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.
"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."
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."