[Congressional Record Volume 153, Number 52 (Monday, March 26, 2007)]
[House]
[Pages H3036-H3041]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              {time}  1730
             INTERIM APPOINTMENT OF UNITED STATES ATTORNEYS

  Mr. CONYERS. Mr. Speaker, I move to suspend the rules and pass the 
bill (H.R. 580) to amend chapter 35 of title 28, United States Code, to 
provide for a 120-day limit to the term of a United States attorney 
appointed on an interim basis by the Attorney General, and for other 
purposes, as amended.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                                H.R. 580

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

     SECTION 1. INTERIM APPOINTMENT OF UNITED STATES ATTORNEYS.

       Section 546 of title 28, United States Code, is amended by 
     striking subsection (c) and inserting the following new 
     subsections:
       ``(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.
       ``(e) This section is the exclusive means for appointing a 
     person to temporarily perform the functions of a United 
     States attorney for a district in which the office of United 
     States attorney is vacant.''.

     SEC. 2. APPLICABILITY.

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

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Michigan (Mr. Conyers) and the gentleman from North Carolina (Mr. 
Coble) each will control 20 minutes.
  The Chair recognizes the gentleman from Michigan.


                             General Leave

  Mr. CONYERS. Mr. Speaker, I ask unanimous consent that all Members 
have 5 legislative days to revise and extend their remarks and include 
extraneous material on the bill under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Michigan?
  There was no objection.
  Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, the measure before us today has been introduced by the 
gentleman from California, a ranking member of the committee and a 
subcommittee Chair, Howard Berman. It is intended to restore the 
historical checks and balances to the process by which interim U.S. 
Attorneys are appointed. It will repair a breach in the law that has 
been a major contributing factor in the recent termination of eight 
able and experienced United States Attorneys and their replacement with 
interim appointments. It has gathered much attention across this 
Nation, and not just in government and legal circles.
  The full circumstances surrounding these terminations are still 
coming to light, but what we know is already very troubling. The 
reports about these terminations are particularly troubling in that the 
United States Attorneys are among the most powerful government 
officials we have. They have the power to seek convictions and bring 
the full weight of the United States Government against any citizen or 
company that they deem important and eligible for prosecution. They can 
negotiate plea agreements. They can send people to prison for years and 
years. And frequently, the mere disclosure of a criminal investigation 
can destroy reputations and careers.
  These are awesome powers. And so we on the Judiciary Committee 
consider it absolutely essential that the American people have full 
confidence in those entrusted to exercise these powers and that they do 
so with complete integrity and free from political influence of any 
kind.
  The committee's investigation into these troubling circumstances is 
continuing. The longer time goes on, the more we know; and the more we 
know, the more we are troubled about what has been going on in the 
Department of Justice. It has already become abundantly clear that the 
gaping vulnerability in the law, which has placed the independence and 
integrity of our prosecutorial system in jeopardy, needs to be repaired 
as quickly as possible; and that is what we are here to do today.
  What helped bring these troubling circumstances about, what helped 
make it possible for high-level Justice Department and White House 
officials to even entertain the notion that they could, as appears to 
be the case, target certain U.S. Attorneys for an unprecedented mid-
course purge was an obscure provision adequately and anonymously 
slipped into the USA PATRIOT Reauthorization Act conference report in 
March of 2006. Without any debate, let alone the benefit of a single 
hearing in either body, this provision, added at the behest of the 
Justice Department's top political appointees to significantly enhance 
the power to appoint interim U.S. Attorneys without having to subject 
their appointments to customary safeguard of Senate confirmation. It 
was a middle-of-the-night insertion, and we are here to correct that.
  Indeed, the administration's plan to exploit the new provision to 
bypass the Senate confirmation process is now well documented. As 
bluntly explained

[[Page H3037]]

by internal e-mails we received, and they now number in the hundreds, 
although we get them late on Friday nights, by the Attorney General's 
then-chief of staff, for example, discussing their plan to install the 
former Republican National Committee political operative, the new 
provision would enable them to ``give far less deference to home State 
Senators and thereby get our preferred person appointed and do it far 
faster and more efficiently at less political cost to the White 
House.''
  This is outrageous. The Senate has already acted. The time is now. We 
need to move as rapidly as we can to correct this very serious error 
that casts a question upon the integrity of a very, very important part 
of our government, the Department of Justice.
  Speaker, the bill before us today, introduced by my friend Howard 
Berman, will restore the historical checks and balances to the process 
by which interim U.S. Attorneys are appointed. It will repair a breach 
in the law that has been a major contributing factor in the recent 
termination of eight able and experienced United States Attorneys and 
their replacement with interim appointments.
  The full circumstances surrounding these terminations are still 
coming to light, but what we know already is very troubling.
  In one instance, the primary apparent qualification for the 
President's chosen replacement was that he had been an aggressive 
political operative at the Republican National Committee, thereby 
putting himself on Karl Rove's A list. In several other instances, the 
U.S. Attorney was in the midst of a sensitive public corruption 
investigation, and there were reportedly complaints from Republicans 
that the investigation was being pursued too aggressively against a 
fellow Republican, or was not being pursued aggressively enough against 
a Democrat.
  The reports about these terminations are particularly troubling in 
that U.S. Attorneys are among our most powerful government officials. 
They not only have power to seek convictions and negotiate plea 
agreements that can send people to prison for years. The mere 
disclosure of a criminal investigation can destroy reputations and 
careers.
  These are awesome powers, and it is absolutely essential that the 
American people can have full confidence those entrusted to exercise 
these powers do so with complete integrity and free from improper 
political influence.
  The Committee's investigation into these troubling circumstances is 
continuing, and we will know more, and we will leave extended 
discussion of them for another day. But it has already become 
abundantly clear that the gaping vulnerability in the law, which has 
placed the independence and integrity of our prosecutorial system in 
jeopardy, needs to be repaired as quickly as possible. And that is what 
we are here to do today.
  What helped bring these troubling circumstances about--what helped 
make it possible for high-level Justice Department and White House 
officials to even entertain the notion that they could, as appears to 
be the case, target certain U.S. Attorneys for an unprecedented mid-
course purge--was an obscure provision quietly and anonymously slipped 
into the USA PATRIOT Reauthorization Act conference report in March 
2006.
  Without any I debate, let alone the benefit of a single hearing in 
either body, this provision was added at the behest of the Justice 
Department's top political appointees, to significantly enhance their 
power to appoint interim U.S. Attorneys, without having to subject the 
appointments to the customary safeguard of Senate confirmation.
  Indeed, the Administration's deliberate plan to exploit the new 
provision to bypass the Senate confirmation process is now well 
documented. As bluntly explained in an internal e-mail by the Attorney 
General's then chief of staff, for example, discussing their plan to 
install the former RNC political operative, the new provision would 
enable them to ``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.''
  Traditionally--since the Civil War--whenever a U.S. Attorney left 
office, and until the Senate could confirm a replacement, the local 
federal district court has appointed someone to fill the position on an 
interim basis. This was a neutral means of ensuring that permanent 
appointments remained the shared responsibility of the President and 
the Senate--to encourage the President to send a nomination to the 
Senate promptly, and to encourage the Senate to act promptly on the 
nomination.
   In 1986, at the request of Attorney General Ed Meese, the law was 
modified to authorize the Attorney General to make short-term interim 
U.S. Attorney appointments, for up to 120 days. But if a permanent U.S. 
Attorney had not been confirmed by the end of that 120 days, the 
district court retained authority to make the appointment for the 
remainder of the interim period. This procedure, codified in 28 U.S.C. 
Sec. 546, preserved the incentives on the Executive and Legislative 
Branches to work together on the nomination and confirmation of a 
permanent replacement.
  That balanced approach was unceremoniously jettisoned a year ago, and 
with it respect for the Senate's role in ensuring that the President's 
power to hire and fire U.S. Attorneys at will was not abused at the 
expense of prosecutorial integrity.
  The stealth provision in the 2006 USA PATRIOT Reauthorization Act 
completely removed the district court as a backstop in the interim 
appointment process, turning over sole power to the Attorney General, 
to unilaterally make interim appointments, for an unlimited time, with 
no obligation to involve the Senate, or the Judicial Branch, or anyone 
else.
  H.R. 580 will restore the checks and balances that have historically 
provided a critical safeguard against politicization of U.S. Attorneys. 
First, it repeals the 2006 change to section 546, keeping the Attorney 
General's interim appointment role, but limiting it to 120 days, as it 
was before.
  Second, the bill clarifies that section 546 is the only way to make 
interim U.S. Attorney appointments. This additional change has become 
necessary in light of indications, documented by the Congressional 
Research Service, that the Justice Department has used, and could again 
use, the Federal Vacancies Reform Act to evade the intent of a 
tightened section 546.
  Mr. Speaker, this bill is an important step in restoring legal 
safeguards against abuse of Executive power to politicize core 
government functions that need to be above political calculations in 
their execution. I urge my colleagues to support this important 
legislation.
  Mr. Speaker, I reserve the balance of my time.
  Mr. COBLE. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I rise in mild opposition to H.R. 580, primarily against 
the process rather than substantively.
  Scrutiny over the dismissal of several U.S. Attorneys in recent days 
may have triggered this legislation. While we are still learning the 
facts surrounding those dismissals, it does remain clear that the U.S. 
Attorneys do indeed serve at the pleasure of the President. Some are 
calling for oversight investigation because of the political appearance 
surrounding those dismissals, and this is fine; but amending the 
appointment process for interim U.S. Attorneys I believe is the wrong 
response.
  Prior to 1986, the district court appointed interim U.S. Attorneys to 
fill vacancies until a Presidential appointee had been nominated and 
confirmed by the Senate. In 1986, the process was changed to authorize 
the Attorney General to appoint an interim United States Attorney for 
120 days, at which time, if the Senate had not confirmed a new United 
States Attorney, the district court would then appoint an interim to 
serve until a new permanent United States Attorney was indeed 
confirmed.
  This process was not infallible. Some said authorizing the judiciary 
to appoint the prosecutors before their court created a conflict of 
interest, and I think a good argument can be made for that. Others said 
the Executive could maneuver the Constitution by terminating a court-
appointed interim by repeatedly substituting its own interim for 120-
day stints. A good argument could well be made for that as well.
  In 2005, the process for appointing interim United States Attorneys, 
however, was changed once again. This was an amendment to section 546 
of title 28, which eliminated the 120-day time limit for an Executive-
appointed interim to serve and eliminated the authority for the 
district court to appoint an interim.
  Unfortunately, one of these responses to the recent dismissals had 
been H.R. 580, which would return the process of appointing interim 
United States Attorneys for 120 days and authorizing the judiciary to 
appoint interims if a permanent United States Attorney is not confirmed 
prior to the 120-day passes.
  The bill, H.R. 580, was accelerated through the Judiciary Committee. 
Only one hearing was held on the bill. That hearing focused mostly on 
the current U.S. Attorney controversy, not the bill itself. It was then 
heard by the full committee, but there was no opportunity for the 
Judiciary Subcommittee on Commercial Administrative Law markup to 
therefore improve the bill.

[[Page H3038]]

  Republicans on the Judiciary Committee, many of us, would have liked 
to have worked with the Democrats in a bipartisan fashion more 
thoroughly, and I think we may have come at the finish line with a more 
favorable finished product. Given more time, we might have considered 
some promising ideas. For instance, this bill does not address the 
problem of appointing and confirming United States Attorneys in a 
timely fashion. Senators Kyl and Sessions introduced amendments in the 
Senate proposing several other responses to inherent conflicts created 
by United States Attorney vacancies and possible ways to provide for 
interims.
  In these times of the war on terror, Mr. Speaker and colleagues, and 
the continuing age-old war on crime, the service of the United States 
Attorneys, indeed the front line of Federal law enforcement, is more 
than ever a matter of first importance to the Nation. Their appointment 
is serious business. We should not have rushed to judgment in attending 
to this business, but instead have given the legislative process more 
time to work. I think we missed an opportunity to improve the bill as a 
result.
  Mr. Speaker, I reserve the balance of my time.
  Mr. CONYERS. Mr. Speaker, I yield myself 15 seconds only to say, Mr. 
Howard Coble, I recognize you as a sincere and experienced and valued 
member of this committee, and I appreciate the circumstances that you 
are in this evening.
  Mr. Speaker, I yield 4 minutes to the subcommittee chairwoman, Linda 
Sanchez of California, and I thank her for the excellent job that she 
has done.
  Ms. LINDA T. SANCHEZ of California. Mr. Speaker, I rise in support of 
H.R. 580, a bill to revoke the Attorney General's unfettered authority 
to appoint U.S. Attorneys indefinitely.
  This legislation would repeal a small provision, with enormous 
repercussions, that was placed into the USA PATRIOT Reauthorization Act 
conference report. The provision, which removed the 120-day limit for 
interim appointment of U.S. Attorneys, allows interim appointees to 
serve indefinitely and without Senate confirmation.
  We now know that the provision was inserted into the conference 
report at the request of a Justice Department official. Clearly, the 
Justice Department's effort to insert this provision was just one part 
of the Bush administration's coordinated plan to purge U.S. Attorneys 
across the country for political reasons.
  My suspicions about the role of this provision in the firing of at 
least eight U.S. Attorneys have been confirmed after reading the 
documents turned over by the Justice Department. We learned, for 
example, that in an e-mail to former White House Counsel Harriet Miers, 
former Attorney General Chief of Staff Kyle Sampson wrote: ``I strongly 
recommend that as a matter of administration policy we utilize the new 
statutory provisions that authorize the Attorney General to make U.S. 
Attorney appointments.''
  The Congressional Research Service, a nonpartisan entity, has 
completed a report finding that these firings are unprecedented. Prior 
to the forced resignation of eight U.S. Attorneys in recent months, and 
outside the normal turnover of U.S. Attorneys that occurs with a new 
administration, only 10 U.S. Attorneys were forced to resign in the 
last 25 years. The 10 U.S. Attorneys cited in the CRS report were all 
fired for cause, most under a cloud of scandal.
  H.R. 580, legislation offered by my friend and colleague from 
California, Representative Howard Berman, provides the necessary 
legislative response to restore checks and balances in the U.S. 
Attorney appointment process by reinstating the 120-day limit on all 
interim appointments.
  The bill also closes other potential loopholes through which Senate 
confirmation could be bypassed. It clarifies that section 546 of title 
28 of the United States Code is the exclusive means of appointing 
interim U.S. Attorneys.
  Additionally, the bill would apply retroactively to all U.S. 
Attorneys currently serving in an interim capacity. This would ensure 
that interim U.S. Attorneys appointed since the purge scheme was 
hatched are not permitted to serve indefinitely and without Senate 
confirmation.
  At a legislative hearing on H.R. 580 before the Subcommittee on 
Commercial and Administrative Law on March 6, this bill received strong 
support from the president of the National Association of Former U.S. 
Attorneys, as well as a former Republican-appointed U.S. Attorney. It 
is also important to note that the Attorney General himself has 
expressed that he is not opposed to rolling back this provision of the 
PATRIOT Act. And if the Attorney General's claim that he was not aware 
of the Justice Department efforts to quietly insert this provision are 
true, it would seem he never wanted the PATRIOT Act changes to the U.S. 
Attorney selection process in the first place.
  Additionally, the corresponding bill in the Senate received strong 
bipartisan support and passed by an overwhelming margin of 94-2.
  Mr. Speaker, we must begin to restore the independence of U.S. 
Attorneys across the country and return to the bedrock principle of our 
court system that justice must be served objectively and without fear 
or favor.

                              {time}  1745

  While the consideration of H.R. 580 will not end the Judiciary 
Committee's ongoing investigation of the U.S. Attorney purge scheme, 
the passage of this legislation is a critical step in this process to 
close the loophole in the PATRIOT Act that this administration has 
improperly exploited for political purposes.
  I urge my colleagues to support this legislation.
  Mr. COBLE. Mr. Speaker, I reserve the balance of my time.
  Mr. CONYERS. Mr. Speaker, I recognize Howard Berman, the senior 
member on the Judiciary Committee, and thank him for his authorship of 
the measure that brings us to the floor this evening. I yield to him 5 
minutes.
  Mr. BERMAN. Mr. Speaker, I thank the chairman who cosponsored this 
bill with me, along with the gentleman from Virginia (Mr. Scott), 
chairman of the Crime Subcommittee of Judiciary Committee.
  H.R. 580 does only one thing, it restores the checks and balances 
that, until last year, had long been part of the process for filling 
vacancies in U.S. Attorneys' offices.
  I won't go through the history of how interim U.S. Attorneys were 
appointed, because the chairman has spelled it out, and the gentleman 
from North Carolina has reaffirmed that history. But I want to address 
the one issue my friend from North Carolina raised, which is, were we 
to take a longer time, this might have been, at least to his way of 
thinking, a better approach.
  The whole goal of this bill is to restore the status quo ante before 
a sneak attack change on the law utilized in the PATRIOT Act without 
anyone calling special attention to it, undiscussed by the conferees or 
by the members of either this House or the other body, change that law 
to give the executive bench total authority in this particular area.
  The Senator, a member of the other body who was chairman of the 
Judiciary Committee of the other body during this time, has said that 
he didn't know about the provision until a colleague alerted him to it 
last month. The former chairman's staff told him that the Department of 
Justice provided the language and that it was inserted in the 
conference report by a member of his staff who was made U.S. Attorney 
in Utah only 4 months later.
  Now we have a different story from the Department of Justice. Will 
Moschella, the former head of the Office of Legislative Affairs, now 
claims sole responsibility for the provision and says he pursued the 
change on his own, without the knowledge or coordination of his 
superiors at the Justice Department or the White House.
  This is a Department, the Department of Justice, that says it fired 
eight U.S. Attorneys for not coordinating their work 100 percent with 
the priorities of the Department, and yet we are supposed to believe 
that they are permitting a relatively low-level official to fly solo in 
changing Federal law on the appointment of U.S. Attorneys without any 
other departmental involvement. It is for this reason, I say to my 
friend from North Carolina, that the first thing we need to do is to go 
back to the status quo ante, the compromise worked out in the Reagan 
administration with Attorney General Ed

[[Page H3039]]

Meese, a Democratic House and the Republican Senate in 1986, which 
allowed for this process where we gave for the first time the Attorney 
General the right to name an interim U.S. Attorney, providing the 
district court with the theoretical ability, should that court choose 
to do so, to replace or, as has been much more likely, simply reaffirm 
the naming of the interim U.S. Attorney if no full U.S. Attorney had 
been confirmed yet by the Senate.
  What is clear from the e-mails provided to the Judiciary Committee is 
that the Department of Justice and White House employees, whatever 
their motivation in pushing this proposal originally, whatever their 
motivation, they quickly figured out that the provision created the 
possibility to circumvent the Senate and decided to exploit that power.
  One e-mail between the Department of Justice and the White House 
depicts an effort to slow-walk a nomination so an interim appointee can 
stay in place. The two employees discussed an interim appointee in 
Arkansas who they knew was unlikely to get Senate confirmation.
  An employee in the White House Counsel's Office writes, ``If this is 
a section 546 appointment for unlimited duration, he can call himself 
U.S. Attorney. Our talkers should avoid referring to him as 
'interim.'''
  The Attorney General's chief of staff replies, and I quote, ``We 
should gum this to death. Our guy is in there so the status quo is good 
for us. Pledge a desire for a Senate-confirmed U.S. Attorney and 
otherwise hunker down.''
  I suggest there is ample opportunity in the record to recognize that 
the change we made in the PATRIOT Act without the knowledge, as far as 
I can tell, of any representative of either House was an ill-considered 
change; and the first thing we need to do and what this bill does is 
bring the law back to what had existed.
  Mr. CONYERS. Mr. Speaker, how much time remains on either side?
  The SPEAKER pro tempore. The gentleman from Michigan has 5 minutes; 
the gentleman from North Carolina has 15\1/2\ minutes.
  Mr. COBLE. Mr. Speaker, I reserve the balance of my time.
  Mr. CONYERS. I recognize the gentleman from Oregon (Mr. Blumenauer) 
for 1 minute.
  Mr. BLUMENAUER. Mr. Speaker, I appreciate the chairman's courtesy in 
permitting me to speak on this bill. I appreciate also what Ranking 
Member Coble talked about in terms of outlining these issues.
  But it seems to me that there was just one area where I would take 
modest exception with him, and that is the notion that we should have 
been taking more time to vet this and look at alternatives. Because I 
fully agree with the gentleman from California, where there was not 
adequate time for Congress to be involved is when this was slipped into 
the PATRIOT Act revisions in the first place. Without the knowledge of 
anybody, it seems, in the House or the Senate, this change was done by 
the staff behind closed doors. We didn't know about it. I haven't heard 
yet from any of my Republican friends that did.
  By restoring the status quo ante the way that it had been for years, 
we get back to a situation where we can remove this from the table. We 
can have a dispassionate discussion about what has happened with the 
Department of Justice and its future; and, if we want to make any 
change, then at least we have something that has stood the test of 
time.
  Mr. COBLE. Mr. Speaker, I reserve the balance of my time.
  Mr. CONYERS. The gentleman from Washington (Mr. Inslee) is recognized 
for 2 minutes.
  (Mr. INSLEE asked and was given permission to revise and extend his 
remarks.)
  Mr. INSLEE. Mr. Speaker, this bill could not be more timely. As I was 
walking across the street in front of the Supreme Court, I saw the 
inscription chiseled in the marble of the Supreme Court. It says, 
``Equal justice under law.'' But we have witnessed now in the last few 
weeks the unpeeling of a scandal where the executive branch fired eight 
well-performing U.S. Attorneys because they would not do the political 
dirty work of the White House. And it is apparent now, as much as it 
has ever been, that we have to have a check and balance on the 
executive branch with Senate confirmation.
  I want to know why this is so viscerally important. In my district in 
western Washington, we had a gentleman named John McKay who was doing, 
by all rights, a good job as a U.S. Attorney for western Washington. 
But then there was this contentious election out there for Governor in 
2004, and a bunch of Republicans were leaning on him to start a grand 
jury investigation alleging voter fraud because the vote came out in 
favor of the Democrat. He refused to do so because he said he didn't 
see any evidence of voter fraud.
  A little later what happens is he goes to the White House for a 
meeting about a prospective judgeship, and what do they ask him about? 
They say: How come Republicans are mad at you, at the White House. And 
he knows what they are mad about, is because they wouldn't go after 
this case where there was no evidence of voter fraud. It was apparent 
they were leaning on him; and, when he did not collapse, he was fired.
  Now, this is a situation where it is clear that we need Senate 
confirmation. And, by the way, I have written a letter to the President 
today saying the President should reinstate that U.S. Attorney while 
this matter is investigated. This thing smells like a mackerel in the 
moonlight, and it needs to be resolved. Until it is resolved, Congress 
is going to be investigating; and to prevent this from happening again, 
we need to be sure we have Senate confirmation.
  Mr. COBLE. Mr. Speaker, the gentleman from Washington referred to it 
as scandal. It may well end up being a scandal, but I think to use that 
word today might well be premature. But, meanwhile, I reserve the 
balance of my time.
  Mr. CONYERS. Mr. Speaker, I yield to the gentlewoman from Texas, 
Sheila Jackson-Lee, 1 minute.
  (Ms. JACKSON-LEE of Texas asked and was given permission to revise 
and extend her remarks.)
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I thank the distinguished 
gentleman, and I rise with sadness to support this legislation that 
clears up the obviously ongoing abuse and disrespect of the integrity 
of the three branches of government.
  We passed the PATRIOT Act that some of us did not support, but we did 
not intend for it to be used to avoid the constitutional Senate 
confirmation process. That is what has happened. We understand now that 
the Attorney General unfortunately may have been in meetings, may have 
been informed of issues dealing with the termination of U.S. Attorneys 
without providing that direct information to the United States 
Congress.
  This legislation again sets the Constitution back on its feet. It 
allows for Senate confirmation for U.S. Attorneys, and it puts back on 
track the integrity in terms of the respect and integrity that is 
necessary for the judiciary and legal system that the American people 
have come to understand and believe. I believe we should support this 
bill, and I hope we will get back on track with the relationship 
between Congress, the executive, and the judiciary.
  Mr. Speaker, I rise in strong support of H.R. 580, which amends 
chapter 35 of title 28 of the United States Code to restore the 120-day 
limit on the term of a United States Attorney appointed on an interim 
basis by the Attorney General. The shocking disclosures of the last few 
weeks provide all the justification needed to adopt this salutary 
measure promptly and by an overwhelming margin. Our friends in the 
other body passed companion legislation last week by a vote of 94-2.
  Mr. Speaker, United States Attorneys are appointed by the President 
with the advice and consent of the Senate. Each United States Attorney 
so appointed is authorized to serve a 4-year term but is subject to 
removal by the President without cause. The Senate's advise and consent 
process formally checks the power of the President by requiring the 
United States Attorney nominee to go through a confirmation process. In 
addition, Senators also play a particularly influential informal role 
in the nomination of United States Attorneys.
  Typically, a President, prior to appointing a new United States 
Attorney, consults with the Senators from the State where the vacancy 
exists if they are members of the President's political party. The 
President usually accepts the nominee recommended by the Senator or 
other official. This tradition, called ``senatorial courtesy,'' serves 
as an informal check on the President's appointment power.

[[Page H3040]]

  Since the Civil War, the judiciary has been empowered to fill 
vacancies in the office of the United States Attorney. In 1966, that 
authority was codified at 28 U.S.C. Sec. 546. When a United States 
Attorney position became vacant, the district court in the district 
where the vacancy occurred named a temporary replacement to serve until 
the vacancy was filled. In 1986, in response to a request by the 
Attorney General that its office be vested with authority to appoint 
interim United States Attorneys, Congress amended the statute to add 
former section 546(d).
  Pursuant to this authority, the Attorney General was authorized to 
appoint an interim United States Attorney for 120 days and, if the 
Senate did not confirm a new United States Attorney within such period, 
the district court was then authorized to appoint an interim United 
States Attorney to serve until a permanent replacement was confirmed. 
By having the district court play a role in the selection of an interim 
United States Attorney, former section 546(d) allowed the judicial 
branch to act as a check on executive power. In practice, if a vacancy 
was expected, the Attorney General would solicit the opinion of the 
chief judge of the relevant district regarding possible temporary 
appointments.
  Twenty years later, section 546 was amended again in the USA PATRIOT 
Improvement and Reauthorization Act of 2005. This legislation amended 
section 546(c) to provide that ``[a] person appointed as United States 
attorney under this section may serve until the qualification of a 
United States Attorney for such district appointed by the President'' 
under 28 U.S.C. Sec. 541. The extent of the legislative history of this 
provision is one sentence appearing in the conference report 
accompanying the act: ``Section 502 [effecting the amendments to 
section 546] is a new section and addresses an inconsistency in the 
appointment process of United States Attorneys.''

  Although the legislative purpose is unclear, the practical effect is 
not. The act amended section 546 in two critical respects. First, it 
effectively removed district court judges from the interim appointment 
process and vested the Attorney General with the sole power to appoint 
interim United States Attorneys. Second, the act eliminated the 120-day 
limit on the term of an interim United States Attorney appointed by the 
Attorney General. As a result, judicial input in the interim 
appointment process was eliminated. Even more problematic, it created a 
possible loophole that permits United States Attorneys appointed on an 
interim basis to serve indefinitely without ever being subjected to a 
Senate confirmation process, which is plainly a result not contemplated 
by the Framers.
  Mr. Speaker, excluding changes in administration, it is rare for a 
United States Attorney to not complete his or her 4-year term of 
appointment. According to the Congressional Research Service, only 54 
United States Attorneys between 1981 and 2006 did not complete their 4-
year terms. Of these, 30 obtained other public sector positions or 
sought elective office, 15 entered or returned to private practice, and 
1 died. Of the remaining eight United States Attorneys, two were 
apparently dismissed by the President, and three apparently resigned 
after news reports indicated they had engaged in questionable personal 
actions.
  Mr. Speaker, in the past few months disturbing stories appeared in 
the news media reporting that several United States Attorneys had been 
asked to resign by the Justice Department. It has now been confirmed 
that at least seven United States Attorneys were asked to resign on 
December 7, 2006. An eighth United States Attorney was subsequently 
asked to resign. They include the following: H.E. Cummins, III, U.S. 
Attorney, E.D. Ark.; John McKay, U.S. Attorney, W.D. Wash.; David 
Iglesias, U.S. Attorney, D. N.M.; Paul K. Charlton, U.S. Attorney, D. 
Ariz.; Carol Lam, U.S. Attorney, S.D. Calif.; Daniel Bogden, U.S. 
Attorney, D. Nev.; Kevin Ryan, N.D. Calif.; and Margaret Chiara, W.D. 
Mich.
  On March 6, 2007, the Subcommittee on Commercial and Administrative 
Law held a hearing entitled, ``H.R. 580, Restoring Checks and Balances 
in the Confirmation Process of United States Attorneys.'' Witnesses at 
the hearing included six of the eight former United States Attorneys 
and William Moschella, Principal Associate Deputy Attorney General, 
among other witnesses.
  Six of the six former United States Attorneys testified at the 
hearing and each testified that he or she was not told in advance why 
he or she was being asked to resign. Upon further inquiry, however, 
Messrs. Charlton and Bogden were advised by the then Acting Assistant 
Attorney General, William Mercer, that they were terminated essentially 
to make way for other Republicans to enhance their credential and pad 
their resumes. In addition, Messrs. Iglesias and McKay testified about 
inappropriate inquiries they received from Members of Congress 
concerning pending investigation, which they surmised may have led to 
their forced resignations.
  Mr. Speaker, the USA PATRIOT Act Reauthorization provision on interim 
U.S. Attorneys should be repealed for two reasons. First, Members of 
Congress did not get an opportunity to vet or debate the provision that 
is current law. Rather the Republican leadership of the 109th Congress 
slipped the provision into the conference report at the request of the 
Department of Justice. Not even Senate Judiciary Chairman Arlen 
Specter, whose chief of staff was responsible for inserting the 
provision, knew about its existence.
  Second, it is now clear that the manifest intention of the proponents 
of the provision was to allow interim appointees to serve indefinitely 
and to circumvent Senate confirmation. We know now, for example, that 
in a September 13, 2006 e-mail to former White House Counsel Harriet 
Miers, Attorney General Chief of Staff Kyle Sampson wrote:

       I strongly recommend that, as a matter of Administration 
     policy, we utilize the new statutory provisions that 
     authorize the Attorney General to make U.S. Attorney 
     appointments.

  Mr. Sampson further said that by using the new provision, DOJ could 
``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.''
  Regarding the interim appointment of Tim Griffin at the request of 
Karl Rove and Harriet Miers, Mr. Sampson wrote to Monica Goodling, 
Senior Counsel to the White House and Liaison to the White House on 
December 19, 2006 the following:

       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, and otherwise run out the clock. All of this 
     should be done in `good faith,' of course.

  Finally, we now know that after gaining this increased authority to 
appoint interim U.S. Attorneys indefinitely, the administration has 
exploited the provision to fire U.S. Attorneys for political reasons. A 
mass purge of this sort is unprecedented in recent history. The 
Department of Justice and the White House coordinated this purge. 
According to an administration ``hit list'' released on Tuesday, U.S. 
Attorneys were targets for the purge based on their rankings. The 
ranking relied in large part on whether the U.S. Attorney ``exhibit[ed] 
loyalty to the President and Attorney General.''
  Mr. Speaker, until exposed by this unfortunate episode, United States 
Attorneys were expected to, and in fact did exercise, wide discretion 
in the use of resources to further the priorities of their districts. 
Largely a result of its origins as a distinct prosecutorial branch of 
the Federal Government, the office of the United States Attorney 
traditionally operated with an unusual level of independence from the 
Justice Department in a broad range of daily activities. That practice 
served the Nation well for more than 200 years. The practice that has 
been in place for less than 2 years has served the Nation poorly. It 
needs to end.
  Mr. Speaker, during the full committee markup of H.R. 580, I brought 
to my colleagues' attention the value of including in the bill or 
committee report the core congressional findings that forms the 
justification for this legislation. Briefly stated, those findings are 
as follows:
  The Congress finds as follows:
  (1) That United States Attorneys are ``inferior officers'' and 
therefore are subject to the Constitution's discretionary appointment 
provisions authorizing the Congress to vest the appointment power in 
the President alone or the judiciary.
  (2) Vesting the authority in the United States Attorney General to 
appoint an interim United States Attorney to serve an indefinite term 
undermines the confirmation process of the United States Senate and 
removes a legislative check on executive power.
  (3) Vesting residual power to appoint an interim United States 
Attorney in the Federal district court in which the vacancy occurs 
constitutes an important judicial check on executive power.
  Mr. Speaker, H.R. 580 is a thoughtful and well crafted legislative 
measure which will restore public confidence in the process by which 
interim United States Attorneys are appointed. I strongly support the 
bill and urge all Members to do likewise.
  Mr. COBLE. Mr. Speaker, I yield back the balance of my time.
  Mr. CONYERS. Mr. Speaker, Members of the House, the American people 
must have full confidence in the integrity and the independence of the 
United States Attorneys in charge of Federal prosecutions throughout 
the country, in every State. While they owe the President their 
appointments, once they are in their jobs their enforcement decisions 
must be unquestionably above politics; and that is why we are here 
today.

[[Page H3041]]

  Senate confirmation is required for each one of them in an open and 
public process, and it is a critical safeguard against politicization 
of our prosecutorial system. This safeguard has been severely 
compromised by the secret change that has been referred to, and this 
bill restores the safeguards.

                              {time}  1800

  I ask my colleagues to fully support this measure on both sides of 
the aisle.
  Mr. SMITH of Texas. Mr. Speaker, this legislation would return the 
procedures for appointing interim U.S. Attorneys to what it was before 
Congress reauthorized the PATRIOT Act.
  Some have claimed that the PATRIOT Act's reform was used to avoid 
Senate confirmation of permanent U.S. attorneys. To prevent that 
alleged abuse, this bill, H.R. 580, was rushed headlong through the 
Judiciary Committee.
  One hearing was held on the bill. But that hearing focused mostly on 
the current U.S. Attorney controversy, not the bill, itself. It was 
then pushed immediately to the full committee, without an opportunity 
for subcommittee mark-up.
  Republicans on the Judiciary Committee would have liked to have 
worked more with the Democrats in a bipartisan fashion to improve the 
existing law. We might well have found a better solution.
  The majority's own witnesses at the hearing, for example, testified 
that much of the problem with the interim appointments process is the 
time it takes to obtain Senate confirmation. This bill, however, does 
not address that problem.
  Given more time, we might have considered some promising ideas from 
the other side of the Capitol.
  Senator Kyl, for example, proposed a 120-day interim appointment 
power for the Executive Branch, and a 120-day clock for the Senate to 
confirm permanent appointees. This would have addressed the principal 
problem.
  Senator Sessions proposed to set qualification standards for judicial 
appointments of interim appointees. These standards would have helped 
prevent unsuitable judicial appointees--assuming, for the purposes of 
argument, that there should be any judicial appointees of Executive 
Branch prosecutors.
  This bill would allow judges to appoint the very Executive Branch 
prosecutors practicing before them, and would raise legal, ethical and 
practical concerns. Surely we could have done better than return to a 
flawed law of the past.
  The rush to legislation also led to an under-considered amendment 
adopted at committee mark-up. That amendment would preclude the use of 
the full range of tried and true tools in the Vacancy Reform Act to 
obtain interim U.S. Attorneys.
  Specifically, it would preclude the President from reaching out to 
Senate-confirmed, Presidential appointees serving in other capacities, 
rather than just career civil servants, to serve in these important 
posts on an interim basis.
  The amendment limits the pool of qualified individuals to serve 
temporarily as U.S. Attorneys, so it weakens the federal government's 
ability to fight crime.
  In these times of the War on Terror and the continuing, age-old war 
on crime, the service of U.S. Attorneys--the front line of federal law 
enforcement--is more than ever a matter of first importance to the 
Nation. Their appointment is serious business.
  We should not have rushed to judgment in attending to this business, 
but instead have given the legislative process the time that it 
deserves.
  We have missed an opportunity to improve this bill. The American 
people have not been well-served.
  Mr. CONYERS. Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Michigan (Mr. Conyers) that the House suspend the rules 
and pass the bill, H.R. 580, as amended.
  The question was taken.
  The SPEAKER pro tempore. In the opinion of the Chair, two-thirds 
being in the affirmative, the ayes have it.
  Mr. CONYERS. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the 
Chair's prior announcement, further proceedings on this question will 
be postponed.

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