[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\
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    \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).
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    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:
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    \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\
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    \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.
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    \5\Pub. L. No. 94-503; 28 U.S.C. Sec. 532 note (Oct. 15, 1976).
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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\
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    \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.
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    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\
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    \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.
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    \9\Id. at 1-2.
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    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\
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    \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).
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    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\
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    \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\
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    \12\New York Times, ``Bin Laden's No. 2, Zawahiri, Takes Control of 
Al Qaeda,'' June 15, 2011.
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                               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\
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    \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).
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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\
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    \14\U.S. Const., art II, Sec. 2.
    \15\See Buckley v. Valeo, 424 U.S. 1, 126 (1976).
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    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\
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    \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.
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    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\
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    \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).
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    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\
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    \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).
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    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\
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    \27\Constitutionality of Legislation Extending the Term of the FBI 
Director, __ U.S. Op. Off. Legal Counsel __, 2-3 (June 20, 2011).
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    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\
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    \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.
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    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\
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    \32\Constitutionality of Legislation Extending the Terms of Office 
of United States Parole Commissioners, 18 U.S. Op. Off. Legal Counsel 
166, 171 (1994).
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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.
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    \33\See, e.g., 41 U.S. Op. Atty. Gen. 88, 90 (1951).
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    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\
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    \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).
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    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.
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    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\
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    \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.'')
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    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\
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    \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''.
        
        
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