Change in Naming Interim U.S. Attorneys Was Benign, Former Justice Official Says
In 2005, Moschella had a new "vehicle" for the proposed change: the Patriot Act reauthorization bill. On Nov. 9, 2005, Moschella forwarded Collins's recommendations in an E-mail to Brett Tolman, who served as counsel to then Senate Judiciary Committee member Orrin Hatch, a Utah Republican. Tolman responded that he would "get the comprehensive fix" that Moschella had recommended. Two days later, Moschella sent to some of his colleagues a "need help ASAP" E-mail saying that an amendment had been "floated" by "one of our friends" during the Patriot Act negotiations that would eliminate the judges' role in naming interim U.S. attorneys.
"We support eliminating the court's role," Moschella wrote, "and believe that the AG should have that authority alone." That, apparently, was the "comprehensive fix" Tolman referred to. Moschella asked his colleagues for examples of judges refusing to reappoint the attorney general's picks after the 120-day period, to bolster their case.
Sen. Arlen Specter, a Pennsylvania Republican who chaired the Senate Judiciary Committee when the Patriot Act was amended last year, has denied charges by prominent Democrats, including Sen. Dianne Feinstein of California, that he slipped in the provision in the dead of night. Specter said Tolman–who is now the U.S. attorney in Utah–was responsible and that the measure was inserted specifically at the Justice Department's request. Specter said that his chief of staff, Michael O'Neil, had been in the know but that Specter had not read the bill. Tolman declined to comment for this piece. Specter also noted that the measure had been in the conference report for 85 days for all to see and that at no point during the floor debate on the reauthorization package had anyone, including Democrats, raised any objections.
Justice spokesman Roehrkasse says that at that time, Moschella "did not have any knowledge of plans to remove U.S. attorneys." Roehrkasse also says that Justice officials were "unaware" that "any member of Congress opposed this provision" during the months-long debate.
In December 2006, Kyle Sampson, then chief of staff to Gonzales, sent an E-mail to a White House lawyer about using the Patriot Act provision to replace the existing U.S. attorney from Arkansas with Timothy Griffin, a former Bush campaign operative and protégé of White House political adviser Karl Rove. Sampson wondered in the E-mail whether Griffin was the best case with which to "test drive this authority."
But, "if we don't ever exercise it," Sampson asked, "then what's the point of having it?" Sampson added that "all of this should be done in 'good faith,' of course."
Justice spokesman Roehrkasse says that "to the extent" that Sampson's E-mail and other documents released by the department "suggest there was an attempt to circumvent the process, this does not and did not represent the views or final actions of the department."
He points to the fact that since March 9, 2006, when Gonzales obtained the authority to appoint interim U.S. attorneys, President Bush has nominated 16 individuals for Senate confirmation.
"We have stated a number of times," says Roehrkasse, "that in every single case, it is our goal to have a U.S. attorney that is confirmed by the Senate."
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