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“PRESERVING UNITED STATES ATTORNEY INDEPENDENCE ACT OF 2007” mentioning the U.S. Dept. of Justice was published in the House of Representatives section on pages H5553-H5556 on May 22, 2007.
The publication is reproduced in full below:
PRESERVING UNITED STATES ATTORNEY INDEPENDENCE ACT OF 2007
Mr. CONYERS. Mr. Speaker, I move to suspend the rules and pass the Senate bill (S. 214) to amend chapter 35 of title 28, United States Code, to preserve the independence of United States attorneys.
The Clerk read the title of the Senate bill.
The text of the Senate bill is as follows:
S. 214
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Preserving United States Attorney Independence Act of 2007''.
SEC. 2. VACANCIES.
Section 546 of title 28, United States Code, is amended by striking subsection (c) and inserting the following:
``(c) A person appointed as United States attorney under this section may serve until the earlier of--
``(1) the qualification of a United States attorney for such district appointed by the President under section 541 of this title; or
``(2) the expiration of 120 days after appointment by the Attorney General under this section.
``(d) If an appointment expires under subsection (c)(2), the district court for such district may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court.''.
SEC. 3. APPLICABILITY.
(a) In General.--The amendments made by this Act shall take effect on the date of enactment of this Act.
(b) Application.--
(1) In general.--Any person serving as a United States attorney on the day before the date of enactment of this Act who was appointed under section 546 of title 28, United States Code, may serve until the earlier of--
(A) the qualification of a United States attorney for such district appointed by the President under section 541 of that title; or
(B) 120 days after the date of enactment of this Act.
(2) Expired appointments.--If an appointment expires under paragraph (1), the district court for that district may appoint a United States attorney for that district under section 546(d) of title 28, United States Code, as added by this Act.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from Michigan (Mr. Conyers) and the gentleman from Florida (Mr. Keller) each will control 20 minutes.
The Chair recognizes the gentleman from Michigan.
General Leave
Mr. CONYERS. Mr. Speaker, I ask unanimous consent to revise and extend my remarks and to give all Members 5 legislative days to include extraneous material on the bill under consideration.
The SPEAKER pro tempore. Is there objection to the request of the gentleman from Michigan?
There was no objection.
Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I would like to describe this measure, Senate bill 214, as an important one that will restore historical checks and balances to the process by which interim U.S. attorneys are appointed. It will repair a breach in the law that has been a major contributing factor to the recent termination of at least nine talented and experienced United States attorneys and their replacement with interim appointments.
The full circumstances surrounding these terminations are still coming to light. It is a process being given much attention by the Committee on the Judiciary. But much of the information is well known, and is also considerably troubling. One U.S. attorney was fired to make way for a political operative who endeared himself to Mr. Karl Rove doing opposition research in the Republican National Committee. Others were apparently fired because they were not sufficiently partisan in the way they used these powers to investigate and prosecute alleged voting fraud. Now, I don't need to tell anybody in this body how important voting is to the democratic process.
These reports are particularly troubling because of the awesome power the United States attorneys, 93 of them in total, are entrusted with. They seek convictions. They negotiate plea agreements. They can send citizens to prison for years. They can tarnish reputations. They can destroy careers with the mere disclosure that a person is under criminal investigation. We, in this country, must have full confidence that these powers are exercised with complete integrity and free from improper political influence. Unfortunately, sometimes this is not the case.
These troubling circumstances that have been revealed were made possible by an obscure provision, quietly and secretly slipped into the PATRIOT reauthorization conference report in March of last year at the behest of the Justice Department's top political appointments, to enable them to appoint interim temporary U.S. attorneys without the customary safeguard of Senate confirmation.
Mr. Speaker, what this measure does is restore the checks and balances that have historically provided a critical safeguard against politicization of the Department of Justice and the United States attorneys, limiting the Attorney General's interim appointments to 120 days only, then allowing the district court for that district to appoint a U.S. attorney until the vacancy is filled, with Senate confirmation required, as historically has been the case.
Now, Members of the House, we have already passed similar legislation. While I would prefer to see our version enacted into law, we are taking up the Senate-passed version in order to expedite the enactment of this important step in restoring legal safeguards against the abuse of executive power to politicize the Federal prosecutorial function in the Department of Justice.
I wanted to single out my colleague from California, Howard Berman, a senior member of the committee, for his role in fashioning not only the original version, but the one that we have before you to agree upon.
Mr. Speaker, at this point, I would reserve the balance of my time.
Mr. KELLER of Florida. Mr. Speaker, I yield myself as much time as I may consume.
Mr. Speaker, prior to 1986, the district court appointed interim U.S. attorneys to fill vacancies until a replacement could be nominated by the President and confirmed by the Senate. In 1986, the process was changed to authorize the Attorney General to appoint an interim U.S. attorney for 120 days. After 120 days, the district court would appoint an interim to serve until the Senate confirmed a permanent replacement.
Last year, Congress addressed concerns that allowing the judiciary to appoint the prosecutors before their court created a conflict of interest. The PATRIOT Act reauthorization eliminated the 120-day time limit for an executive-appointed interim to serve, and eliminated the authority for the district court to appoint an interim. S. 214 returns the authority of the judiciary to appoint interim U.S. attorneys if a permanent replacement is not confirmed within 120 days.
Mr. Speaker, it is fairly obvious that the motivation behind this legislation was the dismissal of several U.S. attorneys earlier this year. Congress has been investigating the circumstances surrounding those dismissals for several months now. Notwithstanding the heated political rhetoric from some of my colleagues, this investigation has turned up no evidence of criminal wrongdoing or obstruction of justice.
Let me just try to lay this issue out as fairly as I can. Some of my colleagues still have concerns about allowing a judge to appoint the prosecutors before their court because they feel that is a conflict of interest. On the other hand, some of my equally smart colleagues have suggested that we should return to the way interim U.S. attorneys were appointed for 20 years, from 1986 to 2006, before the recent PATRIOT Act changes, to ensure that the process is not used to circumvent the Senate confirmation process.
The House Judiciary Committee has held hearings on this matter. We held a markup on the companion legislation, H.R. 580. The Justice Department does not object to this legislation, and I will be supporting it myself personally.
Mr. Speaker, I reserve the balance of my time.
Mr. CONYERS. Mr. Speaker, I am proud to introduce and give as much time as he may consume to the chairman of the Intellectual Property Subcommittee on the Judiciary Committee, Mr. Howard Berman.
Mr. BERMAN. I thank my chairman for helping to bring this bill and this issue to the floor twice now, and for yielding me this time.
Mr. Speaker, last month, the House passed H.R. 580 to restore the checks and balances to the U.S. attorney appointment process. The bill we are considering today takes a slightly different path to nearly the same end.
Last year, during the conference process on reauthorization of the PATRIOT Act, a provision was added to the report authorizing the Attorney General to unilaterally appoint interim U.S. attorneys for indefinite periods of time, making it possible for the administration to circumvent the Senate confirmation process.
The only disagreement I would have with my friend from Florida's comments was the notion that the Congress considered that change. This was put in in a conference committee, unbeknownst to, I think, just about every Senator on that conference committee, certainly all House Members, other than perhaps the chairman of the committee; and the Congress didn't consider that change.
When the Judiciary Committee began its investigation into the U.S. attorney firings early this year, DOJ representatives were quick to assure members of the committee that getting around the confirmation process was never their intent in pushing for this proposal.
As the Department began producing e-mails and other materials in response to the Judiciary Committee's inquiry, it became clear that whether or not it was the original intent of the administration, DOJ and White House employees quickly figured out that the provision created the possibility of circumventing the Senate and decided to exploit that authority.
As I said when we passed H.R. 580 last month, the ongoing investigation may uncover many issues within the Department that we want to examine. In the meantime, we should quickly address the problem we know about.
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The bill we are considering today would reinstate a system that encourages politics to be left at the door during the appointment process and creates a check on the system if the executive branch cannot bring itself to do that.
The reason we are considering a second bill on this topic is that Republicans in the other body have blocked the House-passed bill from progressing. The only difference between these two bills is that the House bill specifically precluded the administration from using the Vacancy Reform Act to extend interim appointments for another 210 days. This is a provision that the Bush administration used nearly 30 times in its first 5 years to replace U.S. attorneys. If this avenue remains open, we are permitting the practice of circumventing Senate confirmation to continue. A temporary appointee could serve for nearly a year without a Presidential nomination or going through the confirmation process.
It's ironic, isn't it? We hear the arguments all the time about the Senate not acting fast enough to confirm judicial appointments. There is rarely an emergency to get a district judge confirmed. U.S. attorneys are different. In any given district, there is only one U.S. attorney. If the administration can simply use extended temporary appointments, the problem will continue.
This bill shouldn't be our last word on the matter. In the progress of the investigation in the Judiciary Committee, we have learned that a second provision removing residency requirements for U.S. attorneys was likely put into the PATRIOT Act reauthorization to make way for certain particular interim appointees. We should repeal that provision, and I intend to introduce legislation to do so.
Communities in this country should feel assured that their U.S. attorney wasn't put in for purely political purposes. These positions shouldn't be used to ``develop the bench'' or to send in someone who had no connection to the community whatsoever just because he needed a job.
We should fix the system completely, and we will, but because of threatened holds in the other body, we are only doing a partial fix today.
Mr. KELLER of Florida. Mr. Speaker, I reserve the balance of my time.
Mr. CONYERS. Mr. Speaker, I am proud to yield such time as she may consume to the gentlewoman from California (Ms. Zoe Lofgren) a subcommittee chair of the Judiciary Committee.
Ms. ZOE LOFGREN of California. Mr. Speaker, I thank the gentleman for yielding to me.
Mr. Speaker, last year, during the conference process on reauthorization of the PATRIOT Act, a check on executive power simply disappeared. In its place, the Republican majority overseeing the conference put in a provision removing the court from the process of appointment and authorizing the Attorney General to appoint interim U.S. attorneys indefinitely.
The Senator who was chairman of the Judiciary Committee at the time said recently that he did not realize the provision was in the bill passed last year until a colleague alerted him to it last month. I don't think anyone was surprised to learn that after the investigation, the former chairman learned that the language had been requested by the Department of Justice. The language was apparently presented by a DOJ employee who is now the U.S. attorney in Utah. Before Senator Specter made these comments, the only legislative history of this amendment was one sentence in the conference report that said the new section
``addresses an inconsistency in the appointment process of U.S. attorneys.''
As we receive more information about the Department of Justice and White House interaction leading up to the dismissal of eight, now nine, U.S. attorneys, the appearance of a political basis for the removals becomes more clear. U.S. attorneys are the chief Federal law enforcement officers in their districts. We rely on them to enforce the law without political prejudice.
One of the former U.S. attorneys who testified before our Judiciary subcommittee recently said that former Attorney General Ashcroft made a point in their first conversation to say that U.S. attorneys have to leave politics at the door. This bill that is before the House today would reinstate a system that encourages politics to be left at the door during the appointment process and creates a check on the system if the executive branch cannot bring itself to do that.
Finally, Mr. Speaker, I have to add that I have been dismayed in reviewing some of the terms provided to the Judiciary Committee relative to communications between the DOJ. Historically the American people have been able to rely on the Department of Justice to stay above the political fray, especially when it comes to prosecutors. Watergate should have indelibly impressed this lesson upon future administrations, but clearly in this case it did not.
I ask my colleagues to support this legislation and to refute Kyle Sampson's statement when he said, ``The only thing at risk here is a repeal of the AG's appointment authority. House Members won't care about this at all. All we need is for one Senator to object to the language.''
The House of Representatives does care about political independence. We do believe that the executive branch should not ignore legislative branch authority. We should refute the Department's slow march to cooperating with our oversight efforts, and we need to reinstate this important check on the executive branch authority to appoint U.S. attorneys.
Mr. KELLER of Florida. Mr. Speaker, I yield back the balance of my time.
Mr. CONYERS. Mr. Speaker, I was hoping that our colleague from the Judiciary Committee, the gentleman from Alabama, Mr. Artur Davis, would be able to join us in this debate because he worked very diligently with Mr. Berman and Ms. Lofgren.
Mr. Speaker, while United States attorneys owe their appointments to the President, once they are appointed, their enforcement decisions must be unquestionably above politics. This is an irony that exists, but it is something that must be zealously complied with if we are to have a law enforcement system that can be regarded as faithful to the Constitution and to the laws of the land and to protect the American people.
The Senate confirmation in an open and public process is one way we safeguard against politicizing the prosecutors in the Department of Justice. That safeguard was severely compromised by the secret change in section 546. What we will do now is restore that safeguard and honor the system of checks and balances.
Mr. Speaker, I am confident that my colleagues on both sides of the aisle will support this important consideration.
Ms. LINDA T. SANCHEZ of California. Mr. Speaker, I rise in support of S. 214, a bill that will revoke the Attorney General's unfettered authority to appoint U.S. Attorneys indefinitely.
During the USA PATRIOT Act Reauthorization conference, Republicans slipped a small provision into the conference report with enormous repercussions. That provision removed the 120-day limit for interim appointments of U.S. Attorneys, thereby allowing interim appointees to serve indefinitely and without confirmation.
After months of investigation by the House Judiciary Committee, we have learned that the Bush administration exploited this newly created loophole to purge high-performing Federal prosecutors while they were in the midst of high-profile public corruption investigations involving Republican officials. And while the administration has insisted it never intended to use this loophole to bypass Senate confirmation for appointing U.S. Attorneys, our investigation has uncovered communications and testimony that suggest otherwise.
We also learned, for example, that in an e-mail to former White House Counsel, Harriet Miers, former Attorney General Chief of Staff, Kyle Sampson wrote: ``I strongly recommend that, as a matter of administration policy, we utilize the new statutory provisions that authorize the Attorney General to make U.S. Attorney appointments.'' Mr. Sampson further said that by using the new provision, the Justice Department could ``give far less deference to home-State Senators and thereby get (1) our preferred person appointed and (2) do it far faster and more efficiently, at less political cost to the White House.''
Referring to the new authority to appoint interim U.S. Attorneys indefinitely, Mr. Sampson also said, ``If we don't ever exercise it then what's the point of having it?''
The Preserving United States Attorney Independence Act of 2007 provides the necessary legislative response to restore checks and balances in the U.S. Attorney appointment process by reinstating the 120-day limit on the interim appointment. Additionally, the bill would apply retroactively to all U.S. Attorneys currently serving in an interim capacity. This would ensure that interim U.S. Attorneys appointed since the purge scheme was hatched are not permitted to serve indefinitely and without Senate confirmation.
This is a common sense solution that has received strong support from the President of the National Association of Former U.S. Attorneys as well as from a former Republican-appointed U.S. Attorney who testified before the Subcommittee on Commercial and Administrative Law. It is also important to note that the Attorney General himself has expressed that he is not opposed to rolling back this provision of the USA PATRIOT Act.
I want to be clear that the consideration of S. 214 will not stop the Judiciary Committee's ongoing investigation of the U.S. Attorney purge scheme and the politicization of the Justice Department. After months of investigations, it is clear that the answers can only be found in the White House. We have spoken to every senior Justice Department official involved in the firing process and we still have not gotten the answers to two critical questions: Who made the decision to mass fire U.S. Attorneys, and why were these particular U.S. Attorneys targeted?
Mr. Speaker, the American people need to be assured that political calculations do not determine whether an individual is arrested or prosecuted. We must ensure that the integrity and honor of the Justice Department will be reinstated. I hope my colleagues will join me in the first critical step in this process by closing the loophole in the USA PATRIOT Act that this administration has improperly exploited for political purposes and supporting S. 214.
Ms. JACKSON-LEE of Texas. Mr. Speaker, I strongly support S. 214, which is the Senate version of H.R. 580, which the Judiciary Committee favorably reported on March 15, 2007. This much needed and timely legislation amends chapter 35 of title 28 of the United States Code to restore the 120-day limit on the term of a United States Attorney appointed on an interim basis by the Attorney General. The shocking revelations regarding the unprecedented firings of several United States Attorneys provide all the justification needed to adopt this salutary measure promptly and by an overwhelming margin.
United States Attorneys are appointed by the President with the advice and consent of the Senate. Each United States Attorney so appointed is authorized to serve a 4-year term but is subject to removal by the President without cause. The Senate's advise and consent process formally checks the power of the President by requiring the United States Attorney nominee to go through a confirmation process.
In addition, Senators also play a particularly influential informal role in the nomination of United States Attorneys. Typically, a President, prior to appointing a new United States Attorney, consults with the Senators from the State where the vacancy exists if they are members of the President's political party. The President usually accepts the nominee recommended by the Senator or other official. This tradition, called ``Senatorial courtesy,'' serves as an informal check on the President's appointment power.
Since the Civil War, the judiciary has been empowered to fill vacancies in the office of the United States Attorney. In 1966, that authority was codified at 28 U.S.C. Sec. 546. When a United States Attorney position became vacant, the district court in the district where the vacancy occurred named a temporary replacement to serve until the vacancy was filled. In 1986, in response to a request by the Attorney General that its office be vested with authority to appoint interim United States Attorneys, Congress amended the statute to add former section 546(d).
Pursuant to this authority, the Attorney General was authorized to appoint an interim United States Attorney for 120 days and, if the Senate did not confirm a new United States Attorney within such period, the district court was then authorized to appoint an interim United States Attorney to serve until a permanent replacement was confirmed. By having the district court play a role in the selection of an interim United States Attorney, former section 546(d) allowed the judicial branch to act as a check on executive power. In practice, if a vacancy was expected, the Attorney General would solicit the opinion of the chief judge of the relevant district regarding possible temporary appointments.
Twenty years later, section 546 was amended again in the USA PATRIOT Improvement and Reauthorization Act of 2005. This legislation amended section 546(c) to provide that ``[a] person appointed as United States attorney under this section may serve until the qualification of a United States Attorney for such district appointed by the President'' under 28 U.S.C. Sec. 541. The extent of the legislative history of this provision is one sentence appearing in the conference report accompanying the Act: ``Section 502 [effecting the amendments to section 546] is a new section and addresses an inconsistency in the appointment process of United States Attorneys.''
Although the legislative purpose is unclear, the practical effect is not. The Act amended section 546 in two critical respects. First, it effectively removed district court judges from the interim appointment process and vested the Attorney General with the sole power to appoint interim United States Attorneys. Second, the Act eliminated the 120-day limit on the term of an interim United States Attorney appointed by the Attorney General. As a result, judicial input in the interim appointment process was eliminated. Even more problematic, it created a possible loophole that permit United States Attorneys appointed on an interim basis to serve indefinitely without ever being subjected to Senate confirmation process, which is plainly a result not contemplated by the Framers.
Mr. Speaker, excluding changes in administration, it is rare for a United States Attorney to not complete his or her 4-year term of appointment. According to the Congressional Research Service, only 54 United States Attorneys between 1981 and 2006 did not complete their 4-
year terms. Of these, 30 obtained other public sector positions or sought elective office, 15 entered or returned to private practice, and one died. Of the remaining eight United States Attorneys, two were apparently dismissed by the President, and three apparently resigned after news reports indicated they had engaged in questionable personal actions.
Mr. Speaker, in the past few months disturbing stories appeared in the news media reporting that several United States Attorneys had been asked to resign by the Justice Department. It has now been confirmed that at least seven United States Attorneys were asked to resign on December 7, 2006. An eighth United States Attorney was subsequently asked to resign. And we learned on May 10, the day the Attorney General testified before the House Judiciary Committee, we learned that a ninth United States Attorney had been asked to resign as part of the purge. The names of the fired United States Attorneys are as follows:
H.E. (``Bud'') Cummins, III, U.S. Attorney (E.D. Ark.); John McKay, U.S. Attorney (W.D. Wash.); David Iglesias, U.S. Attorney (D. N.M.); Paul K. Charlton, U.S. Attorney (D. Ariz.); Carol Lam, U.S. Attorney
(S.D. Calif.); Daniel Bogden, U.S. Attorney (D. Nev.); Kevin Ryan, U.S. Attorney (N.D. Calif.); Margaret Chiara, U.S. Attorney (W.D. Mich.); and Todd P. Graves, U.S. Attorney (W.D. Mo.).
Mr. Speaker, on March 6, 2007, the Judiciary Committee's Subcommittee on Commercial and Administrative Law held a hearing entitled,
``Restoring Checks and Balances in the Confirmation Process of United States Attorneys.'' Witnesses at the hearing included six of the eight former United States Attorneys and William Moschella, Principal Associate Deputy Attorney General, among other witnesses.
Six of the eight former United States Attorneys testified at the hearing and each testified that he or she was not told in advance why he or she was being asked to resign. Upon further inquiry, however, Messrs. Charlton and Bogden were advised by the then Acting Assistant Attorney General William Mercer that they were terminated essentially to make way for other Republicans to enhance their credential and pad their resumes. In addition, Messrs. Iglesias and McKay testified about inappropriate inquiries they received from Members of Congress concerning pending investigation, which they surmised may have led to their forced resignations.
Mr. Speaker, the USA PATRIOT Act Reauthorization provision on interim United States Attorneys should be repealed for two reasons. First, Members of Congress did not get an opportunity to vet or debate the provision that is current law. Rather, the Republican leadership of the 109th Congress slipped the provision into the Conference Report at the request of the Department of Justice. Not even Senate Judiciary Chairman Arlen Specter, whose chief of staff was responsible for inserting the provision, knew about its existence.
Second, it is now clear that the manifest intention of the provision was to allow interim appointees to serve indefinitely and to circumvent Senate confirmation. We know now, for example, that in a September 13, 2006 e-mail to former White House Counsel, Harriet Miers, Attorney General Chief of Staff, Kyle Sampson wrote:
I strongly recommend that, as a matter of Administration policy, we utilize the new statutory provisions that authorize the Attorney General to make U.S. Attorney appointments.
Mr. Sampson further said that by using the new provision, DOJ could
``give far less deference to home-State Senators and thereby get (1) our preferred person appointed and (2) do it far faster and more efficiently, at less political cost to the White House.''
Regarding the interim appointment of Tim Griffin at the request of Karl Rove and Harriet Miers, Mr. Sampson wrote to Monica Goodling, Senior Counsel to the White House and Liaison to the White House on December 19, 2006 the following:
I think we should gum this to death: ask the Senators to give Tim a chance, meet with him, give him some time in office to see how he performs, etc. If they ultimately say,
`no never' (and the longer we can forestall that, the better), then we can tell them we'll look for other candidates, and otherwise run out the clock. All of this should be done in `good faith,' of course.
Finally, we now know that after gaining this increased authority to appoint interim United States Attorneys indefinitely, the administration has exploited the provision to fire United States Attorneys for political reasons. A mass purge of this sort is unprecedented in recent history. The Department of Justice and the White House coordinated this purge. According to an administration
``hit list'' released in March of this year, United States Attorneys were targets for the purge based on their rankings. The ranking relied in large part on whether the United States Attorneys ``exhibit[ed] loyalty to the President and Attorney General.''
Mr. Speaker, until exposed by this unfortunate episode, United States Attorneys were expected to, and in fact did exercise, wide discretion in the use of resources to further the priorities of their districts. Largely a result of its origins as a distinct prosecutorial branch of the Federal Government, the office of the United States Attorney traditionally operated with an unusual level of independence from the Justice Department in a broad range of daily activities. That practice served the Nation well for more than 200 years. The practice that has been in place for less than 2 years has served the Nation poorly. It needs to end. That is why I vote to report H.R. 580 favorably to the House. That is why I will vote for S. 214. I urge all Members to do likewise.
Mr. CONYERS. Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore (Mr. Pastor). The question is on the motion offered by the gentleman from Michigan (Mr. Conyers) that the House suspend the rules and pass the Senate bill, S. 214.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds being in the affirmative, the ayes have it.
Mr. CONYERS. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the Chair's prior announcement, further proceedings on this question will be postponed.
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