Last night I had a long discussion with Brendan of Brendan Calling. Brendan specializes in all things Arlen Specter. We had a debate over whether Arlen was aware of the language that was slipped into the Patriot Act that allowed the President to ‘appoint US Attorneys indefinitely while bypassing the Senate confirmation process.’
Brendan cited Arlen’s notoriously imperious style over his staff (earning him the nickname ‘Snarlin’ Arlen). He refused to believe that any staff member on Arlen’s staff would have the chutzpah to insert language into a bill without consulting their boss.
[As an aside, at this point in the conversation a young woman (and total stranger) that was sitting within earshot at the bar, interjected to tell us that she had catered a bat mitzvah at the Specter’s house and that Arlen had stiffed the entire catering crew.]
I, on the other hand, pushed forward the theory that someone from DOJ or Karl’s shop had ‘gotten to’ a member of Specter’s staff. My logic went like this:
Arlen would not have supported a clause that stripped the Senate of power. If he was somehow convinced to support it, he would have muscled it through the committee, rather than trying to pull a fast one on his colleagues.
Moreover, the plot to insert this language into the Patriot Act was hatched a long-time before it was actually passed into law. The DOJ and Rove were clearly involved in a conspiracy to sneak this language into the bill, and telling the Chairman of the Judiciary committee would have left things up to chance.
In the end, Brendan and I agreed that both our theories had at least 50% plausibility. Yet, this morning I think we have further evidence to support my side. It comes from statements Arlen made in a March 6, 2007 hearing:
Specter: The first I found out about the change in the PATRIOT Act occurred a few weeks ago when Senator Feinstein approached me on the floor and made a comment about two U.S. attorneys who were replaced under the authority of the change in law in the PATRIOT Act, which altered the way U.S. attorneys are replaced.
Prior to the PATRIOT Act, U.S. attorneys were replaced by the attorney general for 120 days, and then appointments by the court, or the first assistant succeeded to the position of U.S. attorney. And the PATRIOT Act gave broader powers to the attorney general to appoint replacement U.S. attorneys.
I then contacted my very able chief counsel, Michael O’Neill, to find out exactly what had happened. And Mr. O’Neill advised me that the
requested change had come from the Department of Justice, that it was handled by Brett Tolman, who is now the U.S. attorney for Utah and that
the change had been requested by the Department of Justice because there had been difficulty with the replacement of a U.S. attorney in South Dakota, where the court made a replacement which was not in accordance with the statute. Hadn’t been a prior federal employee and did not qualify.And there was also concern because, in a number of districts, the courts had questioned the propriety of their appointing power because of separation of powers. And, as Mr. Tolman explained it to Mr. O’Neill, those were the reasons and the provision was added to the PATRIOT Act, and, as I say, was open for public inspection for more than three months while the conference report was not acted on.
If you’ll recall, Senator Schumer came to the floor on December 16th, said he had been disposed to vote for the PATRIOT Act, but had changed his mind when the “New York Times” disclosed the secret wiretap program, electronic surveillance. May the record show that Senator Schumer is nodding in the affirmative. There’s something we can agree on.
In fact, we agree sometimes in addition. Well, the conference report wasn’t acted on for months, and at that time this provision was subject to review. Now, I read in the newspaper that the chairman of the Judiciary Committee, Arlen Specter, slipped it in, and I take umbrage and offense to that. I did not slip it in and I do not slip things in. That is not my practice.
If there is some item which I have any idea is controversial, I tell everybody about it. That’s what I do, so I found it offensive to have the report of my slipping it in. That’s how it got into the bill.
Now, I’ve talked about the matter with Senator Feinstein, and I do agree that we ought to change it back to where it was before. She and I, I think, will be able to agree on the executive session on Thursday. And let’s be candid about it. The atmosphere in Washington, D.C., is one of
high-level suspicion. There is a lot of suspicion about the executive branch because of what’s happened with signing statements, because of
what’s happened with the surveillance program.
As Brendan would be the first to point out, we’d be a little naive to take Arlen at his word. But, let’s give him the benefit of the doubt for a moment.
1) He claims the request came from the Department of Justice.
2) It was handled by Brett Tolman, a member of the Judiciary committee’s staff.
3) Tolman was then rewarded by an appointment as the U.S. Attorney for Utah.
On the surface, that is exactly what I would expect to find. Brendan and I were working from the assumption that the person responsible was Arlen’s (still) chief counsel, Michael O’Neill. I had to acknowledge that it was hard to explain why O’Neill had not been fired if he went behind Arlen’s back and put this language into the bill. But, now we have an explanation. Tolman, not O’Neill, was responsible. And Arlen couldn’t fire Tolman because he was already employed elsewhere as an U.S. Attorney. Straight up quid pro quo.
But it gets even more interesting. There were two candidates for the Utah position. The administration and the DOJ favored Kyle Sampson, while the Judiciary Committee, in deference to Orrin Hatch, preferred Tolman. Kyle Sampson was Alberto Gonzales’ chief of staff and the mastermind of the attorney purge. Tolman was the man that used to sneak the language into the bill.
It’s a dirty business, eh?