Wednesday, February 14, 2007
The controversy over the termination of seven U.S. Attorneys that brought to light a largely unnoticed provision of the USA Patriot Act renewal shows no signs of abating (see earlier post here). As a National Law Journal article (here) discusses, the Department of Justice supports the newly-adopted system under which the Attorney General can appoint an interim U.S. Attorney for what appears to be an unlimited period of time, although Justice officials have vowed they will not use this authority to avoid the Senate confirmation process. Bills in the House and Senate have been introduced to return the authority to the local U.S. district court judges, which the prior law allowed but DOJ views as a violation of separation of powers.
The original law, 28 U.S.C. Sec. 546, permitted the Attorney General to appoint an interim U.S. Attorney for up to 120 days, and after that "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." The USA Patriot Act renewal deleted that subsection and the law now provides that when there is a vacancy in the position, "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 541of this title." The old 120-day limit on Attorney General appointments is now gone, and theoretically the appointment could last for the term of the administration. A bill introduced in the House, H.R. 580 (here), would revert to the prior provision allowing the District Judges to appoint after the 120-day interim appointment ends. The Senate bill, S. 214 (here), seems to take a more restrictive approach by eliminating the Attorney General's authority to appoint an interim U.S. Attorney. The text of the bill, entitled "Preserving United States Attorney Independence Act of 2007" -- don't you just love these hokey names -- provides:
Section 546 of title 28, United States Code, is amended to read as follows:
`Sec. 546. Vacancies
`The United States district court for a district in which the office of the United States attorney is vacant may appoint a United States attorney to serve until that vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court.'.
There is no provision for the 120-day appointment by the Attorney General, and S. 214 seems to cut the Attorney General out of the process completely. That really could present a separation of powers problem if the District Court judges had the sole authority to appoint an interim U.S. Attorney. While the kinks are likely to be worked out to avoid this outcome, don't be surprised if the President vetoes the bill if Congress seeks to restore the status quo. The lesson for Congress is to pay attention to the bills you pass. (ph)