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February 23, 2007

Exhibit A for RTBA

This is a follow-up last month’s post on U.S. Attorney appointments. Last week, Dianne Feinstein spoke on the Senate floor about the issue. An excerpt

Unbeknownst to any of us, in March 2006, in the PATRIOT Act reauthorization, a provision was included that allows the Attorney General to appoint an interim U.S. attorney for an indefinite period of time. You might ask, what is wrong with that? What is wrong is that it avoids Senate confirmation. Prior to this change, the law stated that the Attorney General could appoint interim U.S. attorneys but only for 120 days. After that time, the authority to appoint an interim U.S. attorney would fall to the district court. Why? Because that provided an incentive to the administration to present a U.S. attorney nominee to the Senate for hearing, for questions, for review, and for a vote on confirmation.

This structure created in 2006 was relatively new. It was enacted during the Reagan administration in a broader bill by Strom Thurmond that was described as a technical corrections bill on criminal procedures. Before that, from 1898 until the Thurmond bill was enacted, district courts held the sole authority to appoint interim U.S. attorneys. That existed for almost 100 years. It was critical then, as it is now, that all U.S. attorneys receive Senate confirmation. By having the district courts make that interim appointment, it assured that the confirmation would take place.

No one expected the rash of firings from the Department of Justice. I first learned about the Department’s actions early in January. At that time I learned that main Justice in Washington had placed calls to at least seven, possibly more, U.S. attorneys and asked them to resign by a date specific in January. I was also told that the intention was to bring in outside lawyers from main Justice or from elsewhere to take over these posts and to serve without confirmation for the remainder of the Bush presidency.

The Department of Justice has now acknowledged in public and at a hearing that such calls were made to “less than 10” U.S. attorneys asking them to step aside. We also know that prior to this action, there were already 13 U.S. attorney vacancies pending, with only two nominations presented by the administration to the Judiciary Committee. This means that if you add the 7 to 10 U.S. attorneys who were asked to resign to the current 11 vacancies without nominees, there could be between 18 and 21 U.S. attorney positions throughout the country that the Attorney General could fill without securing Senate confirmation. That is over 20 percent of U.S. attorneys nationally that could be filled for the remaining 2 years of the Bush presidency without going through Senate confirmation.

This new provision slipped into the PATRIOT Act would also allow the next President to put in place all 93 U.S. attorneys and let them serve the entire 4-year term without the benefit of confirmation. This change was a mistake. I suspect the amendment to the PATRIOT Act came from the Justice Department, was quietly put in the bill, and none of us at the time were the wiser.[emphasis added]

So, the Bush Administration “duped” Congress into consenting to an Attorney-packing scheme which allows Presidents to appoint friends and political cronies to the crucial position of U.S. Attorney, without Senate confirmation. Let’s assume almost no one in Congress knew about this provision, or noticed it. Whose fault is that? Ten Senators and 171 Representatives voted against the Patriot Act Reauthorization. Is it their fault this repugnant provision was inserted in the Patriot Act? Or is it the fault of those who, like Sen. Feinstein, didn’t know what was in the bill but voted for it anyway?

If the Read the Bills Act was in force, each member of Congress who voted for the Patriot Act Reauthorization would have signed a statement swearing that they knew and understood what was in the bill. Moreover, the bill would have been published online seven days before the vote was taken, so that interested parties could call attention to the offending provisions.

In any case, it is long past time for members of Congress to take responsibility for their votes. If Sen. Feinstein is appalled at a provision of a bill she voted for, she shouldn’t point fingers. She should come out and say, “I screwed up, and I’m sorry.”

To Sen. Feinstein’s credit, however, she has done something to fix the mess. She sponsored S. 214, the Preserving United States Attorney Independence Act of 2007, and it is now on the Senate Legislative Calendar.

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