This week — largely in response to the forced resignations of several U.S. attorneys by the Bush Administration — Senate Democrats have scheduled a vote to give federal judges the power to appoint U.S. attorneys to vacancies. While this may be a politically attractive maneuver given the administration’s mishandling of the resignations, it is not in the country’s best interest and would simply compound one mistake with another. The Preserving United States Attorney Independence Act of 2007, S. 214, ignores hard-learned lessons of the past and in doing so dooms us to repeat mistakes we had hoped to prevent by having U.S. attorneys appointed by the President and confirmed by the Senate.
Previously when judges had the authority to appoint U.S. attorneys, we encountered numerous instances in which a judge refused to appoint an individual to the post. There are also legitimate concerns regarding the ability of the judiciary to appropriately review the backgrounds of those they appoint. Several cases illustrate the seriousness of this concern:
- Southern District of West Virginia, 1987: In 1987, the U.S. attorney for the Southern District of West Virginia was confirmed to be a federal judge. When the term of the interim U.S. attorney expired, the chief district judge appointed another individual as U.S. attorney. This individual was not a Justice Department employee and had not undergone an FBI background investigation. The court’s appointee came into the office and started asking about ongoing public integrity investigations, including investigations involving the mayor of Charleston and the state’s governor. Not only were this mayor and governor under investigation by the U.S. attorney’s office at the time, both were later indicted and convicted of various federal crimes. The first assistant U.S. attorney, who knew that the district court’s U.S. attorney had not undergone a background investigation, believed that these inquiries about pending investigations of local politicians were inappropriate and reported them to the Executive Office for United States Attorneys in Washington, D.C. The Justice Department eventually had to remove the investigative files involving the governor from that U.S. attorney’s office for safeguarding. The Justice Department also had to direct the court’s appointee to recuse herself from some criminal matters until a background check could be completed. This situation was not resolved until another U.S. attorney was confirmed by the Senate.
- District of South Dakota, 2005: In 2005, when the term of an interim U.S. attorney was about to expire, the chief district judge told the Justice Department that he wanted to appoint an individual who did not have any federal prosecutorial experience, had not undergone a background check, and did not have the necessary security clearances. The Justice Department strenuously objected. Once the Justice Department believed the matter had been resolved, the attorney general appointed another candidate. A federal judge executed the oath of office for this appointee, and copies of the attorney general’s order were sent to the district court. Ten days later, the Justice Department received a fax indicating that the chief district judge had changed his mind and “appointed” the earlier, unacceptable candidate as U.S. attorney. This created a situation where two different people claimed to be the U.S. attorney for the District of South Dakota. Defense lawyers representing criminal defendants in the district indicated that they would challenge ongoing investigations and cases on the basis that they could not know who was in charge. The chief judge then refused to negotiate a resolution to this situation. Eventually, in order to protect ongoing criminal cases, the President was forced to resolve the situation by firing the district judge’s U.S. attorney. The matter was not completely resolved until another U.S. attorney was confirmed by the Senate the next year. (This particular case is the reason why the Justice Department sought the provision that was included in the Patriot Act.)
The Senate should take a lesson from these cases. It is imperative that we conduct thorough reviews of appointee backgrounds and encourage prompt appointment of attorneys to vacancies. As written, the proposed revisions to the system included in S. 214 would undermine these goals.
I have introduced an amendment to ensure that United States attorneys are only appointed by the President, with the advice and consent of the Senate. My amendment requires the President to nominate a U.S. attorney within 120 days, and requires the Senate to then act on that nomination within another 120 days. To strongly encourage the President to comply with this deadline, the amendment also provides that if the President fails to abide by his deadline for nominating any U.S. attorney, he will lose the benefit of the deadline on Senate action for all of his U.S. attorney nominees.
This system will ensure that U.S. attorneys are promptly appointed in the way that ensures executive accountability and preserves the Senate’s check on the executive: appointment by the President, with the advice and consent of the Senate. This proposal takes the judges out of the business of selecting U.S. attorneys. Judges have proven unwilling to exercise this authority, believing that it poses a conflict of interest. They are in no position to evaluate the important managerial skills that a U.S. attorney must have. And they do not have access to the personnel files and background evaluations that ensure that only an appropriate candidate is appointed as U.S. attorney.
While some may desire to punish the President for the administration’s clumsy use of the power to appoint and remove U.S. attorneys, it is not the president who will pay the price exacted by this legislation — it is the American people and our law enforcement community.