[House Report 110-58]
[From the U.S. Government Publishing Office]
110th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 110-58
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INTERIM APPOINTMENT OF UNITED STATES ATTORNEYS
_______
March 20, 2007.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Conyers, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
SUPPLEMENTAL AND ADDITIONAL SUPPLEMENTAL VIEWS
[To accompany H.R. 580]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred 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, having considered the same, reports
favorably thereon with amendments and recommends that the bill
as amended do pass.
CONTENTS
Page
The Amendments................................................... 2
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 9
Committee Consideration.......................................... 10
Committee Votes.................................................. 10
Committee Oversight Findings..................................... 10
New Budget Authority and Tax Expenditures........................ 10
Congressional Budget Office Cost Estimate........................ 10
Performance Goals and Objectives................................. 11
Constitutional Authority Statement............................... 11
Advisory on Earmarks............................................. 11
Section-by-Section Analysis...................................... 12
Changes in Existing Law Made by the Bill, as Reported............ 12
Supplemental Views............................................... 15
Additional Supplemental Views.................................... 19
The Amendments
The amendments (stated in terms of the page and line numbers
of the introduced bill) are as follows:
Page 2, line 12, strike the quotation marks and second
period.
Page 2, insert the following after line 12:
``(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.
Purpose and Summary
H.R. 580 amends section 546 of title 28 of the United
States Code to permit an individual appointed by the Attorney
General to temporarily fill a vacancy in the office of the
United States Attorney. Such individual may serve until the
earlier of either: (1) the qualification of a United States
Attorney appointed by the President pursuant to section 541 of
title 28 of the United States Code; or (2) the expiration of
120 days after appointment by the Attorney General of such
individual as an interim United States Attorney. In addition,
the bill amends section 546 to add a new provision providing
that if the 120-day period expires, the district court for such
district may appoint a United States Attorney to serve until
the vacancy is filled. H.R. 580 clarifies that section 546 is
the exclusive means for appointing an individual to temporarily
perform the functions of a United States Attorney, and applies
to individuals already serving in an interim capacity.
Background and Need for the Legislation
UNITED STATES ATTORNEYS AND THE
PRESIDENTIAL APPOINTMENT AUTHORITY
There are 93 United States Attorneys across the country,
one for each of the 94 United States district courts (Guam and
the Northern Mariana Islands share one United States
Attorney).\1\ United States Attorneys conduct most of the trial
work in which the United States is a party.\2\ Their statutory
responsibilities include the prosecution of criminal cases
brought by the Federal Government, the prosecution and defense
of civil cases in which the United States is a party, and the
collection of debts owed the Federal Government that are
administratively uncollectible.\3\
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\1\ See U.S. Dep't of Justice, United States Attorneys' Manual
Sec. 1-2.500 (1997), available at http://www.usdoj.gov/usao/eousa/
foia--reading--room/usam/title1/2mdoj.htm#1-2.500; Kevin M. Scott, U.S.
Attorneys Who Have Served Less than Full Four-year Terms, 1981-2006,
CRS Report for Congress, RL 33889, at 1 (Feb. 22, 2007) [hereinafter
CRS Report].
\2\ See U.S. Dep't of Justice, United States Attorneys' Manual
Sec. 1-2.500 (1997), available at http://www.usdoj.gov/usao/eousa/
foia--reading--room/usam/title1/2mdoj.htm#1-2.500.
\3\ 28 U.S.C. Sec. 547 (2000).
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A United States Attorney exercises wide discretion in the
use of resources to further the priorities of his or her
district. Largely as a result of its origins as a distinct
prosecutorial outpost of the Federal Government, the office of
the United States Attorney traditionally has operated with an
unusual level of independence from the Justice Department in a
broad range of daily activities.\4\ As one commentator noted,
``U.S. Attorneys routinely decide [how] to focus limited
investigative and prosecutorial resources [and these decisions
are] informed by the U.S. Attorney's prosecutorial philosophy
and her assessment of the particular problems and
vulnerabilities within her district.'' \5\
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\4\ Ross E. Wiener, Inter-Branch Appointments After the Independent
Counsel: Court Appointment of United States Attorneys, 86 Minn. L. Rev.
363, 383 (2001).
\5\ Id. at 365-66.
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United States Attorneys are appointed by the President with
the advice and consent of the Senate.\6\ Each United States
Attorney so appointed is authorized to serve a 4-year term.\7\
At the expiration of such term, the United States Attorney may
continue to serve until a successor is appointed and
qualifies.\8\ A United States Attorney is subject to removal by
the President without cause.\9\
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\6\ 28 U.S.C. Sec. 541(a) (2000). The office of United States
Attorney was established pursuant to the Judiciary Act of 1789. Act of
Sept. 24, 1789, ch. 20, Sec. 35, 1 Stat. 73, 92. As originally
established, the United States Attorney appointed for a Federal
judicial district acted independently and was answerable only to the
President. Griffin B. Bell & Daniel J. Meador, Appointing United States
Attorneys, 9 J.L. & Pol. 247 (1993). In 1870, Congress situated the
office of United States Attorney in the Department of Justice under the
jurisdiction of the Attorney General. Id. at 248.
\7\ 28 U.S.C. Sec. 541(b) (2000).
\8\ Id.
\9\ 28 U.S.C. Sec. 541(c) (2000).
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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.\10\ In
conjunction with that process, Senators may play an influential
informal role in the nomination of United States Attorneys.\11\
Typically, a President, prior to nominating a United States
Attorney, consults with the Senators from the State where the
vacancy exists if they are members of the President's political
party.\12\ If neither Senator is a member of the President's
political party, then the President may consult with House
Members from that State in the President's political party, or
other party leaders in that State.\13\ Traditionally, the
President has usually accepted the nominee recommended by the
Senator or other official.\14\ This tradition, called
``Senatorial courtesy,'' serves as an additional, informal
check on the President's appointment power.\15\
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\10\ Wiener, supra note 4, at 397.
\11\ Id. at 393; Bell & Meador, supra note 6, at 249.
\12\ Id.
\13\ Wiener, supra note 4, at 394.
\14\ Id.
\15\ Id.
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UNITED STATES ATTORNEY VACANCIES AND INTERIM APPOINTMENTS
From the time of the Civil War until March 2006, the
Federal judiciary was empowered to fill temporary United States
Attorney vacancies.\16\ In 1966, that authority was codified in
section 546 of title 28 of the United States Code.\17\ Thus,
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
by a United States Attorney appointed by the President with the
advice and consent of the Senate.\18\
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\16\ Act of March 3, 1863, ch. 93, Sec. 2, 12 Stat. 768 (1863).
\17\ Pub. L. No. 89-554, Sec. 4(c), 80 Stat. 618 (1966).
\18\ Id.
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In response to a request by the Attorney General that its
office be vested with authority to appoint interim United
States Attorneys, Congress enacted former section 546(d) of
title 28 of the United States Code in 1986.\19\ 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.\20\ By retaining a role for the
district court 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 typically solicit the
opinion of the chief judge of the relevant district regarding
possible temporary appointments.\21\
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\19\ Pub. L. No. 99-646, Sec. 69, 100 Stat. 3616 (1986) (codified
as 28 U.S.C. Sec. 546(d) (2000), repealed by USA PATRIOT Improvement
and Reauthorization Act of 2005, Pub. L. No. 109-177, title V,
Sec. 502, 120 Stat. 246 (2006)).
\20\ Id.
\21\ Wiener, supra note 4, at 399 (citing interview with David
Margolis and Bernie Delia, Associate Deputy Attorneys General, in
Washington, D.C. (Dec. 28, 2000)).
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Twenty years after section 546(d) was enacted, the USA
PATRIOT Improvement and Reauthorization Act of 2005 removed the
court's role entirely on March 9, 2006.\22\ As amended, section
546(c) now provides 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 section 541 of this title.''
\23\
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\22\ USA PATRIOT Improvement and Reauthorization Act of 2005, Pub.
L. No. 109-177, tit. V, Sec. 502, 120 Stat. 246 (2006).
\23\ Id.
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The 2005 Act amended section 546 in two critical respects.
It not only removed district court judges from the interim
appointment process, vesting the Attorney General with the sole
authority; \24\ it also eliminated the 120-day limit on how
long an interim United States Attorney appointed by the
Attorney General could serve.\25\ As a result of the Act,
judicial input in the interim appointment process was
eliminated and, perhaps more importantly, it created a possible
loophole that could permit United States Attorneys appointed on
an interim basis to serve indefinitely without Senate
confirmation.
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\24\ Id.
\25\ Id.
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This provision was inserted quietly into the conference
report on the 2005 Act, without debate. The only available
explanation of the legislative intent of this amendment is one
sentence that appeared in the conference report statement of
managers: ``Section 502 [effecting the amendments to section
546] is a new section and addresses an inconsistency in the
appointment process of United States Attorneys.'' \26\
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\26\ H.R. Rep. No. 109-333, at 109 (2006).
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CONCERNS WITH CURRENT UNITED STATES ATTORNEY REMOVAL
AND REPLACEMENT PROCESS
Potential to Disrupt Office and Undermine Independence
Although a United States Attorney serves at the pleasure of
the President, his or her removal ``as a result of political
displeasure or for political reward . . . would undermine the
confidence of the Federal judiciary, Federal and local law
enforcement agencies, the public, and the thousands of
Assistant United States Attorneys working in those offices.''
\27\ As one former United States Attorney recently testified,
``Maintaining the prosecutorial independence of the United
States Attorneys . . . is vital to ensuring the fair and
impartial administration of justice in our Federal system.''
\28\
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\27\ H.R. 580, Restoring Checks and Balances in the Confirmation
Process of U.S. Attorneys: Hearing before the Subcomm. on Commercial
and Administrative Law of the H. Comm. on the Judiciary, 110th Cong.
(2007) (prepared statement of Atlee W. Wampler, III, President of the
National Association of Former United States Attorneys).
\28\ Preserving Prosecutorial Independence: Is the Department of
Justice Politicizing the Hiring and Firing of U.S. Attorneys?: Hearing
Before the S. Comm. on the Judiciary, 110th Cong. (2007) (prepared
statement of Mary Jo White, former U.S. Attorney for the Southern
District of New York).
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The former United States Attorney went on to note how
removing a United States Attorney disrupts the ongoing work of
that office:
Changing a United States Attorney invariably causes
disruption and loss of traction in cases and
investigations in a United States Attorney's Office.
This is especially so in sensitive or controversial
cases and investigations where the leadership and
independence of the United States Attorney are often
crucial to the successful pursuit of such matters,
especially in the face of criticism or political
backlash.\29\
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\29\ Id.
As another former United States Attorney put it, ``Sensitive
investigations and prosecutions, most especially those of
political or other public figures, should never be improperly
derailed by a change of administration in the United States
Attorney of a district.'' \30\
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\30\ H.R. 580, Restoring Checks and Balances in the Confirmation
Process of U.S. Attorneys: Hearing Before the Subcomm. on Commercial
and Administrative Law of the H. Comm. on the Judiciary, 110th Cong.
(2007) (prepared statement of John A. Smietanka, former United States
Attorney for the Western District of Michigan).
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A related concern is that an abrupt, unexplained removal of
a United States Attorney can adversely affect office morale,
causing ``profound uncertainty in the career staff of
assistants and staff.'' \31\ Professor Laurie Levenson
explained, ``It is deeply demoralizing for them to now see
capable leaders with proven track records of successful
prosecutions summarily dismissed and replaced by those who lack
the qualifications and professional backgrounds traditionally
expected of United States Attorneys.'' \32\
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\31\ Id.
\32\ Preserving Prosecutorial Independence: Is the Department of
Justice Politicizing the Hiring and Firing of U.S. Attorneys?: Hearing
Before the S. Comm. on the Judiciary, 110th Cong. (prepared statement
of Prof. Laurie L. Levenson, Loyola Law School).
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Bypassing the Requirement of Senatorial Advice and Consent
Based on its preliminary analysis of data obtained from the
Justice Department and secondary sources, the Congressional
Research Service (``CRS'') has made several significant
findings. First, it identified several instances where the
Attorney General made successive interim appointments pursuant
to section 546 of either the same or different individuals. For
example, one individual received a total of four successive
interim appointments. \33\
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\33\ H.R. 580, Restoring Checks and Balances in the Confirmation
Process of U.S. Attorneys: Hearing Before the Subcomm. on Commercial
and Administrative Law of the H. Comm. on the Judiciary, 110th Cong.
(2007) (prepared statement of T.J. Halstead, Legislative Attorney,
American Law Division, Congressional Research Service).
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Second, CRS identified at least 27 acting United States
Attorneys who were appointed pursuant to the Federal Vacancies
Reform Act of 1998 (Vacancies Act).\34\ With limited exception,
the Vacancies Act applies to Executive Branch officers whose
appointment is required to be made by the President with the
advice and consent of the Senate.\35\ When there is a vacancy
in such office, the Act permits an individual to be appointed
to temporarily fill the vacant position and such individual may
serve a maximum of 210 days.\36\ When the Act is used in
conjunction with successive appointments under section 546, the
possibility arises that the Attorney General could effectively
appoint an interim United States Attorney ``whereby the advice
and consent function of the Senate could be avoided to a
significant degree even under the prior version of Sec. 546.''
\37\
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\34\ Id.; Pub. L. No. 105-277, div. C, tit. 1, Sec. 151, 112 Stat.
2681, 2681-611 (1998) (codified at 5 U.S.C. Sec. Sec. 3345-49d (2000)).
\35\ 5 U.S.C. Sec. 3345 (2000).
\36\ 5 U.S.C. Sec. 3346 (2000). Section 3346 provides:
G(a) Except in the case of a vacancy caused by sickness, the person
serving as an acting officer as described under section 3345 may serve
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in the office--
G(1) for no longer than 210 days beginning on the date the vacancy
occurs; or
G(2) subject to subsection (b), once a first or second nomination for
the office is submitted to the Senate, from the date of such nomination
for the period that the nomination is pending in the Senate.
G(b)(1) If the first nomination for the office is rejected by the
Senate, withdrawn, or returned to the President by the Senate, the
person may continue to serve as the acting officer for no more than 210
days after the date of such rejection, withdrawal, or return.
G(2) Notwithstanding paragraph (1), if a second nomination for the
office is submitted to the Senate after the rejection, withdrawal, or
return of the first nomination, the person serving as the acting
officer may continue to serve--
(A) until the second nomination is confirmed; or
(B) for no more than 210 days after the second nomination
is rejected, withdrawn, or returned.
G(c) If a vacancy occurs during an adjournment of the Congress sine
die, the 210-day period under subsection (a) shall begin on the date
that the Senate first reconvenes.
Id.
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\37\ H.R. 580, Restoring Checks and Balances in the Confirmation
Process of U.S. Attorneys: Hearing Before the Subcomm. on Commercial
and Administrative Law of the H. Comm. on the Judiciary, 110th Cong.
(2007) (prepared statement of T.J. Halstead, Legislative Attorney,
American Law Division, Congressional Research Service). CRS observed
that Congress, if it so desired, could mandate that section 546 be the
``exclusive method for making interim appointments to U.S. Attorney
positions.'' Id.
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RESIGNATIONS OF UNITED STATES ATTORNEYS SINCE MARCH 2006
Over the last few months, reports began to appear in the
news media that various United States Attorneys had been asked
to resign by the Justice Department.\38\ Based on these
reports, it now appears 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:
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\38\ See, e.g., David Johnston, Dismissed U.S. Attorneys Received
Strong Evaluations, N.Y. Times, Feb. 25, 2007, at A19; Dan Eggen,
Justice Department Fires 8th U.S. Attorney; Dispute Over Death Penalty
Cited, Wash. Post, Feb. 24, 2007, at A2; Dan Eggen, Fired Prosecutor
Disputes Justice Dept. Allegation; He Calls Testimony ``Unfair'';
Meanwhile, Senate Panel Votes to Limit Attorney General's Power, Wash.
Post, Feb. 9, 2007, at A6; Marisa Taylor & Greg Gordon, U.S. Attorneys'
Selection Is Questioned, Seattle Times, Jan. 28, 2007, at A8 (noting
that the Attorney General ``is transforming the ranks of the nation's
top Federal prosecutors by firing some and appointing conservative
loyalists from the Bush Administration's inner circle who critics say
are unlikely to buck Washington, D.C.''); Onell R. Soto & Kelly
Thornton, Lam to Resign Feb. 15 as Speculation Swirls; Some See
Politics at Play in Ouster of U.S. Attorney, San Diego Union-Trib.,
Jan. 17, 2007, at A1.
LH.E. Cummins, III, United States Attorney for
the Eastern District of Arkansas; \39\
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\39\ Dan Eggen, Prosecutor Firings Not Political, Gonzales Says;
Attorney General Acknowledges, Defends Actions, Wash. Post, Jan. 19,
2007, at A2; David Johnston, Justice Dept. Names New Prosecutors,
Forcing Some Out, N.Y. Times, Jan.17, 2007, at A17; Linda Satter,
Prosecutor Post Is Filled in Recess, Ark. Democrat Gazette, Dec.16,
2006, at A1.
LJohn McKay, United States Attorney for the
Western District of Washington; \40\
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\40\ Dan Eggen, Prosecutor Firings Not Political, Gonzales Says;
Attorney General Acknowledges, Defends Actions, Wash. Post, Jan. 19,
2007, at A2; Paul Shukovsky, U.S. Attorney Who Led Fight Against
Terrorism Steps Down, Seattle Post-Intelligencer, Jan. 15, 2006, at B1;
Christine Clarridge, U.S. Attorney McKay To Quit Prosecutor Job at End
of Next Month, Seattle Times, Dec. 16, 2006, at A1 (noting that Mr.
McKay was described by his peers as a ``rock-star attorney'' and his
firing came as a surprise to other U.S. Attorneys).
LDavid C. Iglesias, United States Attorney for
the District of New Mexico; \41\
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\41\ David Johnston, Justice Dept. Names New Prosecutors, Forcing
Some Out, N.Y. Times, Jan. 17, 2007, at A17; Mike Gallagher, U.S.
Attorney Plans To Resign, David Iglesias will leave the position 2
years early, Albuquerque J., Dec. 19, 2006, at A1.
LPaul K. Charlton, United States Attorney for
the District of Arizona; \42\
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\42\ Dennis Wagner, U.S. Attorney Charlton Leaving Post for Law
Firm, Ariz. Rep., Dec. 20, 2006, at A12; Press Release, U.S. Dep't of
Justice, U.S. Attorney Paul Charlton to Step Down at End of January,
Dec. 19, 2006, available at http://www.usdoj.gov/usao/az/press--
releases/2006/2006-270(Charlton).pdf.
LCarol C. Lam, United States Attorney for the
Southern District of California; \43\
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\43\ Kelly Thornton & Onell R. Soto, Lam stays silent about losing
job; Law enforcement defends her record, San Diego Union-Trib., Jan.
13, 2007, at B1; Kelly Thornton & Onell R. Soto, Lam is asked to step
down; job performance said to be behind White House firing, San Diego
Union-Trib., Jan. 12, 2007, at A1.
LDaniel Bogden, United States Attorney for the
District of Nevada; \44\
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\44\ Sam Skolnik, U.S. attorney leaves office with no word on
successor, Las Vegas Sun, Mar. 1, 2007; Francis McCabe, Nevada U.S.
Attorney Given Walking Papers, Las Vegas Rev. J., Jan. 15, 2007, at A1.
LKevin Ryan, United States Attorney for the
Northern District of California; \45\ and
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\45\ Bob Egelko, U.S. attorney was forced out, Feinstein says, S.F.
Chron., Jan. 19, 2007, at B1; Bob Egelko, U.S. Attorney for Bay Area
resigns; Ryan investigated stock options fraud, violent gang crime and
steroids in sports, faced criticism for his management style, S.F.
Chron., Jan. 17, 2007, at A1; Evan Perez, Attorney Vacancies Spark
Concerns, Wall St. J., Jan. 16, 2007, at A4.
LMargaret M. Chiara, United States Attorney
for the Western District of Michigan.\46\
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\46\ Dan Eggen, Justice Department Fires 8th U.S. Attorney; Dispute
Over Death Penalty Cited, Wash. Post, Feb. 24, 2007, at A2; Nate Reens,
Judge Says U.S. Attorney Ousted; She's Said to be Part of a Wider
Shake-up, Grand Rapids Press, Feb. 23, 2007, at A1.
Six of these former United States Attorneys testified at a
hearing Before the Subcommittee on Commercial and
Administrative Law on March 6, 2007. Although the Justice
Department had claimed that they were removed for
``performance-related reasons,'' most testified that the
Justice Department had not given them any such reason.\47\ In
fact, two of them said it was not until the hearing itself that
the Department offered any performance-related reason to
explain their removal.\48\
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\47\ H.R. 580, Restoring Checks and Balances in the Confirmation
Process of U.S. Attorneys: Hearing Before the Subcomm. on Commercial
and Administrative Law of the H. Comm. on the Judiciary, 110th Cong.
(2007) (prepared statement of Carol C. Lam et al.) (tr. at 80). The six
former United States Attorneys who testified at this hearing were Carol
C. Lam, former United States Attorney for the Southern District of
California; David C. Iglesias, former United States Attorney for the
District of New Mexico; H.E. Cummins, III, former United States
Attorney for the Eastern District of Arkansas; John McKay, former
United States Attorney for the Western District of Washington; Daniel
Bogden, United States Attorney for the District of Nevada; and Paul K.
Charlton, United States Attorney for the District of Arizona.
\48\ Id. (testimony of Daniel Bogden and David C. Iglesias ) (tr.
at 83, 94).
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Furthermore, suggestions by the Department that poor
performance had anything to do with their removal appeared to
be contradicted by the glowing assessments their offices had
consistently received during their tenure in the Department's
periodic evaluations, the so-called ``EARS reports.'' \49\ And
there were indications that other motivations were actually at
play.
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\49\ David Johnston, Dismissed U.S. Attorneys Praised in
Evaluations, N.Y. Times, Feb. 25, 2007, available at http://
www.nytimes.com/2007/02/25/washington/25lawyers.html?ex=
1330059600&en=ac6dec5b36df31f3&ei=5 088&partner=rssnyt&emc=rss
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Messrs. Charlton and Bogden said they had been advised at
one point, by then Acting Assistant Attorney General William
Mercer, that they were being terminated to, in essence, make
way for other Republicans to burnish their resumes.\50\ Messrs.
Iglesias and McKay testified about inappropriate inquiries they
had received from Members of Congress and their staff
concerning matters under investigation, which they surmised may
have led to their forced resignations.\51\
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\50\ H.R. 580, Restoring Checks and Balances in the Confirmation
Process of U.S. Attorneys: Hearing Before the Subcomm. on Commercial
and Administrative Law of the H. Comm. on the Judiciary, 110th Cong.
(2007) (testimony of Paul K. Charlton and Daniel Bogden ) (tr. at 127-
28, 134-35).
\51\ Id. (testimony of David C. Iglesias and John McKay ) (tr. at
95-98, 100, 106-08, 129-30, 133).
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Internal Justice Department documents recently uncovered
describe the Department's efforts to utilize section 546, as
amended by the USA PATRIOT Improvement and Reauthorization Act
of 2005, to bypass Senate confirmation. With respect to Mr.
Cummins' resignation, for example, these documents detail
efforts by the White House and Justice Department staff to have
Tim Griffin, a former Republican National Committee researcher,
named as the interim United States Attorney for the Eastern
District of Arkansas.\52\ These documents indicate that Justice
officials sought to bypass the two Democratic senators in
Arkansas, who normally would have had input into this
appointment.\53\ To this end, Attorney General Chief of Staff
D. Kyle Sampson suggested that the Attorney General exercise
his newfound appointment authority pursuant to section 546, as
amended by the USA PATRIOT Improvement and Reauthorization Act
of 2005, to put Mr. Griffin in place until the end of President
George W. Bush's term. He noted, ``[I]f we don't ever exercise
it then what's the point of having it?'' \54\ He further
explained, ``By not going the PAS route [the Senatorial advice
and consent requirement for the appointment of a permanent
United States Attorney pursuant to section 541 of title 28 of
the United States Code], 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.'' \55\
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\52\ See, e.g., E-mail from Monica Goodling, Senior Counsel to the
Attorney General and White House Liaison, U.S. Dep't of Justice, to
Kyle Sampson, Chief of Staff to the Attorney General, U.S. Dep't of
Justice (Aug. 18, 2006, 5:27 PM) (with attached prior e-mail exchanges)
(on file with the H. Comm. on the Judiciary).
\53\ See, e.g., E-mail from Kyle Sampson, Chief of Staff to the
Attorney General, U.S. Dep't of Justice, to Monica Goodling, Senior
Counsel to the Attorney General and White House Liaison, U.S. Dep't of
Justice (Dec. 18, 2006, 6:27 PM) (with attached prior e-mail exchanges)
(on file with the H. Comm. on the Judiciary). Mr. Sampson advises:
I think we should gum this to death: ask the Senators to
give Tim [Griffin] 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,
evaluate the recommendations, interview their candidates,
and otherwise run out the clock. All of this should be done
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in ``good faith,'' of course.
Id.
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\54\ Id.
\55\ E-mail from Kyle Sampson, Chief of Staff to the Attorney
General, U.S. Dep't of Justice, to Harriet Miers, White House Counsel
(Sept. 13, 2006, 4:25 PM) (on file with the H. Comm. on the Judiciary).
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This recent spate of apparently politically motivated
firings appears to be without precedent. Based on its
preliminary analysis of available data for the period of 1993
through February 23, 2007, CRS was unable to identify ``a
similar pattern of contemporaneous departures that have been
reported to stem from politically motivated dismissals of U.S.
Attorneys.'' \56\
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\56\ H.R. 580, Restoring Checks and Balances in the Confirmation
Process of U.S. Attorneys: Hearing Before the Subcomm. on Commercial
and Administrative Law of the H. Comm. on the Judiciary, 110th Cong.
(2007) (prepared statement of T.J. Halstead, Legislative Attorney,
American Law Division, Congressional Research Service).
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Hearings
The Committee's Subcommittee on Commercial and
Administrative Law held 1 day of hearings on H.R. 580 on March
6, 2007. Testimony was received from William E. Moschella,
Principal Associate Deputy Attorney General, United States
Department of Justice; Carol C. Lam, former United States
Attorney for the Southern District of California; David C.
Iglesias, former United States Attorney for the District of New
Mexico; H.E. Cummins, III, former United States Attorney for
the Eastern District of Arkansas; John McKay, former United
States Attorney for the Western District of Washington; Daniel
Bogden, United States Attorney for the District of Nevada; Paul
K. Charlton, United States Attorney for the District of
Arizona; Representative Darrell Issa (R-CA); former
Representative Asa Hutchinson (R-AR); John A. Smietanka, a
former United States Attorney for the Western District of
Michigan; George J. Terwilliger, III, former Deputy Attorney
General, United States Department of Justice; T.J. Halstead,
Legislative Attorney, American Law Division, Congressional
Research Service; and Atlee W. Wampler, III, President of the
National Association of Former United States Attorneys.
Committee Consideration
On March 15, 2007, the Committee met in open session and
ordered the bill H.R. 580 favorably reported with an amendment,
by voice vote, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that there
were no recorded votes during the Committee's consideration of
H.R. 580.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 580, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, March 19, 2007.
Hon. John Conyers, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: H.R. 580, a bill 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.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Daniel
Hoople, who can be reached at 226-2860.
Sincerely,
Peter R. Orszag,
Director.
Enclosure
cc:
Honorable Lamar S. Smith.
Ranking Member
H.R. 580--A bill 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
CBO estimates that enacting H.R. 580 would have no
significant impact on the Federal budget.
Under current law, the Attorney General may appoint an
interim United States attorney to serve for an indefinite
period of time until a vacancy is filled by the President with
the advice and consent of the United States Senate. H.R. 580
would limit such interim appointments to a maximum of 120 days.
Upon expiration of any interim appointment made by the Attorney
General, the district court would be granted authority to
appoint a United States attorney to serve until the vacancy is
filled.
H.R. 580 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of State, local, or tribal
governments.
On February 13, 2007, CBO transmitted a cost estimate for
S. 214, the Preserving United States Attorneys Independence Act
of 2007, as ordered reported by the Senate Committee on the
Judiciary on February 8, 2007. The two bills are similar, and
our cost estimates are the same.
The CBO staff contact for this estimate is Daniel Hoople,
who can be reached at 226-2860. This estimate was approved by
Peter H. Fontaine, Deputy Assistant Director for Budget
Analysis.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
580, as amended, is intended to clarify that section 546 of
title 28 of the United States Code is the exclusive means for
appointing an individual to temporarily preform the functions
of a United States Attorney for a district in which the office
of United States Attorney is vacant. It specifies that such
individual may serve until the earlier of either: (1) the
qualification of a United States Attorney appointed by the
President pursuant to section 541 of title 28 of the United
States Code; or (2) the expiration of 120 days after
appointment by the Attorney General of the individual as
interim United States Attorney. Upon the expiration of 120
days, and if no permanent United States Attorney has been
appointed with Senate confirmation, the district court for such
district may appoint a United States Attorney to serve until
the vacancy is filled.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article 2, section 2, clause 2 of the
Constitution.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 580 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Sec. 1. Interim Appointment of United States Attorneys.
This section revises section 28 U.S.C. Sec. 546(c) to provide
that an individual appointed as a United States Attorney in a
district in which the office of the United States Attorney is
vacant may serve until the earlier of either: (1) the
qualification of a United States Attorney appointed by the
President pursuant to 28 U.S.C. Sec. 541; or (2) the expiration
of 120 days after appointment by the Attorney General of an
interim United States Attorney.
In addition, section 1 of the bill amends adds a new
subsection (d) to section 546. Subsection (d) provides that 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. Pursuant to section 1 of the
bill, the court must file the order of appointment with the
clerk of the court.
Section 1 further amends section 546 to add a new
subsection (e). Subsection (e) provides that section 546 is the
exclusive means for appointing an individual 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. Subsection (a) of this section
provides that the amendments made by H.R. 580 shall take effect
on the date of enactment of the bill. Subsection (b) of this
section provides that any individual serving as a United States
Attorney on the day before the date of the bill's enactment who
was appointed pursuant to section 546 may serve until the
earlier of: (1) the qualification of a United States Attorney
for that district appointed by the President pursuant to
section 541; or (2) 120 days after the date of enactment of
H.R. 580. If an interim appointment expires after such 120-day
period, the district court for the district concerned may
appoint a United States Attorney for that district pursuant to
section 546(d), as added by H.R. 580.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
SECTION 546 OF TITLE 28, UNITED STATES CODE
Sec. 546. Vacancies
(a) * * *
* * * * * * *
[(c) 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
section 541 of this title.]
(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.
Supplemental Views
Section 502 of the USA PATRIOT Improvement and
Reauthorization Act of 2005 \1\ gave the Attorney General the
authority to fill U.S. Attorney vacancies on an indefinite,
interim basis, pending confirmation of new nominees by the
Senate. Previously, the Attorney General could appoint interim
U.S. Attorneys only for 120 days, after which interim
appointment authority passed to the district courts until new
nominees were confirmed.
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\1\ Pub. L. No. 109-177 (2006).
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The recent dismissals of eight U.S. Attorneys have
triggered controversy over both the grounds for the dismissals
and the Attorney General's open-ended interim appointments
authority. Allegations that these dismissals were motivated by
partisan politics, not performance, have been voiced by Members
of Congress and in the press. These allegations range from
accusations that the Administration has tried to strike back at
U.S. Attorneys pursuing public corruption cases to complaints
that positions were being cleared for political favorites, such
as a former White House staff member. There also have been
allegations that the dismissals were made so that interim
appointees, who under the new law could avoid the need for
Senate confirmation, could serve until the end of the
Administration.
In the wake of these allegations, there have been calls
both for oversight and for legislative action. H.R. 580,
sponsored by Rep. Berman, would reinstitute the system which
preceded the Patriot Act's reauthorization. The Subcommittee on
Commercial and Administrative Law held an extensive hearing on
Tuesday, March 6, 2007, into both H.R. 580 and the firings of
the dismissed U.S. Attorneys. In light of recent emails made
available by the Department of Justice, it appears likely that
the Subcommittee will conduct more oversight on this issue in
the coming weeks. The Minority remains committed to working
with the Majority to ensure that all the facts of this case are
made known to the American people.
Much of the factual record remains undeveloped at this
time. As recently as the day of the mark-up, news stories
proffered new facts relating to the provision of the Patriot
Act at issue. The fact that the record is in flux makes it
difficult for the Minority to know what changes to the law, if
any, are necessary in this instance.
If changes are necessary, we would like to have worked with
the majority in a bipartisan fashion to improve existing law.
We believe that, permitted time to work together, we might have
found a better solution. The rush to consider this legislation,
however, has not allowed us to do so.
Under regular order, this bill would have been referred to
the Subcommittee on Commercial and Administrative Law for mark-
up. There, as the facts were sifted with more deliberation, we
might have been able to avoid language that would have called
for judges to appoint the very Executive Branch prosecutors
practicing before them--judicial appointments that raise legal
and practical concerns that we believe would have merited more
consideration.
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 all the more a matter of
first importance to the nation. Their appointment and dismissal
is serious business.
Instead of rushing this legislation, we should have given
it the time it deserves. In fact, Mr. Berman acknowledged at
the hearing that ``there may be reasons not'' to enact his
bill. Mr. Nadler, at the Committee's mark-up, suggested that
Congress could reinstate the interim appointment authority at
some future date for some other President. Likewise, the
Majority's witnesses suggested that the more important issue
here concerned expediting Presidential appointment and Senate
confirmation of U.S. Attorneys. All of the witnesses
acknowledged that the President could lawfully respond to the
judicial appointments authorized by this bill by simply
terminating the court-appointed interim U.S. Attorney, thus
allowing the Attorney General to make a new 120-day
appointment.\2\ Further, the Majority's witnesses acknowledged
that having a court appoint an interim U.S. Attorney does
nothing to ensure that the President nominates and the Senate
confirms a person to that position in an expeditious manner.
The Majority's witness, John Smietanka, cited the example of
Puerto Rico, where former President Clinton allowed a court-
appointed interim U.S. Attorney to sit for over six years
without ever nominating a permanent replacement.\3\ These
issues were not adequately addressed in the Majority's rush to
mark-up this bill.
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\2\ See, e.g., United States v. Hilario, 218 F.3d 19, 27 (1st Cir.
2000) (``[I]nsofar as interim United States Attorney are concerned, the
Executive Branch holds all the trump cards. For one thing, the
President may override the judges' decision and remove an interim
United States Attorney.'').
\3\ See id. at 21.
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The practical concerns with this bill were highlighted by a
last minute amendment offered by Rep. Sanchez. That amendment,
which was adopted by the Majority, rendered unavailable the
provisions of the Vacancy Reform Act \4\ to allow for the
temporary filling of U.S. Attorneys vacancies with all
otherwise available individuals.
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\4\ 5 U.S.C. Sec. 3345(a)(1).
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This amendment would be an unwise departure from the rules
applicable to all other similar positions in the government,
would hinder the availability of all qualified individuals with
needed background checks and security clearances to fill these
vital positions, and would still further create an anomaly for
this one set of positions, those of U.S. Attorneys. Nothing was
developed in the record of the hearing to show that such a
departure from the norm was necessary.
We are deeply disappointed that the opportunity to consider
this bill in a more deliberate fashion was not afforded. Had it
been afforded to us, this bill might have been improved in
important ways or proven to be unnecessary.
Lamar Smith.
Steve Chabot.
Daniel E. Lungren.
Chris Cannon.
Steve King.
Tom Feeney.
Trent Franks.
Additional Supplemental Views
Many Members in the majority are clamoring for heads to
roll, alleging the Bush Administration fired eight United
States Attorneys using a little-noticed provision that was
slipped into the PATRIOT Act Reauthorization Act in the middle
of the night. Nothing could be further from the truth.
The provision permitting the Attorney General to fill U.S.
Attorneys positions on an indefinite interim basis, pending
confirmation of new nominees by the Senate, was added during
conference negotiations between the House and Senate. When
Justice Department officials approached Congress with the U.S.
Attorney provision, both Republican and Democratic staffers
were present, including staffers from then-Ranking Democrat on
the Senate Judiciary Committee Patrick Leahy, and Senator
Kennedy.
Under prior law, for almost two decades, the Attorney
General was authorized to appoint an interim United States
Attorney for 120 days. If a permanent replacement was not
nominated by the President and confirmed by the Senate at the
end of 120 days, the chief judge of the federal district in
which the vacancy occurred would appoint an interim prosecutor
to serve until a permanent replacement was confirmed.
The USA PATRIOT Improvement and Reauthorization Act of 2005
amended this provision to give the Attorney General the sole
authority to appoint interim U.S. Attorneys to serve
indefinitely when vacancies occurred.
The President's constitutionally assigned duties include
complete control over executive branch appointments, and that
the inexorable command of Article II is clear and definite: the
executive power must be vested in the President of the United
States. Let me be clear, this provision was not added to the
PATRIOT Act to be abused by the Justice Department. Rather, it
was added to correct a flaw in the law that permitted the
judicial branch to appoint U.S. Attorneys.
In Buckley v. Valeo, the Supreme Court determined that the
appointments clause permitted only the President, with the
advice and consent of the Senate, to appoint officers to
exercise executive authority. H.R. 580 flies in the face of
this ruling.
I will continue to work with my colleagues across the aisle
to learn all the facts pertaining to the dismissal of the U.S.
Attorneys. If we learn that some officials in the
Administration acted improperly, there should be consequences
for such behavior.
However, regardless of how the facts may play out in this
circumstance, this Committee should not be dictating how
executive branch officials are appointed, and the judiciary
should not exercise executive powers.
F. James Sensenbrenner, Jr.