Change in Naming Interim U.S. Attorneys Was Benign, Former Justice Official Says
When Attorney General Alberto Gonzales testifies before the Senate Judiciary Committee next week, one question sure to be posed is whether Gonzales knowingly tried to circumvent the Senate's constitutional role in confirming U.S. attorneys by utilizing a little-known provision inserted into last year's reauthorization of the Patriot Act.
The provision, which Congress is now preparing to repeal, allows him to appoint interim federal prosecutors indefinitely, without Senate confirmation.
At a recent press conference, Gonzales said he "fundamentally" believes in and "would in no way support an effort to circumvent" the Senate's advice and consent role. But a chronology of how the controversial provision got into the Patriot Act in the first place raises interesting questions about whether some senior Justice officials saw a golden opportunity to replace difficult U.S. attorneys with "loyal Bushies"–as Gonzales's former chief of staff has described prosecutors who fell in line with the administration's policy priorities–and subverted what the provision's author, a former Justice official named Daniel Collins, says was its original, more benign intent.
Collins served as an associate in the deputy attorney general's office from June 2001 to September 2003. During that time, he coordinated several major legislative policy initiatives, including the Protect Act, which was signed into law in April 2003. The Protect Act beefed up sentencing in child pornography possession cases and related offenses. It also made some significant across-the-board changes in sentencing, including limiting the ability of judges to deviate from the federal sentencing guidelines, which the judges long had chafed against. Collins also worked on a key 2003 revision of Justice Department policies on a host of critical issues relating to criminals' ability to shorten sentences through plea bargains and through appeals. It's from his work on both these issues that Collins says he came up with the ideas that eventually lead to the Patriot Act provision for appointing interim U.S. attorneys.
Before the 2006 provision, the attorney general appointed interims. But if the Senate did not confirm the replacements within 120 days, federal district judges could then name interims. Back in 2003, Collins says he realized that that power could become a real stumbling block after the Protect Act was passed, because federal judges were so angry with the Justice Department.
"Judges felt we were tying their hands and making them give out unfair sentences," Collins told U.S. News in a recent interview. "They hated the sentencing guidelines in the first place, and to make them tighter was something judges didn't want."
Indeed, the administrative office of the federal courts and criminal defense lawyers were furious about the so-called Feeney amendment in the Protect Act that further narrowed judicial sentencing discretion but could not defeat it.
"They were very opposed to it, and when passed and enacted, they were very upset," remembers Collins, who's now in private practice in Los Angeles, "to the degree that I have never seen that much anger directed at the department over a policy issue by the judiciary."
Collins, who had also served as an assistant U.S. attorney before his stint at the Justice Department, says he was familiar with how U.S. attorneys were appointed and raised concerns about whether it was a good idea to give judges the power to name interim U.S. attorneys against the backdrop of the Protect Act.
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