Appointing U.S. Attorneys - Then and After Reauthorization

[editor’s note, by clammyc] promoted because, well, I wrote it and think it is important…..clammyc

by Adam Lambert (clammyc)
for ePluribus Media

Crossposted on the ePluribus Media Journal

Note: As part of the ePluribus Media researchers diving into the details around the U.S. Attorneys resigning and being replaced (see Gonzales Seven), it became important to step back and look at how U.S. Attorneys were traditionally selected, how they and their offices were organized, and what exactly did the USA PATRIOT IMPROVEMENT AND REAUTHORIZATION ACT OF 2005 change. Clammyc’s article below provides that background.

The news over the past few weeks regarding Alberto Gonzales and the resignations and replacements of US Attorneys has generated much attention. The reasons are certainly numerous: the timing of Scooter Libby’s trial, the ties that the replacements have to the Bush administration, the questions surrounding the abrupt nature of the resignations and the inevitable comparisons to the Saturday Night Massacre back in 1973.

Until recently (as with many actions regarding political and governmental appointments), there was a general process that was followed when a candidate is suggested, nominated, appointed and confirmed as a U.S. Attorney. Both the Legislative Branch and the Executive Branch are involved in this process.

Background

There are 93 US Attorneys (including Puerto Rico and Guam), with each Attorney representing a “district.” Obviously, some states have more than one district while some states have only one district. The following basic information is from the US Department of Justice’s web site (emphasis added):

United States Attorneys are appointed by, and serve at the discretion of, the President of the United States, with advice and consent of the United States Senate.

United States Attorneys conduct most of the trial work in which the United States is a party. The United States Attorneys have three statutory responsibilities under Title 28, Section 547 of the United States Code:

the prosecution of criminal cases brought by the Federal government;

the prosecution and defense of civil cases in which the United States is a party; and

the collection of debts owed the Federal government which are administratively uncollectible.

Each United States Attorney exercises wide discretion in the use of his/her resources to further the priorities of the local jurisdictions and needs of their communities. United States Attorneys have been delegated full authority and control in the areas of personnel management, financial management, and procurement.

Note the bolded part about “advice and consent of the United States Senate” as we will get back to that later.

Each office has Assistant District Attorneys and support staff. This size will vary, based largely on the district and the volume of work. The US Attorney’s office in the District of Columbia is the largest, with over 350 Assistant US Attorneys and a similar amount of support personnel. A smaller office such as Idaho has only about 59 employees, with 25 Assistant United States Attorneys. While there is a specific process for appointing US Attorneys, the Assistant District Attorneys are largely civil service positions. Ostensibly, the Attorney General has the authority to appoint Assistant U.S. Attorneys, but that authority has also “ been delegated to the Director, Office of Attorney Personnel Management. Authority.”

According to the US Code (Title 28, Chapter 35, Section 541), the US Attorney’s term is a four year term, with the US Attorney continuing to serve after the four-year term until a successor is appointed and qualifies.

The Appointment Process

Generally speaking, U.S. Attorneys are recommended by Senators and Representatives in their home state, nominated by the President and then after background checks, presented to the Senate for approval.

That was the process, until the recent language in the reauthorization of the PATRIOT ACT in 2006 changed it. According to the US Code (Title 28, Chapter 35, Section 546), the following applies:

(a) Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant.

(b) The Attorney General shall not appoint as United States attorney a person to whose appointment by the President to that office the Senate refused to give advice and consent.

(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.

This will be important later as well.

One thing that is consistent — the President needs the ‘advice and consent’ of the Senate (kind of like the ‘upperdown vote’).

So Why is the PATRIOT ACT Reauthorization Important?

In March of 2006, President Bush signed USA PATRIOT IMPROVEMENT AND REAUTHORIZATION ACT OF 2005. In addition to all of the other contents of this Act, it amended Subsection (c) of Section 546 (the original law is noted above) and eliminated Subsection (d) in its entirety.

Section 502 of HR 109-333 is the relevant section and is reproduced below:

Section 546 of title 28, United States Code, is amended by striking subsections (c) and (d) and inserting the following new subsection:

(c) 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 section 541 of this title.

So, basically, what happened here is that (1) the 120 day ‘interim’ rule was eliminated, and (2) the matter was taken completely out of the hands of the district court. Not only that, but the effect here is that any ‘interim’ US Attorney can by appointed and can theoretically serve until the end of the appointing President’ s term. Additionally, the Attorney General now has the power to appoint an ‘interim’ US Attorney who can serve, in the immediate case, until the end of 2008.

What this does, in effect, is allow the Attorney General to appoint anyone so long as the appointee was not previously submitted and refused by the Senate. Once again, the powers of the Legislative Branch are being stripped from the process and shifted to the Executive Branch. Further, this is currently being questioned as potentially unconstitutional in that it is delegating the authority to make such appointments from the President (under Article II, Section 2 of the Constitution) to the Attorney General.

While it is important to see the relationship between the ‘interim’ US Attorneys who have been appointed, as well as to uncover any and all reasons why an unusual number of US Attorneys abruptly resigned, we shouldn’t forget the process behind this. The importance of this Administration’s consolidation of power in all areas — including the power to investigate without fear of retribution — should not be ignored.

In fact, it should be highlighted as another in a long line of, at a minimum, potential abuses of power that this Executive Branch has committed over the past six years.

ePluribus Media Researchers, Contributors and Fact Checkers: gles, clammyc, cho, standingup and roxy… with hat tips to the guys on Kos who gave some background… DC Pol Sci, aloyshakaramozov, MarketTrustee, and Carolita