Change in Naming Interim U.S. Attorneys Was Benign, Former Justice Official Says
"If judges are hopping mad about a particular initiative of the department, if they get to pick the interim U.S. attorney," Collins remembers saying to colleagues, "do you think they are going to get people to support initiatives that they hate?" Collins, who once was a law clerk for Supreme Court Justice Antonin Scalia, says the whole interim appointment process didn't "make sense" to him from the separation of powers perspective in the first place.
"I don't think you should have officials of one branch," says Collins, "picking high-level people in another branch."
In July 2003, shortly before he left the Justice Department, Collins responded in an E-mail to a query from William Moschella, who was then the assistant attorney general for legislative affairs, as to whether Collins had any legislative fixes that could be inserted in an upcoming Justice Department reauthorization bill.
For nearly two decades, the House and Senate judiciary committees had stopped passing reauthorization language for the department. Instead, year after year, the department would simply get money and guidance from the appropriations committees, which funded the various programs. In essence, the judiciary committees, says one former senior justice official, had stopped managing or providing guidance to the department.
So when Rep. James Sensenbrenner, a Wisconsin Republican who was then chairman of the House Judiciary Committee, said he wanted to pass a reauthorization bill, it was a big deal. The department "began casting a wide net," says this former official, "for items to be included," including tinkering with old statutes that hadn't been touched in years, if not decades.
"It makes sense that it would have originated in that context," says this official, "because we were trying to fix things and improve the efficient running of the department."
Collins responded to Moschella's E-mail that one idea that "sprang to mind" was "eliminating the district court's role in selecting interim USAs" with, he says, the goal of protecting the department from the post-Protect Act judicial hostility. But nothing emerged from that E-mail exchange.
Justice Department spokesman Brian Roehrkasse says Moschella had considered "various legislative vehicles" for the fix.
Indeed, in an E-mail nearly a year later, in June 2004, Moschella again asked Collins about the law on interims, what Moschella described as "a pet peeve of yours I think." Moschella said that there was a "potential vehicle" for an amendment "to fix that constitutional anomaly." Moschella has since stated that his goal never was to circumvent the Senate's confirmation role.
Collins suggested some options for "fixing the problem" but says he "flagged" the issue that if the department took the judges out of the decision making, they would need to do something in return. Among the fixes Collins recommended was to make rolling appointments, have the deputy U.S. attorney temporarily fill the slot, or allow the interim attorney to remain indefinitely. But, says Collins, "I did not foresee in 2003 that it would create this open-ended feature.... This was not something I envisioned." In retrospect, says Collins, "I wish I had framed it more narrowly."
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