.
  Mr. LEAHY. I move to reconsider the vote.
  Mrs. FEINSTEIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. HARKIN. Mr. President, I have come to the floor today to speak in 
support of S. 214, Senator Feinstein's legislation to restore the 
independence of our U.S. attorneys. Like many in this body, I have 
watched in dismay as more and more details of this administration's 
efforts to fire Federal prosecutors and replace them with loyal 
partisans have become public. There has been a great deal of discussion 
of these facts on the floor of this Senate--the fact that those U.S. 
attorneys who were fired were criticized in one e-mail for not being 
``loyal Bushies,'' and the fact that many of these U.S. attorneys had 
received glowing personnel reviews in the time leading up to their 
firings.
  But one of the facts that I think we are losing sight of in this 
debate is the critical role that U.S. attorneys play in this country. 
These are incredibly important jobs, and the people that hold them are 
responsible for overseeing the most complex and serious prosecutions of 
the most treacherous crimes. U.S. attorneys around the country are 
responsible for overseeing major conspiracy cases including organized 
crime, large-scale drug trafficking by organized gangs, terrorism, and 
political corruption.
  While these are political appointments, in the past, mere political 
loyalty was not generally sufficient to get you the job. In the past, 
under both Republican and Democratic administrations, you also needed 
to have the support of the legal community in the district and to have 
demonstrated solid legal skills. Ensuring that people who were known in 
the community and had the necessary judgment, skills, and independence 
to fulfill the demands of these positions is the reason that home State 
Senators are consulted.
  It is because the importance of these positions has long been 
recognized on a bipartisan basis that it is simply astonishing that 
this administration gave real consideration to summarily dismissing all 
94 U.S. attorneys. Even more appalling is that the Attorney General, 
the man who earlier this year told the Judiciary Committee that he 
would ``never ever make a change in the United States attorney position 
for political reasons,'' was involved in those discussions.
  As difficult as it is to believe that the administration seriously 
considered wholesale replacement of the U.S. attorneys, it is even more 
troubling that they proceeded to summarily dismiss eight prosecutors 
for very murky reasons and then tried to justify their actions as 
performance based. Given that each of the prosecutors underwent a 
detailed favorable review, it has become very clear that this is simply 
not true.
  More troubling still is that at least three of the fired prosecutors 
were involved in political corruption probes that were not proceeding 
in a way that the administration viewed as politically favorable, and 
in at least two of these cases lawmakers and their staff personally 
intervened with the prosecutors.
  As if a large-scale effort to fire lead Federal prosecutors for 
political reasons wasn't sufficient, the Department of Justice clearly 
intended to replace sitting prosecutors with highly political White 
House and other administration staffers on an ``interim'' basis without 
sending them to the Senate for confirmation. That is what this bill 
before us today addresses. It revokes the ability of the Attorney 
General to appoint an interim U.S. attorney for an indefinite period of 
time and thus avoid the Senate confirmation process. This is just one 
of the problematic provisions slipped into the PATRIOT Act and I 
commend Senator Feinstein for her efforts to bring this issue to light 
and to restore the balance to the process of appointing U.S. attorneys.
  While the Deputy Attorney General has insisted that it wasn't the 
intent of the Department of Justice to avoid Senate confirmation, this 
has been flatly contradicted by the documents. In discussing the 
appointment of Karl Rove's Deputy Tim Griffin as the ``interim'' U.S. 
attorney in Arkansas, the former Chief of Staff to Attorney General 
Gonzales, Kyle Sampson, wrote in December 2006: ``I think we should gum 
this to death . . . Ask the senators to give Tim a chance, meet with 
him, give him some time in office to see how he performs, etc. If they 
ultimately say `no never' (and the longer we can forestall that the 
better), then we can tell them we'll look for other candidates, ask 
them for recommendations, interview their candidates, and otherwise run 
out the clock. All this should be done in `good faith' of course.''
  The decision to fire the U.S. attorneys was finalized after the 
elections and the knowledge that Democrats would be taking control of 
the Senate. But even so, it raises the question of why the White House 
would feel it necessary to avoid Senate confirmation. After all, many 
of the current U.S. attorneys were confirmed smoothly under Democratic 
control in 2001 and 2002. Again, Kyle Sampson has the answer for us. In 
an early email, he laid out the benefits of avoiding the Senate 
stating: ``we can give far less deference to home-state senators and 
thereby get (1) our preferred person appointed and (2) do it far faster 
and more efficiently, at less political cost to the White House.''
  This bill before us today restores the status quo prior to the 
renewal of the PATRIOT Act last fall by repealing the ability of the 
Administration to appoint ``interim'' U.S. attorneys for indefinite 
periods of time. I am glad the administration has dropped its 
opposition to this bill, and I look forward to seeing the President 
sign this bill in to law. But this exercise has been an eye-opener for 
those of us in the Senate, and I hope for the American people, about 
the contempt this administration has for the Congress and the 
willingness of the administration to politicize any and every office. 
It has also, once again, underscored the value of oversight into our 
system of government. For the past 6 years, this administration has 
operated without any independent check on its power. But those days are 
over. By passing this legislation and beginning the necessary work to 
restore the integrity of our Nation's U.S. attorneys, we can begin to 
restore Americans faith in our system of justice.
  Mrs. BOXER. Mr. President, I wish to express my support for S. 214, 
which would serve to protect the independence of our U.S. attorneys.
  The administration's attack on sitting U.S. attorneys is an 
unprecedented abuse of power. The White House and the Attorney General 
injected politics into the process and chose to fire eight U.S. 
attorneys, including our U.S. attorney in San Diego, Carol Lam. These 
attorneys were not fired because of poor job performance, as the 
Attorney General initially claimed, but because in one way or another 
they did not carry out the political agenda of the White House.
  Despite the administration's efforts to downplay and spin these 
events to Congress, we now know that this plan was orchestrated at the 
highest levels of the White House. For example, Karl Rove misled the 
public when he asserted that the Justice Department's action was 
comparable to President Clinton's actions. This is untrue. No 
administration has ever lashed out and fired a group of their own U.S. 
attorneys in the middle of a term.
  There is an immediate need for legislation to ensure that the 
administration can no longer appoint new U.S. attorneys without Senate 
confirmation. I thank my colleague, Senator Feinstein, for her superb 
leadership on this issue.
  Mr. LEVIN. Mr. President, time and time again we have seen this 
administration's inability to divorce politics from policy in areas 
that politics should have no place. The recent firing of eight U.S. 
attorneys lends yet another example to that failure. It is clear that 
some of these firings were politically motivated. I support S. 214 and 
have cosponsored this legislation because it will restore the 120-day 
limit for interim appointments made by the

[[Page S3304]]

Attorney General and restore the district court's role in making any 
subsequent interim appointments to deter the kind of Department of 
Justice actions we have seen recently.
  Until 1986, interim U.S. attorneys were appointed by their respective 
district courts and were allowed to serve until the vacancy was filled 
by a U.S. attorney nominated by the President and confirmed by the 
Senate. In 1986, the law was changed to allow the Attorney General to 
make an interim appointment for 120 days, provided the appointee was 
not a person for whom the Senate had refused to give advice and 
consent. If a successor was not named at the end of the 120-day period, 
then the district court would appoint a U.S. attorney to serve until 
the vacancy was filled. This process remained unchanged for 20 years, 
until last year.
  During the PATRIOT Act Reauthorization last year, the process was 
altered to eliminate appointments by the district court and to allow 
the Attorney General to appoint an interim U.S. attorney indefinitely, 
or until the vacancy is filled by a U.S. attorney nominated by the 
President and confirmed by the Senate.
  The legislation before us today is simple: it would repeal those 
changes, which were made without debate, and would require an interim 
appointment made by the Attorney General to expire after 120 days or 
when a successor is nominated by the President and confirmed by the 
Senate, whichever comes first. If at the end of the 120-day period no 
successor has been confirmed, the relevant district court would be 
authorized to appoint an interim U.S. attorney to serve until the 
vacancy is filled. The legislation would also terminate existing 
interim appointments 120 days from enactment or upon confirmation of a 
successor, whichever comes first.
  We all know that U.S. attorneys serve at the pleasure of the 
President. However, U.S. attorneys are supposed to be loyal to the 
Constitution, not the President and Attorney General. When they are 
sworn in, U.S. attorneys swear to ``support and defend the Constitution 
of the United States against all enemies, foreign and domestic.'' There 
is no requirement that U.S. attorneys ``exhibit loyalty to the 
President and Attorney General,'' as was said to be a goal in an e-mail 
from Kyle Sampson, former chief of staff to Attorney General Gonzales, 
recommending the retention of those attorneys.
  One of the U.S. attorneys who was asked to resign was Margaret 
Chiara, U.S. attorney for the Western District of Michigan. In an e-
mail dated March 2, 2005, Kyle Sampson wrote to then White House 
Counsel Harriet Miers, designating Ms. Chiara as one of the U.S. 
attorneys who was recommended for removal because she was one of the 
``weak U.S. attorneys who have been ineffectual managers and 
prosecutors, chafed against Administration initiatives, etc.'' That 
assessment ran contrary to the Department of Justice's evaluation of 
Ms. Chiara, which found her to be well regarded, hard working and a 
capable leader who had the respect and confidence of the judiciary, 
agencies, and U.S. Attorney's Office personnel. Further, during Ms. 
Chiara's tenure as the U.S. attorney from the Western District of 
Michigan, she achieved an overall increase of more than 15 percent in 
felony prosecutions and convictions (the Northern Division alone 
experienced an increase of 84 percent in the number of criminal cases 
prosecuted during the 2-year period of 2003-2005). The Department of 
Justice invited Ms. Chiara to serve on several key subcommittees of the 
Attorney General's Advisory Committee. Ms. Chiara developed an attorney 
training and mentoring program for the Western District of Michigan 
that now serves as a national model that was acknowledged as a ``best 
practice'' by the Department of Justice. Ms. Chiara was awarded the 
``Building Bridges Award'' by the Arab-American Anti-Discrimination 
Committee, and ``Lifetime Achievement Recognition'' by the Women's 
Historical Center and Michigan Women's Hall of Fame.
  On December 7, 2006, Mr. Sampson e-mailed William Mercer, then acting 
Associate Attorney General, stating that ``All Senators have been 
notified and are fine/no objections.'' Apparently Republican Senators 
were contacted, but Democrats were not contacted. This Senator was not 
notified. In fact, the ``Plan for Replacing Certain United States 
Attorneys'' drafted by Mr. Sampson, states that, on December 7, ``where 
there is no Republican home-state Senator, the home-state `Bush 
political lead[s]' are contacted.'' Obviously, it was more important to 
contact the ``political lead'' than the home-state Senators of these 
U.S. attorneys, which is further evidence that these firings had 
political motivations.
  I am pleased that we will pass this important legislation today, to 
restore integrity and political confidence to the process of filling 
the vacancies of U.S. attorneys. I am also pleased that the Judiciary 
Committee will continue their investigation into this matter by issuing 
subpoenas, if necessary.
  Mrs. CLINTON. Mr. President, as part of the PATRIOT Act's 
reauthorization in 2006, Congress bestowed upon the Attorney General 
new authority to appoint interim U.S. attorneys indefinitely, without 
any independent oversight. The Department of Justice proceeded to abuse 
this provision to orchestrate a series of firings of U.S. attorneys. An 
ever-growing body of evidence reveals that the firings were little more 
than a political purge. To defend its conduct, the Department of 
Justice gave Congress misleading testimony about these politically 
motivated firings, tarnishing the professional reputations of these 
U.S. attorneys in the process. Sadly, this is only the latest in a long 
series of episodes that call into question the independence and the 
leadership of an Attorney General more concerned with advancing a 
partisan agenda than impartially enforcing the law. It is unacceptable 
that the Attorney General has allowed his loyalty to the President to 
politicize the Department of Justice and corrupt the administration of 
justice. Because his conduct is unbecoming an Attorney General, I have 
called on Attorney General Alberto Gonzales to resign his post.
  For these same reasons I support and am a cosponsor of Senator 
Feinstein's Preserving United States Attorney Independence Act of 2007, 
which would reinstate the process for the appointment of interim U.S. 
attorneys that existed for 20 years prior to 2006. Senator Feinstein's 
legislation would authorize the Attorney General to make an interim 
appointment for 120 days. If a successor is not named and confirmed by 
the Senate at the end of the 120-day period, then the relevant district 
court must appoint a U.S. attorney to serve until the vacancy is 
filled. The legislation's provisions are also retroactive, meaning it 
would also terminate existing interim appointments 120 days from its 
enactment, or upon confirmation of a successor, whichever comes first. 
The legislation is an important measure that will make great strides 
toward restoring the historic independence of the U.S. attorneys.
  But even with the passage of this legislation, there is still a lot 
of explaining to be done by the Attorney General and the Bush 
administration. Numerous questions remain about who called for the U.S. 
attorney firings, what specific reasons were cited to justify the 
firings, and to what extent the White House participated in the 
decision to achieve political ends. The Attorney General and the 
President and their respective staffs need to be forthcoming with 
explanations and documents that answer these and other questions and 
end the current practice of providing misleading, inconsistent, and 
unclear responses.
  Some have attempted to defend the Attorney General's inexcusable 
behavior by positing arguments that divert attention away from what 
really occurred. First, much has been made of the fact that these fired 
U.S. attorneys served at the pleasure of the President and thus were 
subject to dismissal at any time. The administration's desire to have 
U.S. attorneys engage in politically motivated investigations in direct 
violation of their obligation to impartially enforce the law cannot 
serve as proper grounds for dismissal. Terminating these Federal 
prosecutors because they refused to serve as partisan henchmen cannot 
be the source of the President's displeasure.
  Further, the assertion that the Clinton administration engaged in 
similar misdeeds is also baseless. Holdover U.S. attorneys appointed by 
a previous administration are routinely replaced by the new incoming 
President. Even Stuart M. Gerson, Assistant Attorney General in the 
administration of President

[[Page S3305]]

George H.W. Bush, observed, ``It is customary for a President to 
replace U.S. attorneys at the beginning of a term.'' This practice 
allows the new President to appoint new Federal prosecutors who share 
his or her priorities and strategy for fighting crime. You will find 
similar turnover when President Bush replaced President Clinton in 2001 
and when President Reagan replaced President Carter in 1981.
  The firings we are seeing today are nothing like what happened in 
1981, 1993, or 2001. The essential question here is why were these U.S. 
attorneys--President Bush's own appointees--fired in the middle of his 
second term. There is substantial evidence that the Bush administration 
fired them for political reasons: for pursuing corruption charges 
against Republicans too aggressively, for failing to prosecute 
Democrats aggressively enough, or for not pursuing what one U.S. 
attorney described as ``bogus'' election claims against Democrats and 
public interest groups in the months leading up to the 2006 elections. 
This incursion on the independence of U.S. attorneys is unacceptable 
conduct, and the Attorney General and administration must be honest 
with the American people about what happened.
  The Attorney General took an oath to uphold our Constitution and 
respect the rule of law. But time and time again, he has demonstrated 
that his loyalties lie with the President and his political agenda, not 
the American people or the evenhanded and impartial enforcement of our 
laws. In executing the White House's political directives by firing 
U.S. attorneys who would not carry out the administration's partisan 
witch hunts, the Attorney General undermined the objectives of the 
Department of Justice, putting politics ahead of the just enforcement 
of the law. The Department of Justice should not serve as a political 
arm of any party, and U.S. attorneys should not double as political 
operatives. The administration's insistence to the contrary and the 
Attorney General's complicity are a betrayal of the highest order to 
the fundamental mission of the Department of Justice to ensure fair and 
impartial administration of justice for all Americans.
  Attorney General Gonzales acknowledges that ``mistakes'' were made in 
the dismissal of these U.S. attorneys and maintains that responsibility 
for these unjustified firings lies with him. I agree. Because he has 
betrayed his obligations and the trust of the American people, Attorney 
General Gonzales should resign his post as head of the Department of 
Justice.
  Mr. FEINGOLD. Mr. President, last week the Senate Judiciary Committee 
held its second hearing on the unprecedented dismissal of eight U.S. 
attorneys in December. In the past few days, increasingly disturbing 
information has come to light that suggests that Congress was 
intentionally misled with regard to why these U.S. attorneys were fired 
and who was involved in making the decision to fire them. Under the 
leadership of Chairman Leahy and Senator Schumer, the Judiciary 
Committee will continue to investigate these matters in the coming 
weeks.
  But today, we will vote on legislation to repeal a change in the law 
that apparently helped to bring about these unfortunate events. I will 
vote in favor of S. 214 and against both amendments that have been 
offered.
  In many ways, U.S. attorneys are the face of the Federal Government 
and of Federal law in our local jurisdictions. They make crucial 
decisions on how federal law will be enforced. To faithfully execute 
the law, they must be able to exercise that essential prosecutorial 
discretion that distinguishes our criminal justice system from a mere 
draconian rule book that is applied without regard for the 
circumstances of each individual case. Who fills these positions in our 
system is a matter of great consequence. That is why they are subject 
to confirmation by the Senate.
  In Wisconsin, we take the nomination process for our two U.S. 
attorneys, and the participation of the Senate in that process, very 
seriously. In 1979, Senators William Proxmire and Gaylord Nelson 
created the Wisconsin Federal Nominating Commission to advise them on 
judicial and U.S. attorney nominations. The Commission process has been 
used for over a quarter century, by both Republican and Democratic 
senators from our State under both Republican and Democratic 
Presidents.
  The Commission operates whenever a vacancy occurs for a Federal judge 
or U.S. attorney position in Wisconsin. The Commission reviews 
applications and then makes recommendations to the Senators. The two 
Wisconsin Senators, now Senator Kohl and myself, choose from those 
recommended by the Commission in making our recommendations to the 
President. This bipartisan Commission helps ensure that dedicated and 
qualified individuals fill the positions. It gives our citizens 
additional assurance that these important nominations are made based on 
merit, not politics. I believe commissions like this are a particularly 
reliable and transparent form of filling these vacancies.
  That is one reason that I feel so strongly that the change made 
during the PATRIOT Act reauthorization process to the process for 
appointing interim U.S. attorneys was a mistake: It allows the Justice 
Department to sidestep the confirmation process for U.S. attorneys 
altogether. There is simply no good reason why the Attorney General 
needs the power to make indefinite interim appointments. When it 
exercises that power, the administration cuts Congress, and in the case 
of my state, the people of Wisconsin, out of that process.
  As some of the recently released emails from the Attorney General's 
chief of staff reveal, this change in law allowing the Attorney General 
to make indefinite interim appointments was going to be used to 
circumvent congressional involvement and instead install preselected 
``interim'' replacements for the fired U.S. attorneys with no intention 
to seek Senate confirmation. Worse yet, the emails indicate that the 
Department of Justice was actively planning to pretend it was following 
a traditional confirmation process ``in good faith.'' Such blatant 
disregard for Congress's legitimate role in this process--and for the 
integrity of a three branch system of government in general--is simply 
unacceptable.
  S. 214 will repeal the provision that prompted this plan to 
circumvent the confirmation process. Enacting this bill is an important 
start in preventing further abuses.
  I want to note that the concerns expressed by some of my colleagues 
about the involvement of the district courts in making interim 
appointments just don't ring true. Beginning in the late 1800s, and 
continuing until the fiasco of this past year, district courts were 
involved in the interim appointment process. In the time that the 
district courts were involved, either exclusively--until 1986--or as a 
fail-safe after the Attorney General exercised a temporary appointment 
power--from 1986-2006--the interim appointment process went smoothly. 
Never before have we seen an administration hatch a plan to replace a 
large number of U.S. attorneys in the middle of a term for what appear 
to be political reasons. The reason, of course, is that until this 
year, individuals appointed on an interim basis could only serve for 
120 days without Senate confirmation.
  By repealing this clearly ill-advised change to interim appointment 
power and returning to the law used for the previous 20 years, S. 214 
allows for the needed flexibility to accommodate short-term interim 
appointments made by the Attorney General while also ensuring that the 
Senate confirmation process remains in place for permanent 
appointments. And the Senate confirmation process allows states like 
mine to encourage a transparent and accountable selection process for 
these important positions.
  These are grave matters, for it is absolutely vital that our citizens 
be able to rely on the integrity of the justice system. It is equally 
important that they have confidence that individuals who represent the 
Federal Government in the justice system are above reproach, and are 
acting in the interest of justice--and not politics--at all times. Even 
an appearance of impropriety can harm our judicial system and, in turn, 
harm the rule of law by undermining citizens' confidence in its 
integrity.
  Whatever role political motivations played in the dismissals of these 
U.S. attorneys--and each day more evidence surfaces to suggest that 
politics did, in fact, play quite a large role--I think it

[[Page S3306]]

is clear that the administration has not acted in a manner that upholds 
the best interests of law enforcement and the reputation of our 
criminal justice system. We have a duty to remedy this problem, and 
passing S. 214 is an important step towards doing so.
  We must ensure that there is, once again, some accountability in how 
U.S. attorneys are selected to serve. It is the very least that we can 
do to help restore the public's confidence that our criminal justice 
system is above partisan interference.
  Mr. BYRD. Mr. President, Robert Browning, a brilliant British poet, 
once wrote a stirring poem about an unpleasant subject, namely: Rats.
  A key section of the poem reads as follows:

     Out of the houses the rats came tumbling.
     Great rats, small rats, lean rats, brawny rats,
     Brown rats, black rats, gray rats, tawny rats.
     Grave old plodders, gay young friskers,
     Fathers, mothers, uncles, cousins,
     Cocking tails and pricking whiskers,
     Families by tens and dozens,
     Brothers, sisters, husbands, wives--
     Followed the Piper for their lives.

  Mr. President, it is gotten so that, every morning when I open the 
paper and see another story describing the administration's 
incompetence or wrongdoing, Robert Browning's vision of administration 
wrongdoers tumbling out of the house comes into my mind. ``Brothers, 
sisters, husbands, and wives,'' who followed the misled Piper--in this 
case, the President, ``for their lives.'' And they may pay dearly, as a 
result. Just as the entire country is now paying dearly for the 
arrogant, reckless and misguided policies of this Administration.
  We see more clearly, every day, that the executive branch of our 
Government is in dire need of a thorough housecleaning, to rid itself 
of the conniving agents lodged in its bureaus, who apparently will stop 
at nothing to grab power for the Executive at the expense of the 
Congress and the People who send us here to represent them.
  Last year, in one of several bills reauthorizing the PATRIOT Act--all 
of which I voted against--a small provision was added by the then-
Republican majority. It enabled administration officials to fire any 
U.S. attorney whose politics they did not like and replace them with 
what in Las Vegas are called ``shills.'' The word shill is defined by 
Webster's Dictionary to mean, ``one who acts as a pitchman''--in this 
case, for the administration.
  The provision, which was tucked into the PATRIOT Act reauthorization, 
permits the administration to fire and appoint new U.S. attorneys, 
whose term in office can be indefinite and never subject to Senate 
confirmation. What an abomination!
  I was one of only ten U.S. Senators who voted against the legislation 
that made this possible, and, in retrospect, I am feeling quite proud 
of that vote.
  A U.S. attorney is supposed to be the chief Federal law enforcement 
officer in his or her state. It is critical that U.S. attorneys be able 
to enforce the law and perform their duties, free of political pressure 
to achieve a partisan end. Federal law is to be applied fairly and 
objectively; not to fuel a political witch hunt or to feather the nest 
of a political contributor.
  This White House has made it crystal clear that it has no respect for 
the separation of powers; no respect for our constitutional system of 
checks and balances; and no respect for even the rule of law, going so 
far as to pervert the appointment of U.S. attorneys for its own 
partisan purposes.
  Well, key officials in this administration may be in for a rude 
awakening. The rule of law remains alive and well in the hearts of most 
Americans. If our laws apply to the American people, must they not also 
apply to the Justice Department? And to the White House? Imagine how 
baffled the American public must be to hear that the nation's chief law 
enforcement officer, U.S. Attorney General Alberto Gonzales, defends 
the administration's actions as follows: in the March 14 Washington 
Post, Attorney General Gonzales stated that he knew nothing of the 
scandal surrounding this issue, because he ``was not involved in seeing 
any memos, was not involved in any discussions about what was going 
on,'' and, he said, ``that's basically what I knew as the attorney 
general.''
  Is that possible? Isn't that preposterous? Are we really to believe 
that, as head of the Justice Department, the chief law enforcement 
officer of the nation knew nothing about efforts to replace a plethora 
of U.S. attorneys nationwide? Which is worse: that he knew nothing that 
his Deputy was doing, or, instead, that he did know there was a scheme 
in place, hatched by the White House, to evade congressional oversight?
  The administration's appointment of these U.S. attorneys constitutes 
a serious breach of the public trust. Americans don't want law 
enforcement officials appointed based on their good looks, family 
connections, or because the Republican National Committee wants to 
groom them to run for Congress some day. U.S. attorneys should be 
nominated and confirmed by the Senate based on merit. Only the 
Constitution affords the people the powers and the prerogatives that 
keep us a free nation. The constitutional doctrines of checks and 
balances and separation of powers are the foundations of our 
government, so brilliantly formulated by the Founders in 1787. My long 
study of constitutional history and a lifetime of public service have 
made me keenly aware of why so many Americans have given their lives to 
protect these basic principles. This is why we must continue to fight 
to ensure that our constitutional rights and privileges are never 
undermined or trampled by an ambitious, overly zealous executive branch 
like the one now in the White House. That is why we must enact S. 214--
to restore the Senate's role in the confirmation of U.S. attorneys. The 
Founders granted the Senate the power of confirmation, precisely so 
that we could prevent a corrupt White House from undertaking exactly 
the indefensible actions that this White House has embraced with 
respect to the appointment of U.S. attorneys. Let us put a stop to 
those actions right here and right now.
  Let us begin today to clean the house and rid our ship of state of 
the pests that gnaw away at our constitutional protections.
  The PRESIDING OFFICER. The question is on the engrossment and third 
reading of the bill.
  The bill was ordered to be engrossed for a third reading and was read 
the third time.
  Mr. LEAHY. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. LEAHY. Mr. President, I believe there are 2 minutes equally 
divided. I simply ask all Senators, send a very strong signal. We want 
to correct the mistake made in the PATRIOT Act, a mistake that has been 
utilized the wrong way. We want to go back to the appointment of U.S. 
attorneys the way they should be appointed. We want to have the advice 
and consent of the Senate. I urge all Senators to vote for the 
legislation Senator Feinstein and I and Senator Specter and others have 
introduced.
  The PRESIDING OFFICER. The bill having been read the third time, the 
question is, Shall it pass?
  The yeas and nays have been ordered. The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Delaware (Mr. Biden), 
the Senator from South Dakota (Mr. Johnson), and the Senator from 
Maryland (Ms. Mikulski) are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Maryland (Ms. Mikulski) would vote ``yea.''
  Mr. LOTT. The following Senator is necessarily absent: the Senator 
from Arizona (Mr. McCain).
  The result was announced--yeas 94, nays 2, as follows:

                      [Rollcall Vote No. 81 Leg.]

                                YEAS--94

     Akaka
     Alexander
     Allard
     Baucus
     Bayh
     Bennett
     Bingaman
     Boxer
     Brown
     Brownback
     Bunning
     Burr
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Clinton
     Coburn
     Cochran
     Coleman
     Collins
     Conrad
     Corker
     Cornyn
     Craig
     Crapo
     DeMint
     Dodd
     Dole
     Domenici
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     Graham
     Grassley
     Gregg
     Harkin
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Kennedy

[[Page S3307]]


     Kerry
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     Martinez
     McCaskill
     McConnell
     Menendez
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Obama
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Salazar
     Sanders
     Schumer
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Tester
     Thomas
     Thune
     Vitter
     Voinovich
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--2

     Bond
     Hagel
       

                             NOT VOTING--4

     Biden
     Johnson
     McCain
     Mikulski
  The bill (S. 214), as amended, was passed, as follows:

                                 S. 214

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Preserving United States 
     Attorney Independence Act of 2007''.

     SEC. 2. VACANCIES.

        Section 546 of title 28, United States Code, is amended by 
     striking subsection (c) and inserting the following:
       ``(c) A person appointed as United States attorney under 
     this section may serve until the earlier of--
       ``(1) the qualification of a United States attorney for 
     such district appointed by the President under section 541 of 
     this title; or
       ``(2) the expiration of 120 days after appointment by the 
     Attorney General under this section.
       ``(d) If an appointment expires under subsection (c)(2), 
     the district court for such district may appoint a United 
     States attorney to serve until the vacancy is filled. The 
     order of appointment by the court shall be filed with the 
     clerk of the court.''.

     SEC. 3. APPLICABILITY.

       (a) In General.--The amendments made by this Act shall take 
     effect on the date of enactment of this Act.
       (b) Application.--
       (1) In general.--Any person serving as a United States 
     attorney on the day before the date of enactment of this Act 
     who was appointed under section 546 of title 28, United 
     States Code, may serve until the earlier of--
       (A) the qualification of a United States attorney for such 
     district appointed by the President under section 541 of that 
     title; or
       (B) 120 days after the date of enactment of this Act.
       (2) Expired appointments.--If an appointment expires under 
     paragraph (1), the district court for that district may 
     appoint a United States attorney for that district under 
     section 546(d) of title 28, United States Code, as added by 
     this Act.

  Mr. SALAZAR. I move to reconsider the vote and I move to lay that 
motion on the table.
  The motion to lay on the table was agreed to.

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