    [Senate Report 112-23]
    [From the U.S. Government Publishing Office]

                                                            Calendar No. 76
    112th Congress                                                   Report
                                     SENATE
     1st Session                                                     112-23

    ======================================================================

      A BILL TO EXTEND THE TERM OF THE INCUMBENT DIRECTOR OF THE FEDERAL
                            BUREAU OF INVESTIGATION

                                    _______

        June 21 (legislative day, June 16), 2011.--Ordered to be printed

                                    _______

                Mr. Leahy, from the Committee on the Judiciary,
                            submitted the following

                                  R E P O R T

                             [To accompany S. 1103]

          [Including cost estimate of the Congressional Budget Office]

        The Committee on the Judiciary, to which was referred the
    bill (S. 1103), to extend the term of the incumbent Director of
    the Federal Bureau of Investigation (FBI), having considered
    the same, reports favorably thereon, with an amendment, and
    recommends that the bill, as amended, do pass.

                                    CONTENTS

                                                                       Page
      I. Background and Purpose of the Bill...............................1
     II. History of the Bill and Committee Consideration.................11
    III. Section-by-Section Summary of the Bill..........................12
     IV. Congressional Budget Office Cost Estimate.......................13
      V. Regulatory Impact Evaluation....................................13
     VI. Conclusion......................................................14
    VII. Changes to Existing Law Made by the Bill, as Reported...........14
    VIII.Appendix........................................................16

                     I. Background and Purpose of the Bill

        On May 12, 2011, the President announced that he was
    seeking a two-year extension of the term of FBI Director Robert
    S. Mueller, III. The President requested that Congress provide
    a limited exception to the statutory limit of 10 years on the
    service of the FBI Director.

                                 A. BACKGROUND

    1. Director Mueller's Initial Nomination Process

        Robert Mueller was nominated by President George W. Bush on
    July 18, 2001. The Judiciary Committee received Mr. Mueller's
    paperwork on July 24, 2001. The Committee held a hearing and
    favorably reported the nomination to the Senate on August 2,
    2001. The Senate confirmed him that same day by a vote of 98-0.
    President Bush signed his appointment to a 10-year term on
    August 4, 2001.
        Director Mueller was well qualified for the position of FBI
    Director at the time he was first nominated. Director Mueller
    served as the United States Attorney in both Massachusetts and
    Northern California. In all, he spent 12 years in United States
    Attorney's Offices. In his capacity as a Federal prosecutor, he
    handled cases on major financial fraud, terrorism, public
    corruption, narcotics conspiracies, and international money
    laundering. Director Mueller also served as the Assistant
    Attorney General for the Criminal Division at the Justice
    Department, and as the acting Deputy Attorney General at the
    beginning of the George W. Bush administration.
        Director Mueller served for three years in the United
    States Marine Corps. He led a rifle platoon in Vietnam and
    earned a Bronze Star, two Navy Commendation Medals, the Purple
    Heart, and the Vietnamese Cross of Gallantry. Director Mueller
    graduated from Princeton University, earned a master's degree
    in International Relations at New York University, and a law
    degree from the University of Virginia Law School.
        After a medical procedure in August 2001, Director Mueller
    assumed leadership of the FBI in early September 2001. A week
    later, the United States was attacked on September 11, 2001.
    Director Mueller has served our nation for the 10 years
    following
    9/11 and has helped trasnform the agency into an effective
    counterterrorism organization.

    2. Legislative History of the Ten-Year Term Limit of the FBI Director

        The FBI was formed in 1908 as a Bureau within the
    Department of Justice. The leader of the FBI has been titled
    ``Director'' since 1919, and has answered directly to the
    Attorney General since the 1920s. In 1924, J. Edgar Hoover was
    selected as FBI Director not by the President, but by Attorney
    General Harlan Fiske Stone. Born in 1895, Mr. Hoover served as
    Director until his death in 1972, at the age of 77, a total of
    48 years.
        The Senate twice passed bills to require a presidential
    appointment of the FBI Director,\1\ but those bills did not
    pass in the House of Representatives. In 1968, as part of the
    Omnibus Crime Control Act and Safe Streets Act of 1968,
    Congress finally mandated that the FBI Director be appointed by
    the President and confirmed by the Senate.\2\
    ---------------------------------------------------------------------------
        \1\S. 603, 88th Cong., 1st Session (1963); and S. 313, 89th Cong.,
    1st Session (1965).
        \2\Omnibus Crime Control Act and Safe Streets Act of 1968, Pub. L.
    No. 90-3351 (Jun. 19, 1968).
    ---------------------------------------------------------------------------
        In a 1974 report on a bill to provide for a 10-year term of
    the Director, the Senate Judiciary Committee discussed the need
    for the FBI Director to maintain a proper balance between
    responsiveness to the Executive Branch and independence from
    any unreasonable requests made by superior officials.\3\ The
    report continued:
    ---------------------------------------------------------------------------
        \3\``Ten-Year Term for the FBI Director,'' U.S. Senate Committee on
    the Judiciary, S. Rep. No. 93-1213 (93rd Cong., 2nd Session), at 2.

            No institutional arrangement can guarantee with
            certainty that any official will exercise governmental
            authority with integrity and good judgment.
            Nevertheless, there are especially sensitive positions
            which require the greatest care on the part of Congress
            in creating an environment for the responsive use of
            power. It is the great value of the FBI as a criminal
            investigative agency, as well as its dangerous
            potential for infringing individual rights and serving
            partisan or personal ambitions, that makes the office
            of the FBI Director unique.\4\
    ---------------------------------------------------------------------------
        \4\Id., at 2-3.

        In 1976, Congress passed a law limiting the service of an
    FBI Director to a single term of 10 years.\5\ Senator Robert
    Byrd of West Virginia was the lead sponsor of this legislation.
    He had initially proposed a 10-year term with the possibility
    of re-appointment for a second 10-year term. After considering
    possible alternatives, including a 10-year term with the
    possibility of a five-year renewal term, Senator Byrd
    ultimately decided that 10 years was sufficient.
    ---------------------------------------------------------------------------
        \5\Pub. L. No. 94-503; 28 U.S.C. Sec. 532 note (Oct. 15, 1976).
    ---------------------------------------------------------------------------

    3. The President's Request for a Two-Year Extension

        President Obama explained in a May 12, 2011, statement:
    ``Given the ongoing threats facing the United States, as well
    as the leadership transitions at other agencies like the
    Defense Department and Central Intelligence Agency, I believe
    continuity and stability at the FBI is critical at this
    time.''\6\ The President asked Congress ``to join together in
    extending that leadership for the sake of our nation's safety
    and security.''\7\
    ---------------------------------------------------------------------------
        \6\Statement of the White House, ``President Obama Proposes
    Extending Term for FBI Director Robert Mueller,'' May 12, 2011,
    available at http://www.whitehouse.gov/the-press-office/2011/05/12/
    president-obama-proposes-extending-term-fbi-director-robert-mueller.
        \7\Id.
    ---------------------------------------------------------------------------
        The President's request was made at a time of considerable
    change in leadership in key national security positions of the
    U.S. Government. Secretary of Defense Robert M. Gates announced
    his retirement, and Leon Panetta, who was then the Director of
    Central Intelligence, was nominated to replace him. General
    David Petraeus was nominated to succeed Mr. Panetta as the
    Director of Central Intelligence. On May 30, 2011, the
    President nominated Army Gen. Martin Dempsey to be Chairman of
    the Joint Chiefs of Staff. The Director of the National
    Counterterrorism Center, Michael E. Leiter, announced his
    intention to step down in July 2011. In addition, the
    nominations of two critical nominees to the Department of
    Justice with national security responsibilities remain pending:
    James Cole, nominated to serve as Deputy Attorney General, and
    Lisa Monaco, nominated to serve as Assistant Attorney General
    for the National Security Division.

    4. The Current Threat Environment and Need for Continuity in Leadership
            of the FBI

        On May 12, 2011, the President stated:

            Bob [Mueller] transformed the FBI after September 11,
            2001 into a pre-eminent counterterrorism agency, he has
            shown extraordinary leadership and effectiveness at
            protecting our country every day since. He has
            impeccable law enforcement and national security
            credentials, a relentless commitment to the rule of
            law, unquestionable integrity and independence, and a
            steady hand that has guided the Bureau as it confronts
            our most serious threats. I am grateful for his
            leadership, and ask Democrats and Republicans in
            Congress to join together in extending that leadership
            for the sake of our nation's safety and security.

        The threats against the United States are expected to
    increase around the tenth anniversary of the September 11, 2001
    attacks. Indeed, evidence collected at the compound in
    Abbottabad, Pakistan, that served as bin Laden's hideout
    demonstrated that al Qaeda was planning to make attempts on
    American soil in connection with the tenth anniversary of the
    September 11, 2001 attacks. Accordingly, anxiety has heightened
    in light of the successful operation against Osama bin Laden on
    May 1, 2011, and recent threats of retaliation against the
    United States.
        The Committee heard testimony about these threats from
    Director Mueller and others. In the June 8, 2011, hearing on
    the requested extension of his term, Director Mueller
    testified:

            The FBI has never faced a more complex threat
            environment than it does today. Over the past year, we
            have seen an extraordinary array of national security
            and criminal threats from terrorism, espionage, cyber
            attacks, and traditional crimes. These threats have
            ranged from attempts by al Qa'ida and its affiliates to
            place bombs on airplanes bound for the United States to
            lone actors seeking to detonate [improvised explosive
            devices] in public squares and subways intent on mass
            murder.\8\
    ---------------------------------------------------------------------------
        \8\The President's Request to Extend the Service of Director
    Mueller of the FBI until 2013: Hearing before the S. Comm. on the
    Judiciary, 112th Cong. (June 8, 2011) (statement of Robert S. Mueller,
    III, Director of the FBI, at 1).

        Director Mueller also spoke of the threat posed by radical
    ``adversaries, like Anwar Alaqui, who are engaged in efforts to
    radicalize people in the United States to commit acts of
    terrorism.''\9\ In addition to terrorist threats, Director
    Mueller testified to threats from organized crime, drug
    cartels, fraud, and a host of others.
    ---------------------------------------------------------------------------
        \9\Id. at 1-2.
    ---------------------------------------------------------------------------
        At the same hearing, former Deputy Attorney General James
    B. Comey echoed Director Mueller's assessment. Mr. Comey stated
    that, ``the combination of the successful raid on Bin Laden's
    compound and the approaching 10th anniversary of 9/11 creates
    an unusual threat environment.''\10\
    ---------------------------------------------------------------------------
        \10\The President's Request to Extend the Service of Director
    Mueller of the FBI until 2013: Hearing before the S. Comm. on the
    Judiciary, 112th Cong. (June 8, 2011) (statement of James B. Comey,
    former Deputy Attorney General, at 2).
    ---------------------------------------------------------------------------
        Mr. Comey also discussed the value in keeping Director
    Mueller in place as Director at this particularly challenging
    moment in time. He stated:

            There is never a great time to change Directors.
            Something is always lost in a transition, as a new
            leader comes to know the threats, and understand the
            capabilities of those around him. But there are bad,
            and even potentially dangerous, times to change
            Directors, and this is one of them.\11\
    ---------------------------------------------------------------------------
        \11\Id. at 1.

        While the exact plans of al Qaeda have not been revealed,
    intervening events suggest that the threat from the terrorist
    group has not subsided. On June 15, 2011, the general command
    of al Qaeda, announced that Sheikh Ayman al-Zawahiri would take
    control of the leadership of the organization. Al-Zawahiri was
    indicted in the 1998 embassy bombings in East Africa and has
    called for attacks on American targets.\12\
    ---------------------------------------------------------------------------
        \12\New York Times, ``Bin Laden's No. 2, Zawahiri, Takes Control of
    Al Qaeda,'' June 15, 2011.
    ---------------------------------------------------------------------------

                                   B. PURPOSE

    1. Congressional Response to the President's Request

        The Senate responded to the President's request to extend
    the term of Director Mueller on May 26, 2011, by introducing a
    narrowly drafted bipartisan bill, S. 1103, that would authorize
    an extension of the 10-year term of the FBI Director. The bill
    was cosponsored by the Chairman and Ranking Member of the
    Senate Committee on the Judiciary and the Chairman and Vice
    Chairman of the Senate Select Committee on Intelligence. House
    Judiciary Committee Chairman Lamar Smith (R-TX) and Senate
    Minority Leader Mitch McConnell (R-KY) have both publicly
    expressed support for President Obama's decision to extend
    Director Mueller's term for an additional two years.
        Senator Grassley, the Judiciary Committee's Ranking Member,
    requested a full Committee hearing on the matter on behalf of
    certain members of the minority of the Judiciary Committee, and
    the Chairman scheduled such a hearing on June 8, 2011.

    2. The Reported Bill Does Not Represent any Intent to Affect the
            President's Plenary Removal Authority

        In response to some concerns voiced in that hearing,
    Chairman Leahy prepared a substitute amendment that emphasized
    in Findings that the bill was a direct response to the
    President's request, which the Congress found to be appropriate
    in light of the need for continuity and stability at the FBI in
    the face of ongoing threats to the United States. The
    substitute was adopted by the Judiciary Committee and reported
    favorably to the Senate. The bill reported by the Judiciary
    Committee does not diminish in any manner the President's
    authority to remove a Director of the FBI. The bill makes clear
    that the incumbent FBI Director may continue to serve only at
    the request of the President. Current law and policy on that
    matter will in no way be affected if S. 1103 is enacted into
    law. The sitting FBI Director agrees. In the June 8, 2011,
    hearing, Senator Grassley asked Director Mueller, ``As director
    of the FBI with a fixed term, under what circumstances can the
    president remove you?'' Director Mueller responded, ``I think I
    serve at the pleasure of the president.''\13\
    ---------------------------------------------------------------------------
        \13\The President's Request to Extend the Service of Director
    Mueller of the FBI until 2013: Hearing before the S. Comm. on the
    Judiciary, 112th Cong. (June 8, 2011) (testimony of Robert S. Mueller,
    III).
    ---------------------------------------------------------------------------

    3. The Reported Bill Represents a One-Time Exception to the Ten-Year
            Statutory Term Limit

        The substitute makes clear in the Findings that the
    President has requested only a one-time exception to the 10-
    year term limit, and that such an extension is based upon the
    exceptional circumstances facing the Nation at this time. The
    findings state explicitly that the bill is not intended to
    create a precedent. That intent has also been stated by the
    bill's sponsors. By allowing the term of the Director to be
    extended this once, from 10 years to 12, the bill would have no
    effect on the nature of the fixed term appointment.

    4. The Reported Bill Is Not Intended to Assert Any Congressional Power
            to Appoint Executive Officers

        In this bill, Congress asserts no authority to appoint
    officials in violation of the President's appointment
    authority. The findings and the operative text of the bill both
    state clearly that the extension of the Director's term is
    authorized by Congress at the request of the President. The
    bill also makes clear that such authorization is directly
    linked to the President's request and the justifications
    provided for that request. It is effective in authorizing an
    extended term, but implemented as the President determines.

                       C. CONSTITUTIONAL CONCERNS RAISED

        During the course of the Committee's consideration of this
    bill, some raised concerns that the legislation could be
    vulnerable to constitutional challenges and protracted
    litigation. The notion that enactment of this legislation would
    somehow impinge upon the authority of the President under the
    Appointments Clause to choose his own nominee to be Director of
    the FBI is incorrect. Given that this legislation was expressly
    requested by the President in order that the President's choice
    for FBI Director--Robert S. Mueller III--could continue in
    office, and that it does nothing to diminish the President's
    authority to remove the FBI Director at will, such concerns
    lack merit.

    1. Constitutional and Legal Framework

        The Appointments Clause states that the President ``shall
    nominate, and by and with the Advice and Consent of the Senate,
    shall appoint Ambassadors, other public Ministers and Consuls,
    Judges of the supreme Court and all other Officers of the
    United States, whose Appointments are not herein otherwise
    provided for, and which shall be established by Law.''\14\
    Accordingly, the Supreme Court has held that the Appointments
    Clause prohibits Congress from independently exercising the
    power to appoint ``Officers of the United States.''\15\
    ---------------------------------------------------------------------------
        \14\U.S. Const., art II, Sec. 2.
        \15\See Buckley v. Valeo, 424 U.S. 1, 126 (1976).
    ---------------------------------------------------------------------------
        The Appointments Clause is not offended, however, when
    Congress merely acts to extend the term of service of an
    executive branch officer who serves at the pleasure of the
    President, particularly when Congress acts at the specific
    request of the President. This basic principle has been
    reaffirmed on several occasions by the Department of Justice
    through legal opinions dating back six decades.\16\ In 1951,
    for example, the Attorney General's office issued an opinion
    affirming the constitutionality of an amendment that extended
    the terms of members of the Displaced Persons Commission, which
    Congress had created through statute in 1948.\17\ Writing in
    response to an inquiry by the President whether the amendment
    constituted ``an infringement on the President's constitutional
    power of appointment,'' the opinion concluded that the
    legislation presented ``no constitutional difficulties,'' and
    instead was ``an example of the Congress and the Executive
    acting in cooperation.''\18\ Central to this conclusion was the
    fact that nothing in the legislation required the President to
    continue the incumbent commissioners in office. Accordingly,
    the opinion affirmed ``the power of the Congress to extend the
    terms of offices which it has created, subject, of course, to
    the President's constitutional power of appointment and
    removal.''\19\
    ---------------------------------------------------------------------------
        \16\See Attorney General and Office of Legal Counsel opinions in
    Appendix.
        \17\See 41 U.S. Op. Atty. Gen. 88 (1951).
        \18\Id. at 90 (internal citations omitted).
        \19\Id. The opinion continued by citing several precedents of this
    type of ``joint action by the Executive and the Congress.'' 41 U.S. Op.
    Atty. Gen. 88, 90 (1951). These precedents included the legislative
    extensions of the terms of office for five Commissioners of the Atomic
    Energy Commission in 1948, as well as the 1948 extension of the terms
    of office for directors of the Reconstruction Finance Corporation. Id.
    at 91.
    ---------------------------------------------------------------------------
        The Office of Legal Counsel of the Department of Justice
    issued a similar opinion in 1994, this time assessing the
    constitutionality of a legislative extension of the terms of
    members of the United States Parole Commission.\20\ In its
    opinion, the Office of Legal Counsel acknowledged the potential
    tension that arises when Congress extends the term of an office
    and seeks to apply the extension to an incumbent
    officeholder.\21\ The opinion noted that a law extending the
    tenure of an officer whom the President may remove only ``for
    cause'' was a ``classic example'' of legislation that runs
    afoul of the Appointments Clause.\22\ Conversely, when Congress
    passes legislation ``that extends the term of an office,
    including its incumbent, the holder of which is removable at
    will,'' the opinion noted the longstanding position of the
    Office of Legal Counsel and the Department of Justice that
    ``there is no violation of the Appointments Clause, for here
    the President remains free to remove the officer and embark on
    the process of appointing a successor--the only impediment
    being the constitutionally sanctioned one of Senate
    confirmation.''\23\
    ---------------------------------------------------------------------------
        \20\See Constitutionality of Legislation Extending the Terms of
    Office of United States Parole Commissioners, 18 U.S. Op. Off. Legal
    Counsel 166 (1994).
        \21\Id. at 168.
        \22\Id. (emphasis added).
        \23\Id. (emphasis added). The 1994 OLC opinion expressly rejected
    and withdrew a prior 1987 opinion that reached a different conclusion
    regarding the constitutionality of similar legislative extensions.
    Citing the 1987 opinion's lack of credible reasoning and the fact that
    the 1987 opinion ran counter to a long-standing OLC position, the 1994
    OLC opinion deemed the 1987 opinion as ``irredeemably unpersuasive.''
    18 U.S. Op. Off. Legal Counsel 166 note 3 (1994).
    ---------------------------------------------------------------------------
        This conclusion was reiterated by the Office of Legal
    Counsel in a 1996 memorandum providing an overview of
    constitutional separation of powers issues.\24\ In the 1996
    memorandum, the Office of Legal Counsel reaffirmed the approach
    taken in its 1951 opinion regarding members of the Displaced
    Persons Commission, stating that ``the extension of tenure of
    officers serving at will raises no Appointments Clause
    problem.''\25\ Indeed, the OLC memorandum labeled as
    ``constitutionally harmless'' legislation that extends the term
    of an officer who is subject to removal at will.\26\
    ---------------------------------------------------------------------------
        \24\See The Constitutional Separation of Powers Between the
    President and Congress, 20 U.S. Op. Off. Legal Counsel 124 (1996).
        \25\Id.
        \26\Id. Even when dealing with legislative extensions of the
    tenures of officers removable only for cause, the 1996 OLC memorandum
    urged a ``functional analysis'' that assessed whether the legislation
    had ``the practical effect of frustrating the President's appointing
    authority or amount[ed] to a congressional appointment.'' 20 U.S. Op.
    Off. Legal Counsel 124 (1996). Referencing a 1994 OLC opinion
    concerning the extension of terms of members of the United States
    Sentencing Commission, the 1996 OLC memorandum noted that even where a
    statute extends the terms of officers removable only for cause, the
    statute might still not function to violate the President's appointment
    power. Id. (citing Whether Members of the Sentencing Commission Who
    Were Appointed Prior to the Enactment of a Holdover Statute May
    Exercise Holdover Rights Pursuant to the Statute, 18 Op. Off. Legal
    Counsel 33 (1994)). Notably, the 1994 OLC opinion regarding the
    Sentencing Commission noted that the effect of that legislation could
    actually have been to augment the President's power by giving him ``the
    option of retaining the holdover officer until he chooses to nominate a
    successor.'' 18 Op. Off. Legal Counsel 33 (1994) (emphasis added).
    ---------------------------------------------------------------------------
        On June 20, 2011, the Office of Legal Counsel issued a
    memorandum opinion expressly reaffirming the ``longstanding''
    view that ``Congress, by extending an incumbent officer's term,
    does not displace and take over the President's appointment
    authority, as long as the President remains free to remove the
    officer at will and make another appointment.''\27\
    ---------------------------------------------------------------------------
        \27\Constitutionality of Legislation Extending the Term of the FBI
    Director, __ U.S. Op. Off. Legal Counsel __, 2-3 (June 20, 2011).
    ---------------------------------------------------------------------------
        Much of this constitutional analysis and historical
    precedent has been summarized by the Congressional Research
    Service (CRS) in a report titled FBI Directorship: History and
    Congressional Action, included in the Appendix to this
    report.\28\ The CRS report details the historical ``precedent
    of not formally re-appointing an individual whose term of
    office is to be extended.''\29\ In addition, the CRS report
    notes that ``[c]onstitutional analysis of an extension of [an
    officer's] term depends on how the extension reads and whether
    the President would retain the plenary authority to remove
    [that officer].''\30\ Significantly, in its review of relevant
    case law and other legal authorities, CRS was apparently unable
    to identify a single case, opinion, or other legal authority to
    support the notion that a legislative extension such as S. 1103
    might violate the Appointments Clause. On the other hand, CRS
    identified the case of In re Benny, in which the United States
    Court of Appeals for the Ninth Circuit concluded: ``Congress
    may prospectively alter terms of office without running afoul
    of the Appointments Clause,'' adding that this power to extend
    terms of office ``can be implied from its power to add to the
    duties that are germane to its original duties.''\31\
    ---------------------------------------------------------------------------
        \28\Congressional Research Service, FBI Directorship: History and
    Congressional Action, CRS Report R41850, June 7, 2011, (hereinafter
    ``CRS Report'').
        \29\Id., at 5-6, 11.
        \30\Id., at 7.
        \31\In re Benny, 812 F.2d 1133, 1141 (9th Cir. 1987). Some have
    cited to Judge Norris's concurring opinion in In re Benny as support
    for the argument that legislation like S. 1103 violates the
    Appointments Clause. The facts of In re Benny are distinguishable from
    the instant case in important respects. First, in the case of the
    bankruptcy judges at issue in In re Benny, the President did not--as he
    has with Director Mueller--specifically request that the judges
    continue serving. Second, Judge Norris himself noted that bankruptcy
    judges under the relevant statute could only be removed for
    ``incompetence, misconduct, neglect of duty or physical or mental
    disability.'' 812 F.2d 1133, 1143 note 5. Accordingly, given that the
    FBI Director is unquestionably serving the President at will, reliance
    on Judge Norris's concurring opinion is misplaced.
    ---------------------------------------------------------------------------
        Taking into account the various opinions from the
    Department of Justice spanning 60 years, the operative
    constitutional and legal premise remains clear: ``Legislation
    extending the term of an officer who serves at will does not
    violate the Appointments Clause.''\32\
    ---------------------------------------------------------------------------
        \32\Constitutionality of Legislation Extending the Terms of Office
    of United States Parole Commissioners, 18 U.S. Op. Off. Legal Counsel
    166, 171 (1994).
    ---------------------------------------------------------------------------

    2. Constitutionality of S. 1103--No Appointments Clause Concern

        The bill to extend the term of the incumbent FBI Director
    by two years, S. 1103, is constitutionally sound and an example
    of the type of ``joint action by the Executive and the
    Congress'' deemed legitimate by the Office of Legal Counsel on
    a number of prior occasions.\33\ The President has expressly
    requested that Congress enact legislation enabling the
    incumbent FBI Director to serve an additional two years, and
    the bill does just that without impinging in any way on the
    President's plenary authority to remove the FBI Director at
    will. In light of the legal opinions from the Department of
    Justice dating back six decades, as well as the relevant case
    law, the constitutionality of the bill cannot seriously be
    questioned.
    ---------------------------------------------------------------------------
        \33\See, e.g., 41 U.S. Op. Atty. Gen. 88, 90 (1951).
    ---------------------------------------------------------------------------
        As an initial matter, the bill makes clear that the
    incumbent FBI Director may continue to serve only at the
    request of the President, and does nothing to diminish in any
    way the President's removal authority under the Constitution.
    As Director Mueller himself testified at the June 8, 2011,
    hearing, his service as FBI Director continues only ``at the
    pleasure of the President.''\34\ That will remain true after
    enactment of this legislation. The CRS Report referenced above
    also concluded that ``the President may remove the Director of
    the FBI at will,'' and cited the firing of FBI Director William
    Sessions in July 1993 by President Clinton as an example.\35\
    The Office of Legal Counsel recently reaffirmed this conclusion
    unequivocally, noting that ``the FBI Director is removable at
    the will of the President.''\36\
    ---------------------------------------------------------------------------
        \34\Oral testimony of Robert S. Mueller, III, June 8, 2011, Hearing
    before the Senate Judiciary Committee.
        \35\CRS Report at 9.
        \36\Constitutionality of Legislation Extending the Term of the FBI
    Director, __ U.S. Op. Off. Legal Counsel __, 3 (June 20, 2011)
    (internal citation omitted).
    ---------------------------------------------------------------------------
        Perhaps most instructive on this point is the legislative
    history of the statute establishing the 10-year term limit on
    the FBI Director. In a 1974 committee report on the FBI
    Director term limit bill pending at the time (S. 2106), the
    Senate Judiciary Committee concluded: ``The bill does not place
    any limit on the formal power of the President to remove the
    FBI Director from office,'' and that the ``Director would be
    subject to dismissal by the President, as are all purely
    executive officers.''\37\ Moreover, since enactment of the 10-
    year term limit on the FBI Director in 1976, there have been no
    laws enacted or cases decided imposing any type of removal
    restrictions on the President with regard to the FBI Director,
    such that the functional analysis described in Morrison v.
    Olson, would be required. Put simply, the President can decide
    to replace the FBI Director at any time, for any reason.
    ---------------------------------------------------------------------------
        \37\``Ten-Year Term for the FBI Director,'' U.S. Senate Committee
    on the Judiciary, S. Rep. No. 93-1213 (93rd Cong., 2nd Session), at 6.
    ---------------------------------------------------------------------------
        In light of the President's plenary authority to remove the
    incumbent FBI Director, no credible argument can be made that
    Congress, through this legislation, might somehow infringe upon
    the President's constitutional appointment power. To the
    contrary, this bill responds directly to the President's
    request for legislation that would allow him to continue
    exercising his appointment power; in other words, to keep as
    FBI Director the individual that the President wants to serve
    in that position. Common sense and a plain reading of the
    relevant legal precedents demonstrates that an Appointments
    Clause problem arises when Congress acts in a way that imposes
    its will upon the Executive, installing or keeping in office an
    individual whom the President did not choose and cannot remove.
    That is not the case here. The President has chosen Director
    Mueller to lead the FBI for the next two years, but the
    President can also decide to remove him at any time. The
    removal authority is a prerogative of the Executive, and
    nothing in this bill changes that. Through enactment of S.
    1103, Congress would simply provide the statutory exemption
    needed for Director Mueller to continue his public service as
    head of the FBI.\38\
    ---------------------------------------------------------------------------
        \38\See Constitutionality of Legislation Extending the Term of the
    FBI Director, __ U.S. Op. Off. Legal Counsel __, 4 (June 20, 2011)
    (``Director Mueller holds an office, and if his term is extended by
    Congress, he will continue to hold that office by virtue of an
    appointment by President Bush, with the advice and consent of the
    Senate, in strict conformity with the requirements of the Appointments
    Clause.'')
    ---------------------------------------------------------------------------
        As specifically set forth in the text of S. 1103, Congress
    cannot by itself cause Director Mueller to begin another two
    years as head of the FBI, just as Congress cannot in any way
    guarantee that Director Mueller will remain in office for the
    entire two years. Instead, Section 2(a) of S. 1103 provides
    that the incumbent FBI Director may continue in office, but
    only at the request of the President. Similarly, the bill
    imposes no limit on the authority of the President to remove
    the current incumbent FBI Director at any time. Thus, while
    Congress may provide the statutory mechanism that allows
    Director Mueller to continue serving past August 3, 2011, his
    continued service is contingent upon a request by the
    President, as well as his prerogative to choose a successor at
    any time. As such, the provisions of this bill do not in any
    way usurp the President's appointing authority.\39\
    ---------------------------------------------------------------------------
        \39\The testimony of Professor John Harrison fails to account for
    these facts or considerations, nor does Professor Harrison
    affirmatively cite a single authority supporting his views. The
    President's Request to Extend the Service of Director Mueller of the
    FBI until 2013: Hearing before the S. Comm. on the Judiciary, 112th
    Cong. (June 8, 2011) (statement of John Harrison, Professor of Law,
    University of Virginia). Indeed, the June 20, 2011 memorandum opinion
    by the Office of Legal Counsel specifically addresses and rejects the
    arguments made by Professor Harrison. See Constitutionality of
    Legislation Extending the Term of the FBI Director, __ U.S. Op. Off.
    Legal Counsel __, 4-6 (June 20, 2011).
    ---------------------------------------------------------------------------

    3. Unfounded Fears of Litigation

        Without citation to a single court opinion that has found
    legislation similar to S. 1103 to be of any constitutional
    concern, opponents of the bill argue that enactment of the bill
    would give rise to a spate of litigation that could mire the
    FBI in protracted lawsuits and cast uncertainty on the
    legitimacy of the FBI Director's actions during his extended
    term. These concerns are unfounded.
        Congress should not pursue legislation that would unduly
    hamper the law enforcement, counterterrorism, and intelligence
    functions of the FBI. During the June 8, 2011 hearing, however,
    when Director Mueller was asked by Senator Coburn to comment on
    the possible risk of constitutional challenges as a result of
    this bill, he responded as follows:

            I have heard nothing in my discussions with the
            Department [of Justice] or otherwise of a
            constitutional issue that would make that a problem
            down the road. If that were a substantial problem,
            quite obviously, then I would be concerned. But I have
            not heard that to be the case.\40\
    ---------------------------------------------------------------------------
        \40\The President's Request to Extend the Service of Director
    Mueller of the FBI until 2013: Hearing before the S. Comm. on the
    Judiciary, 112th Cong. (June 8, 2011) (testimony of Robert S. Mueller,
    III).

        Aside from speculation based on unfounded constitutional
    arguments, there has been nothing presented to the Committee
    that would suggest any operational concerns with the bill. The
    FBI has presented no operational concerns.
        The lack of any real litigation risk is underscored by the
    fact that the Director of the FBI has only limited direct
    involvement with the routine investigatory and surveillance
    functions of the Bureau. Those functions are typically carried
    out by Special Agents who perform their duties in their own
    capacity as duly sworn law enforcement agents with arrest
    authority. Accordingly, the risk of litigation from defendants
    in criminal cases and targets of national security
    investigations is virtually nonexistent, given that the
    Director is not typically the affiant on search warrants,
    wiretap applications, or criminal complaints, nor does he
    typically provide supervisory authorization for routine
    investigatory techniques. Similarly, unlike Federal prosecutors
    in the U.S. Attorney's Offices or elsewhere in the Department
    of Justice, the FBI Director does not have any direct
    involvement with the prosecution of defendants. Thus, concerns
    about possible litigation and the effect on the ability of the
    FBI to function are purely speculative and unfounded.

              II. History of the Bill and Committee Consideration

                          A. INTRODUCTION OF THE BILL

        A bill to extend the term of the incumbent Director of the
    Federal Bureau of Investigation, S. 1103, was introduced on May
    26, 2011, by Chairman Leahy, Senator Grassley, Senator
    Feinstein, and Senator Chambliss.

                                   B. HEARING

        On June 8, 2011, the Committee convened a hearing titled
    ``The President's Request to Extend the Service of Director
    Mueller of the FBI until 2013.'' Director Mueller testified on
    the first panel, describing threats to the United States and
    his efforts over the past 10 years to reform the FBI.
        A second panel of witnesses included James B. Comey, former
    Deputy Attorney General, now with Bridgewater Associates, who
    spoke of the need for continuity of leadership at the FBI in
    light of the continuing threats facing the United States. Mr.
    Comey also praised Director Mueller's leadership of the agency
    and his achievements in transforming the FBI from a domestic
    criminal investigative agency into one that is equally devoted
    to intelligence and the prevention of terrorist attacks.
        The second panel also included testimony from William Van
    Alstyne, Lee Professor of Law at the Marshall-Wythe Law School,
    who stated that the bill, S. 1103, is ``clearly
    constitutionally sufficient.''\41\ Finally, the Committee heard
    testimony from John C. Harrison, Professor of Law, at the
    University of Virginia.
    ---------------------------------------------------------------------------
        \41\The President's Request to Extend the Service of Director
    Mueller of the FBI until 2013: Hearing before the S. Comm. on the
    Judiciary, 112th Cong. (June 8, 2011) (statement of William Van
    Alstyne, Lee Professor of Law, Marshall-Wythe Law School, at 1).
    ---------------------------------------------------------------------------

                             C. LETTERS OF SUPPORT

        The Committee received letters in support of the extension
    of Director Mueller's term from the National Fraternal Order of
    Police, the National Association of Police Organizations, and
    the International Association of Chiefs of Police. See
    Appendix.

                         D. EXECUTIVE BUSINESS MEETING

        The bill, S. 1103, was placed on the agenda for an
    Executive Business Meeting on June 9, 2011, but was held over
    for one week. It was considered by the Committee on June 16,
    2011.
        Chairman Leahy offered a substitute amendment to S. 1103,
    which contained findings and an extension of the incumbent
    Director's term from 10 years to 12 years. The amendment was
    accepted.
        Senator Coburn offered a substitute amendment that would
    have authorized an extension of two years of the 10-year term,
    but would have required the Director to be nominated to serve
    the additional two years. The Coburn amendment was cosponsored
    by Senators Hatch, Graham, Cornyn, and Lee.
        After debate, Chairman Leahy moved to table the Coburn
    amendment. The motion to table was accepted by a rollcall vote.
    The vote record is as follows:

    Tally: 11 Yeas, 7 Nays

    Yeas (11): Kohl (D-WI), Feinstein (D-CA), Schumer (D-NY),
    Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
    MN), Coons (D-DE), Blumenthal (D-CT), Grassley (R-IA), Leahy
    (D-VT).

    Nays (7): Hatch (R-UT), Kyl (R-AZ), Sessions (R-AL), Graham (R-
    SC), Cornyn (R-TX), Lee (R-UT), Coburn (R-OK).

        The Committee then voted to report favorably S. 1103. The
    vote record is as follows:

    Tally: 11 Yeas, 7 Nays

    Yeas (11): Kohl (D-WI), Feinstein (D-CA), Schumer (D-NY),
    Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
    MN), Coons (D-DE), Blumenthal (D-CT), Grassley (R-IA), Leahy
    (D-VT).

    Nays (7): Hatch (R-UT), Kyl (R-AZ), Sessions (R-AL), Graham (R-
    SC), Cornyn (R-TX), Lee (R-UT), Coburn (R-OK).

                  III. Section-by-Section Summary of the Bill

    Section 1. Findings

        This section finds that the President requested that
    Congress extend the term of the FBI Director to maintain
    continuity of leadership at the FBI during a time of
    extraordinary threat to the United States. This section also
    finds that Congress intends the extension to be a one-time
    exception to the 10-year statutory limit on the term of his
    position.

    Section 2. Extension of the Term of the Incumbent Director of the
            Federal Bureau of Investigation

        This section modifies the Omnibus Crime Control and Safe
    Streets Act of 1968 (28 U.S.C. 532 note) to allow a one-time
    statutory extension of the 10-year term of the current Director
    of the FBI at the date of enactment at the request of the
    President. The change would allow the incumbent Director of the
    FBI to serve an additional two years until August 3, 2013.

                 IV. Congressional Budget Office Cost Estimate

        The Committee sets forth, with respect to the bill, S.
    1103, the following estimate and comparison prepared by the
    Director of the Congressional Budget Office under section 402
    of the Congressional Budget Act of 1974:

                                                         June 17, 2011.
    Hon. Patrick J. Leahy,
    Chairman, Committee on the Judiciary,
    U.S. Senate, Washington, DC.
        Dear Mr. Chairman: The Congressional Budget Office has
    prepared the enclosed cost estimate for S. 1103, a bill to
    extend the term of the incumbent Director of the Federal Bureau
    of Investigation.
        If you wish further details on this estimate, we will be
    pleased to provide them. The CBO staff contact is Mark
    Grabowicz.
                Sincerely,
                                                  Douglas W. Elmendorf.
        Enclosure.

    S. 1103--A bill to extend the term of the incumbent Director of the
            Federal Bureau of Investigation

        S. 1103 would extend the term of the current director of
    the Federal Bureau of Investigation by two years. Under current
    law, the term of the director will expire in August. CBO
    estimates that implementing this bill would have no significant
    cost to the federal government. Enacting S. 1103 would not
    affect direct spending or revenues; therefore, pay-as-you-go
    procedures do not apply.
        S. 1103 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.
        The CBO staff contact for this estimate is Mark Grabowicz.
    The estimate was approved by Theresa Gullo, Deputy Assistant
    Director for Budget Analysis.

                         V. Regulatory Impact Statement

        In compliance with rule XXVI of the Standing Rules of the
    Senate, the Committee finds that under S. 1103, as reported, no
    substantial regulatory impact will be incurred by implementing
    the provisions of this legislation.

                                 VI. Conclusion

        A bill to extend the term of the incumbent Director of the
    Federal Bureau of Investigation, S. 1103, was reported
    favorably to the Senate from the Committee on the Judiciary.
    The bill provides, at the request of the President, a one-time
    exception to the statutory limit on the 10-year term of the FBI
    Director. The bill will allow the incumbent Director to serve
    an additional two years, until 2013, and is not intended to
    create a precedent. Because of leadership transitions of
    critical national security positions at Federal agencies and
    the need for stability and continuity at the FBI, the Committee
    recommends swift action on S. 1103 as reported.

           VII. Changes to Existing Law Made by the Bill, as Reported

        In compliance with paragraph 12 of rule XXVI of the
    Standing Rules of the Senate, changes in existing law made by
    S. 1103, as reported, are shown as follows (existing law
    proposed to be omitted is enclosed in black brackets, new
    matter is printed in italic, and existing law in which no
    change is proposed is shown in roman):

                               UNITED STATES CODE

    TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE

               *       *       *       *       *       *       *

    PART II--DEPARTMENT OF JUSTICE

               *       *       *       *       *       *       *

    SECTION 532. DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION.

        The Attorney General may appoint a Director of the Federal
    Bureau of Investigation. The Director of the Federal Bureau of
    Investigation is the head of the Federal Bureau of
    Investigation.
        Note:
        Confirmation and Compensation of Director; Term of Service
        (a) Effective as of the day following the date on which the
    present incumbent in the office of Director ceases to serve as
    such, the Director of the Federal Bureau of Investigation shall
    be appointed by the President, by and with the advice and
    consent of the Senate, and shall receive compensation at the
    rate prescribed for level II of the Federal Executive Salary
    Schedule [section 5313 of Title 5, Government Organization and
    Employees].
        (b) Effective with respect to any individual appointment by
    the President, by and with the advice and consent of the
    Senate, after June 1, 1973, the term of service of the Director
    of the Federal Bureau of Investigation shall be ten years. A
    Director may not serve more than one ten-year term. The
    provisions of subsections (a) through (c) of section 8335 of
    title 5, United States Code [section 8335(a) through (c) of
    Title 5], shall apply to any individual appointed under this
    section.
        (c) With respect to the individual who is the incumbent in
    the office of the Director of the Federal Bureau of
    Investigation on the date of enactment of this subsection,
    subsection (b) shall be applied--
              (1) in the first sentence, by substituting ``12
            years'' for ``ten years''; and
              (2) in the second sentence, by substituting ``12-year
            term'' for ``ten-year term''.