59–006 

110TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 110–58 

INTERIM APPOINTMENT OF UNITED STATES ATTORNEYS 

MARCH 20, 2007.—Committed to the Committee of the Whole House on the State 

of the Union and ordered to be printed 

Mr. CONYERS, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

SUPPLEMENTAL AND ADDITIONAL SUPPLEMENTAL VIEWS 

[To accompany H.R. 580] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 580) to amend chapter 35 of title 28, United States Code, to 

provide for a 120-day limit to the term of a United States attorney 

appointed on an interim basis by the Attorney General, and for 

other purposes, having considered the same, reports favorably 

thereon with amendments and recommends that the bill as amended do pass. 

CONTENTS 

Page 

The Amendments ..................................................................................................... 2 

Purpose and Summary ............................................................................................ 2 

Background and Need for the Legislation ............................................................. 2 

Hearings ................................................................................................................... 9 

Committee Consideration ........................................................................................ 10 

Committee Votes ...................................................................................................... 10 

Committee Oversight Findings ............................................................................... 10 

New Budget Authority and Tax Expenditures ...................................................... 10 

Congressional Budget Office Cost Estimate .......................................................... 10 

Performance Goals and Objectives ......................................................................... 11 

Constitutional Authority Statement ...................................................................... 11 

Advisory on Earmarks ............................................................................................. 11 

Section-by-Section Analysis .................................................................................... 12 

Changes in Existing Law Made by the Bill, as Reported ..................................... 12 

Supplemental Views ................................................................................................ 15 

Additional Supplemental Views ............................................................................. 19 


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THE AMENDMENTS

The amendments (stated in terms of the page and line numbers 

of the introduced bill) are as follows: 

Page 2, line 12, strike the quotation marks and second period. 

Page 2, insert the following after line 12: 

‘‘(e) This section is the exclusive means for appointing a 

person to temporarily perform the functions of a United 

States attorney for a district in which the office of United 

States attorney is vacant.’’. 

SEC. 2. APPLICABILITY. 

(a) IN GENERAL.—The amendments made by this Act 

shall take effect on the date of the enactment of this Act. 

(b) APPLICATION.—

(1) IN GENERAL.—Any person serving as a United 

States attorney on the day before the date of the enactment of this Act who was appointed under section 

546 of title 28, United States Code, for a district may 

serve until the earlier of—

(A) the qualification of a United States attorney 

for that district appointed by the President under 

section 541 of that title; or 

(B) 120 days after the date of the enactment of 

this Act. 

(2) EXPIRED APPOINTMENTS.—If an appointment expires under paragraph (1)(B), the district court for the 

district concerned may appoint a United States attorney for that district under section 546(d) of title 28, 

United States Code, as added by this Act. 

PURPOSE AND SUMMARY

H.R. 580 amends section 546 of title 28 of the United States 

Code to permit an individual appointed by the Attorney General to 

temporarily fill a vacancy in the office of the United States Attorney. Such individual may serve until the earlier of either: (1) the 

qualification of a United States Attorney appointed by the President pursuant to section 541 of title 28 of the United States Code; 

or (2) the expiration of 120 days after appointment by the Attorney 

General of such individual as an interim United States Attorney. 

In addition, the bill amends section 546 to add a new provision providing that if the 120-day period expires, the district court for such 

district may appoint a United States Attorney to serve until the vacancy is filled. H.R. 580 clarifies that section 546 is the exclusive 

means for appointing an individual to temporarily perform the 

functions of a United States Attorney, and applies to individuals already serving in an interim capacity. 

BACKGROUND AND NEED FOR THE LEGISLATION

UNITED STATES ATTORNEYS AND THE

PRESIDENTIAL APPOINTMENT AUTHORITY

There are 93 United States Attorneys across the country, one for 

each of the 94 United States district courts (Guam and the NorthVerDate Aug 31 2005 06:00 Mar 21, 2007 Jkt 059006 PO 00000 Frm 00002 Fmt 6659 Sfmt 6601 E:\HR\OC\HR058.XXX HR058

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1See U.S. Dep’t of Justice, United States Attorneys’ Manual § 1–2.500 (1997), available at 

http://www.usdoj.gov/usao/eousa/foia—reading—room/usam/title1/2mdoj.htm#1–2.500; 

Kevin M. Scott, U.S. Attorneys Who Have Served Less than Full Four-year Terms, 1981–2006, 

CRS Report for Congress, RL 33889, at 1 (Feb. 22, 2007) [hereinafter CRS Report]. 2See U.S. Dep’t of Justice, United States Attorneys’ Manual § 1–2.500 (1997), available at 

http://www.usdoj.gov/usao/eousa/foia—reading—room/usam/title1/2mdoj.htm#1-2.500. 3 28 U.S.C. § 547 (2000). 4 Ross E. Wiener, Inter-Branch Appointments After the Independent Counsel: Court Appointment of United States Attorneys, 86 MINN. L. REV. 363, 383 (2001). 5 Id. at 365–66. 6 28 U.S.C. § 541(a) (2000). The office of United States Attorney was established pursuant to 

the Judiciary Act of 1789. Act of Sept. 24, 1789, ch. 20, § 35, 1 Stat. 73, 92. As originally established, the United States Attorney appointed for a Federal judicial district acted independently 

and was answerable only to the President. Griffin B. Bell & Daniel J. Meador, Appointing 

United States Attorneys, 9 J.L. & POL. 247 (1993). In 1870, Congress situated the office of United 

States Attorney in the Department of Justice under the jurisdiction of the Attorney General. 

Id. at 248. 

7 28 U.S.C. § 541(b) (2000). 8 Id. 

9 28 U.S.C. § 541(c) (2000). 10Wiener, supra note 4, at 397. 11 Id. at 393; Bell & Meador, supra note 6, at 249. 12 Id. 13Wiener, supra note 4, at 394. 

ern Mariana Islands share one United States Attorney).1 United 

States Attorneys conduct most of the trial work in which the 

United States is a party.2 Their statutory responsibilities include 

the prosecution of criminal cases brought by the Federal Government, the prosecution and defense of civil cases in which the 

United States is a party, and the collection of debts owed the Federal Government that are administratively uncollectible.3

A United States Attorney exercises wide discretion in the use of 

resources to further the priorities of his or her district. Largely as 

a result of its origins as a distinct prosecutorial outpost of the Federal Government, the office of the United States Attorney traditionally has operated with an unusual level of independence from the 

Justice Department in a broad range of daily activities.4 As one 

commentator noted, ‘‘U.S. Attorneys routinely decide [how] to focus 

limited investigative and prosecutorial resources [and these decisions are] informed by the U.S. Attorney’s prosecutorial philosophy 

and her assessment of the particular problems and vulnerabilities 

within her district.’’ 5

United States Attorneys are appointed by the President with the 

advice and consent of the Senate.6 Each United States Attorney so 

appointed is authorized to serve a 4-year term.7 At the expiration 

of such term, the United States Attorney may continue to serve 

until a successor is appointed and qualifies.8 A United States Attorney is subject to removal by the President without cause.9

The Senate’s advise and consent process formally checks the 

power of the President by requiring the United States Attorney 

nominee to go through a confirmation process.10 In conjunction 

with that process, Senators may play an influential informal role 

in the nomination of United States Attorneys.11 Typically, a President, prior to nominating a United States Attorney, consults with 

the Senators from the State where the vacancy exists if they are 

members of the President’s political party.12 If neither Senator is 

a member of the President’s political party, then the President may 

consult with House Members from that State in the President’s political party, or other party leaders in that State.13 Traditionally, 

the President has usually accepted the nominee recommended by 


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14 Id. 15 Id. 16 Act of March 3, 1863, ch. 93, § 2, 12 Stat. 768 (1863). 17Pub. L. No. 89–554, § 4(c), 80 Stat. 618 (1966). 18 Id. 19Pub. L. No. 99–646, § 69, 100 Stat. 3616 (1986) (codified as 28 U.S.C. § 546(d) (2000), re- pealed by USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109–177, 

title V, § 502, 120 Stat. 246 (2006)). 20 Id. 21Wiener, supra note 4, at 399 (citing interview with David Margolis and Bernie Delia, Associate Deputy Attorneys General, in Washington, D.C. (Dec. 28, 2000)). 22 USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109–177, tit. V, 

§ 502, 120 Stat. 246 (2006). 

23 Id. 24 Id. 25 Id. 

the Senator or other official.14 This tradition, called ‘‘Senatorial 

courtesy,’’ serves as an additional, informal check on the President’s appointment power.15

UNITED STATES ATTORNEY VACANCIES AND INTERIM APPOINTMENTS

From the time of the Civil War until March 2006, the Federal 

judiciary was empowered to fill temporary United States Attorney 

vacancies.16 In 1966, that authority was codified in section 546 of 

title 28 of the United States Code.17 Thus, when a United States 

Attorney position became vacant, the district court in the district 

where the vacancy occurred named a temporary replacement to 

serve until the vacancy was filled by a United States Attorney appointed by the President with the advice and consent of the Senate.18

In response to a request by the Attorney General that its office 

be vested with authority to appoint interim United States Attorneys, Congress enacted former section 546(d) of title 28 of the 

United States Code in 1986.19 Pursuant to this authority, the Attorney General was authorized to appoint an interim United States 

Attorney for 120 days and, if the Senate did not confirm a new 

United States Attorney within such period, the district court was 

then authorized to appoint an interim United States Attorney to 

serve until a permanent replacement was confirmed.20 By retaining 

a role for the district court in the selection of an interim United 

States Attorney, former section 546(d) allowed the Judicial Branch 

to act as a check on Executive power. In practice, if a vacancy was 

expected, the Attorney General would typically solicit the opinion 

of the chief judge of the relevant district regarding possible temporary appointments.21

Twenty years after section 546(d) was enacted, the USA PATRIOT Improvement and Reauthorization Act of 2005 removed the 

court’s role entirely on March 9, 2006.22 As amended, section 546(c) 

now provides that ‘‘[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 

section 541 of this title.’’ 23

The 2005 Act amended section 546 in two critical respects. It not 

only removed district court judges from the interim appointment 

process, vesting the Attorney General with the sole authority; 24 it 

also eliminated the 120-day limit on how long an interim United 

States Attorney appointed by the Attorney General could serve.25

As a result of the Act, judicial input in the interim appointment 

process was eliminated and, perhaps more importantly, it created 


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26 H.R. REP. NO. 109–333, at 109 (2006). 27 H.R. 580, Restoring Checks and Balances in the Confirmation Process of U.S. Attorneys: 

Hearing before the Subcomm. on Commercial and Administrative Law of the H. Comm. on the 

Judiciary, 110th Cong. (2007) (prepared statement of Atlee W. Wampler, III, President of the 

National Association of Former United States Attorneys). 28Preserving Prosecutorial Independence: Is the Department of Justice Politicizing the Hiring 

and Firing of U.S. Attorneys?: Hearing Before the S. Comm. on the Judiciary, 110th Cong. (2007) 

(prepared statement of Mary Jo White, former U.S. Attorney for the Southern District of New 

York). 29 Id. 30 H.R. 580, Restoring Checks and Balances in the Confirmation Process of U.S. Attorneys: 

Hearing Before the Subcomm. on Commercial and Administrative Law of the H. Comm. on the 

Judiciary, 110th Cong. (2007) (prepared statement of John A. Smietanka, former United States 

Attorney for the Western District of Michigan). 31 Id. 

a possible loophole that could permit United States Attorneys appointed on an interim basis to serve indefinitely without Senate 

confirmation. 

This provision was inserted quietly into the conference report on 

the 2005 Act, without debate. The only available explanation of the 

legislative intent of this amendment is one sentence that appeared 

in the conference report statement of managers: ‘‘Section 502 [effecting the amendments to section 546] is a new section and addresses an inconsistency in the appointment process of United 

States Attorneys.’’ 26

CONCERNS WITH CURRENT UNITED STATES ATTORNEY REMOVAL

AND REPLACEMENT PROCESS

Potential to Disrupt Office and Undermine Independence 

Although a United States Attorney serves at the pleasure of the 

President, his or her removal ‘‘as a result of political displeasure 

or for political reward . . . would undermine the confidence of the 

Federal judiciary, Federal and local law enforcement agencies, the 

public, and the thousands of Assistant United States Attorneys 

working in those offices.’’ 27 As one former United States Attorney 

recently testified, ‘‘Maintaining the prosecutorial independence of 

the United States Attorneys . . . is vital to ensuring the fair and 

impartial administration of justice in our Federal system.’’ 28

The former United States Attorney went on to note how removing a United States Attorney disrupts the ongoing work of that office: 

Changing a United States Attorney invariably causes disruption and loss of traction in cases and investigations in a United 

States Attorney’s Office. This is especially so in sensitive or 

controversial cases and investigations where the leadership 

and independence of the United States Attorney are often crucial to the successful pursuit of such matters, especially in the 

face of criticism or political backlash.29

As another former United States Attorney put it, ‘‘Sensitive investigations and prosecutions, most especially those of political or 

other public figures, should never be improperly derailed by a 

change of administration in the United States Attorney of a district.’’ 30

A related concern is that an abrupt, unexplained removal of a 

United States Attorney can adversely affect office morale, causing 

‘‘profound uncertainty in the career staff of assistants and staff.’’ 31

Professor Laurie Levenson explained, ‘‘It is deeply demoralizing for 


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32Preserving Prosecutorial Independence: Is the Department of Justice Politicizing the Hiring 

and Firing of U.S. Attorneys?: Hearing Before the S. Comm. on the Judiciary, 110th Cong. (prepared statement of Prof. Laurie L. Levenson, Loyola Law School). 33 H.R. 580, Restoring Checks and Balances in the Confirmation Process of U.S. Attorneys: 

Hearing Before the Subcomm. on Commercial and Administrative Law of the H. Comm. on the 

Judiciary, 110th Cong. (2007) (prepared statement of T.J. Halstead, Legislative Attorney, American Law Division, Congressional Research Service). 34 Id.; Pub. L. No. 105–277, div. C, tit. 1, § 151, 112 Stat. 2681, 2681–611 (1998) (codified at 

5 U.S.C. §§ 3345–49d (2000)). 35 5 U.S.C. § 3345 (2000). 36 5 U.S.C. § 3346 (2000). Section 3346 provides: 

(a) Except in the case of a vacancy caused by sickness, the person serving as an acting officer 

as described under section 3345 may serve in the office—

(1) for no longer than 210 days beginning on the date the vacancy occurs; or 

(2) subject to subsection (b), once a first or second nomination for the office is submitted to 

the Senate, from the date of such nomination for the period that the nomination is pending 

in the Senate. 

(b)(1) If the first nomination for the office is rejected by the Senate, withdrawn, or returned 

to the President by the Senate, the person may continue to serve as the acting officer for no 

more than 210 days after the date of such rejection, withdrawal, or return. 

(2) Notwithstanding paragraph (1), if a second nomination for the office is submitted to the 

Senate after the rejection, withdrawal, or return of the first nomination, the person serving 

as the acting officer may continue to serve—

(A) until the second nomination is confirmed; or 

(B) for no more than 210 days after the second nomination is rejected, withdrawn, or 

returned. 

(c) If a vacancy occurs during an adjournment of the Congress sine die, the 210-day period 

under subsection (a) shall begin on the date that the Senate first reconvenes. 

Id. 37 H.R. 580, Restoring Checks and Balances in the Confirmation Process of U.S. Attorneys: 

Hearing Before the Subcomm. on Commercial and Administrative Law of the H. Comm. on the 

Judiciary, 110th Cong. (2007) (prepared statement of T.J. Halstead, Legislative Attorney, American Law Division, Congressional Research Service). CRS observed that Congress, if it so desired, could mandate that section 546 be the ‘‘exclusive method for making interim appointments to U.S. Attorney positions.’’ Id. 

them to now see capable leaders with proven track records of successful prosecutions summarily dismissed and replaced by those 

who lack the qualifications and professional backgrounds traditionally expected of United States Attorneys.’’ 32

Bypassing the Requirement of Senatorial Advice and Consent 

Based on its preliminary analysis of data obtained from the Justice Department and secondary sources, the Congressional Research Service (‘‘CRS’’) has made several significant findings. First, 

it identified several instances where the Attorney General made 

successive interim appointments pursuant to section 546 of either 

the same or different individuals. For example, one individual received a total of four successive interim appointments. 33

Second, CRS identified at least 27 acting United States Attorneys who were appointed pursuant to the Federal Vacancies Reform Act of 1998 (Vacancies Act).34 With limited exception, the Vacancies Act applies to Executive Branch officers whose appointment 

is required to be made by the President with the advice and consent of the Senate.35 When there is a vacancy in such office, the 

Act permits an individual to be appointed to temporarily fill the vacant position and such individual may serve a maximum of 210 

days.36 When the Act is used in conjunction with successive appointments under section 546, the possibility arises that the Attorney General could effectively appoint an interim United States Attorney ‘‘whereby the advice and consent function of the Senate 

could be avoided to a significant degree even under the prior 

version of § 546.’’ 37


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38See, e.g., David Johnston, Dismissed U.S. Attorneys Received Strong Evaluations, N.Y. 

TIMES, Feb. 25, 2007, at A19; Dan Eggen, Justice Department Fires 8th U.S. Attorney; Dispute 

Over Death Penalty Cited, WASH. POST, Feb. 24, 2007, at A2; Dan Eggen, Fired Prosecutor Disputes Justice Dept. Allegation; He Calls Testimony ‘‘Unfair’’; Meanwhile, Senate Panel Votes to 

Limit Attorney General’s Power, WASH. POST, Feb. 9, 2007, at A6; Marisa Taylor & Greg Gordon, 

U.S. Attorneys’ Selection Is Questioned, SEATTLE TIMES, Jan. 28, 2007, at A8 (noting that the 

Attorney General ‘‘is transforming the ranks of the nation’s top Federal prosecutors by firing 

some and appointing conservative loyalists from the Bush Administration’s inner circle who critics say are unlikely to buck Washington, D.C.’’); Onell R. Soto & Kelly Thornton, Lam to Resign 

Feb. 15 as Speculation Swirls; Some See Politics at Play in Ouster of U.S. Attorney, SAN DIEGO

UNION-TRIB., Jan. 17, 2007, at A1. 39Dan Eggen, Prosecutor Firings Not Political, Gonzales Says; Attorney General Acknowledges, 

Defends Actions, WASH. POST, Jan. 19, 2007, at A2; David Johnston, Justice Dept. Names New 

Prosecutors, Forcing Some Out, N.Y. TIMES, Jan.17, 2007, at A17; Linda Satter, Prosecutor Post 

Is Filled in Recess, ARK. DEMOCRAT GAZETTE, Dec.16, 2006, at A1. 40Dan Eggen, Prosecutor Firings Not Political, Gonzales Says; Attorney General Acknowledges, 

Defends Actions, WASH. POST, Jan. 19, 2007, at A2; Paul Shukovsky, U.S. Attorney Who Led 

Fight Against Terrorism Steps Down, SEATTLE POST-INTELLIGENCER, Jan. 15, 2006, at B1; Christine Clarridge, U.S. Attorney McKay To Quit Prosecutor Job at End of Next Month, SEATTLE

TIMES, Dec. 16, 2006, at A1 (noting that Mr. McKay was described by his peers as a ‘‘rock-star 

attorney’’ and his firing came as a surprise to other U.S. Attorneys). 41David Johnston, Justice Dept. Names New Prosecutors, Forcing Some Out, N.Y. TIMES, Jan. 

17, 2007, at A17; Mike Gallagher, U.S. Attorney Plans To Resign, David Iglesias will leave the 

position 2 years early, ALBUQUERQUE J., Dec. 19, 2006, at A1. 42Dennis Wagner, U.S. Attorney Charlton Leaving Post for Law Firm, ARIZ. REP., Dec. 20, 

2006, at A12; Press Release, U.S. Dep’t of Justice, U.S. Attorney Paul Charlton to Step Down 

at End of January, Dec. 19, 2006, available at http://www.usdoj.gov/usao/az/press—releases/ 

2006/2006-270(Charlton).pdf. 43Kelly Thornton & Onell R. Soto, Lam stays silent about losing job; Law enforcement defends 

her record, SAN DIEGO UNION-TRIB., Jan. 13, 2007, at B1; Kelly Thornton & Onell R. Soto, Lam 

is asked to step down; job performance said to be behind White House firing, SAN DIEGO UNIONTRIB., Jan. 12, 2007, at A1. 44Sam Skolnik, U.S. attorney leaves office with no word on successor, LAS VEGAS SUN, Mar. 

1, 2007; Francis McCabe, Nevada U.S. Attorney Given Walking Papers, LAS VEGAS REV. J., Jan. 

15, 2007, at A1. 45 Bob Egelko, U.S. attorney was forced out, Feinstein says, S.F. CHRON., Jan. 19, 2007, at B1; 

Bob Egelko, U.S. Attorney for Bay Area resigns; Ryan investigated stock options fraud, violent 

gang crime and steroids in sports, faced criticism for his management style, S.F. CHRON., Jan. 

17, 2007, at A1; Evan Perez, Attorney Vacancies Spark Concerns, WALL ST. J., Jan. 16, 2007, 

at A4. 

RESIGNATIONS OF UNITED STATES ATTORNEYS SINCE MARCH 2006

Over the last few months, reports began to appear in the news 

media that various United States Attorneys had been asked to resign by the Justice Department.38 Based on these reports, it now 

appears that at least seven United States Attorneys were asked to 

resign on December 7, 2006. An eighth United States Attorney was 

subsequently asked to resign. They include the following: 

• H.E. Cummins, III, United States Attorney for the Eastern 

District of Arkansas; 39

• John McKay, United States Attorney for the Western District of Washington; 40

• David C. Iglesias, United States Attorney for the District of 

New Mexico; 41

• Paul K. Charlton, United States Attorney for the District of 

Arizona; 42

• Carol C. Lam, United States Attorney for the Southern District of California; 43

• Daniel Bogden, United States Attorney for the District of Nevada; 44

• Kevin Ryan, United States Attorney for the Northern District of California; 45 and 


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46Dan Eggen, Justice Department Fires 8th U.S. Attorney; Dispute Over Death Penalty Cited, 

WASH. POST, Feb. 24, 2007, at A2; Nate Reens, Judge Says U.S. Attorney Ousted; She’s Said 

to be Part of a Wider Shake-up, GRAND RAPIDS PRESS, Feb. 23, 2007, at A1. 47 H.R. 580, Restoring Checks and Balances in the Confirmation Process of U.S. Attorneys: 

Hearing Before the Subcomm. on Commercial and Administrative Law of the H. Comm. on the 

Judiciary, 110th Cong. (2007) (prepared statement of Carol C. Lam et al.) (tr. at 80). The six 

former United States Attorneys who testified at this hearing were Carol C. Lam, former United 

States Attorney for the Southern District of California; David C. Iglesias, former United States 

Attorney for the District of New Mexico; H.E. Cummins, III, former United States Attorney for 

the Eastern District of Arkansas; John McKay, former United States Attorney for the Western 

District of Washington; Daniel Bogden, United States Attorney for the District of Nevada; and 

Paul K. Charlton, United States Attorney for the District of Arizona. 48 Id. (testimony of Daniel Bogden and David C. Iglesias ) (tr. at 83, 94). 49David Johnston, Dismissed U.S. Attorneys Praised in Evaluations, N.Y. TIMES, Feb. 25, 

2007, available at http://www.nytimes.com/2007/02/25/washington/25lawyers.html?ex= 

1330059600&en=ac6dec5b36df31f3&ei=5 088&partner=rssnyt&emc=rss 50 H.R. 580, Restoring Checks and Balances in the Confirmation Process of U.S. Attorneys: 

Hearing Before the Subcomm. on Commercial and Administrative Law of the H. Comm. on the 

Judiciary, 110th Cong. (2007) (testimony of Paul K. Charlton and Daniel Bogden ) (tr. at 127– 28, 134–35). 51 Id. (testimony of David C. Iglesias and John McKay ) (tr. at 95–98, 100, 106–08, 129–30, 

133). 52See, e.g., E-mail from Monica Goodling, Senior Counsel to the Attorney General and White 

House Liaison, U.S. Dep’t of Justice, to Kyle Sampson, Chief of Staff to the Attorney General, 

U.S. Dep’t of Justice (Aug. 18, 2006, 5:27 PM) (with attached prior e-mail exchanges) (on file 

with the H. Comm. on the Judiciary). 

• Margaret M. Chiara, United States Attorney for the Western 

District of Michigan.46

Six of these former United States Attorneys testified at a hearing 

Before the Subcommittee on Commercial and Administrative Law 

on March 6, 2007. Although the Justice Department had claimed 

that they were removed for ‘‘performance-related reasons,’’ most 

testified that the Justice Department had not given them any such 

reason.47 In fact, two of them said it was not until the hearing 

itself that the Department offered any performance-related reason 

to explain their removal.48

Furthermore, suggestions by the Department that poor performance had anything to do with their removal appeared to be contradicted by the glowing assessments their offices had consistently received during their tenure in the Department’s periodic evaluations, the so-called ‘‘EARS reports.’’ 49 And there were indications 

that other motivations were actually at play. 

Messrs. Charlton and Bogden said they had been advised at one 

point, by then Acting Assistant Attorney General William Mercer, 

that they were being terminated to, in essence, make way for other 

Republicans to burnish their resumes.50 Messrs. Iglesias and 

McKay testified about inappropriate inquiries they had received 

from Members of Congress and their staff concerning matters 

under investigation, which they surmised may have led to their 

forced resignations.51

Internal Justice Department documents recently uncovered describe the Department’s efforts to utilize section 546, as amended 

by the USA PATRIOT Improvement and Reauthorization Act of 

2005, to bypass Senate confirmation. With respect to Mr. Cummins’

resignation, for example, these documents detail efforts by the 

White House and Justice Department staff to have Tim Griffin, a 

former Republican National Committee researcher, named as the 

interim United States Attorney for the Eastern District of Arkansas.52 These documents indicate that Justice officials sought to bypass the two Democratic senators in Arkansas, who normally 


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53See, e.g., E-mail from Kyle Sampson, Chief of Staff to the Attorney General, U.S. Dep’t of 

Justice, to Monica Goodling, Senior Counsel to the Attorney General and White House Liaison, 

U.S. Dep’t of Justice (Dec. 18, 2006, 6:27 PM) (with attached prior e-mail exchanges) (on file 

with the H. Comm. on the Judiciary). Mr. Sampson advises: 

I think we should gum this to death: ask the Senators to give Tim [Griffin] a chance, 

meet with him, give him some time in office to see how he performs, etc. If they ultimately say, ‘‘no never’’ (and the longer we can forestall that, the better), then we can 

tell them we’ll look for other candidates, ask them for recommendations, evaluate the 

recommendations, interview their candidates, and otherwise run out the clock. All of 

this should be done in ‘‘good faith,’’ of course. 

Id. 54 Id. 55 E-mail from Kyle Sampson, Chief of Staff to the Attorney General, U.S. Dep’t of Justice, 

to Harriet Miers, White House Counsel (Sept. 13, 2006, 4:25 PM) (on file with the H. Comm. 

on the Judiciary). 56 H.R. 580, Restoring Checks and Balances in the Confirmation Process of U.S. Attorneys: 

Hearing Before the Subcomm. on Commercial and Administrative Law of the H. Comm. on the 

Judiciary, 110th Cong. (2007) (prepared statement of T.J. Halstead, Legislative Attorney, American Law Division, Congressional Research Service). 

would have had input into this appointment.53 To this end, Attorney General Chief of Staff D. Kyle Sampson suggested that the Attorney General exercise his newfound appointment authority pursuant to section 546, as amended by the USA PATRIOT Improvement and Reauthorization Act of 2005, to put Mr. Griffin in place 

until the end of President George W. Bush’s term. He noted, ‘‘[I]f 

we don’t ever exercise it then what’s the point of having it?’’ 54 He 

further explained, ‘‘By not going the PAS route [the Senatorial advice and consent requirement for the appointment of a permanent 

United States Attorney pursuant to section 541 of title 28 of the 

United States Code], we can give far less deference to home-State 

Senators and thereby get (1) our preferred person appointed and 

(2) do it far faster and more efficiently, at less political cost to the 

White House.’’ 55

This recent spate of apparently politically motivated firings appears to be without precedent. Based on its preliminary analysis of 

available data for the period of 1993 through February 23, 2007, 

CRS was unable to identify ‘‘a similar pattern of contemporaneous 

departures that have been reported to stem from politically motivated dismissals of U.S. Attorneys.’’ 56

HEARINGS

The Committee’s Subcommittee on Commercial and Administrative Law held 1 day of hearings on H.R. 580 on March 6, 2007. Testimony was received from William E. Moschella, Principal Associate Deputy Attorney General, United States Department of Justice; Carol C. Lam, former United States Attorney for the Southern 

District of California; David C. Iglesias, former United States Attorney for the District of New Mexico; H.E. Cummins, III, former 

United States Attorney for the Eastern District of Arkansas; John 

McKay, former United States Attorney for the Western District of 

Washington; Daniel Bogden, United States Attorney for the District of Nevada; Paul K. Charlton, United States Attorney for the 

District of Arizona; Representative Darrell Issa (R-CA); former 

Representative Asa Hutchinson (R-AR); John A. Smietanka, a 

former United States Attorney for the Western District of Michigan; George J. Terwilliger, III, former Deputy Attorney General, 

United States Department of Justice; T.J. Halstead, Legislative Attorney, American Law Division, Congressional Research Service; 


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and Atlee W. Wampler, III, President of the National Association 

of Former United States Attorneys. 

COMMITTEE CONSIDERATION

On March 15, 2007, the Committee met in open session and ordered the bill H.R. 580 favorably reported with an amendment, by 

voice vote, a quorum being present. 

COMMITTEE VOTES

In compliance with clause 3(b) of rule XIII of the Rules of the 

House of Representatives, the Committee advises that there were 

no recorded votes during the Committee’s consideration of H.R. 

580. 

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the 

House of Representatives, the Committee advises that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new 

budgetary authority or increased tax expenditures. 

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of rule XIII of the Rules of the 

House of Representatives, the Committee sets forth, with respect to 

the bill, H.R. 580, the following estimate and comparison prepared 

by the Director of the Congressional Budget Office under section 

402 of the Congressional Budget Act of 1974: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, March 19, 2007. 

Hon. JOHN CONYERS, Jr., Chairman, 

Committee on the Judiciary, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: H.R. 580, a bill to amend chapter 35 of 

title 28, United States Code, to provide for a 120-day limit to the 

term of a United States attorney appointed on an interim basis by 

the Attorney General, and for other purposes. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Daniel Hoople, who can 

be reached at 226–2860. 

Sincerely, 

PETER R. ORSZAG, 

DIRECTOR. 

Enclosure 

cc: Honorable Lamar S. Smith. 


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Ranking Member 

H.R. 580—A bill to amend chapter 35 of title 28, United States 

Code, to provide for a 120-day limit to the term of a United 

States attorney appointed on an interim basis by the Attorney 

General, and for other purposes 

CBO estimates that enacting H.R. 580 would have no significant 

impact on the Federal budget. 

Under current law, the Attorney General may appoint an interim 

United States attorney to serve for an indefinite period of time 

until a vacancy is filled by the President with the advice and consent of the United States Senate. H.R. 580 would limit such interim appointments to a maximum of 120 days. Upon expiration of 

any interim appointment made by the Attorney General, the district court would be granted authority to appoint a United States 

attorney to serve until the vacancy is filled. 

H.R. 580 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

not affect the budgets of State, local, or tribal governments. 

On February 13, 2007, CBO transmitted a cost estimate for S. 

214, the Preserving United States Attorneys Independence Act of 

2007, as ordered reported by the Senate Committee on the Judiciary on February 8, 2007. The two bills are similar, and our cost estimates are the same. 

The CBO staff contact for this estimate is Daniel Hoople, who 

can be reached at 226–2860. This estimate was approved by Peter 

H. Fontaine, Deputy Assistant Director for Budget Analysis. 

PERFORMANCE GOALS AND OBJECTIVES

The Committee states that pursuant to clause 3(c)(4) of rule XIII 

of the Rules of the House of Representatives, H.R. 580, as amended, is intended to clarify that section 546 of title 28 of the United 

States Code is the exclusive means for appointing an individual to 

temporarily preform the functions of a United States Attorney for 

a district in which the office of United States Attorney is vacant. 

It specifies that such individual may serve until the earlier of either: (1) the qualification of a United States Attorney appointed by 

the President pursuant to section 541 of title 28 of the United 

States Code; or (2) the expiration of 120 days after appointment by 

the Attorney General of the individual as interim United States Attorney. Upon the expiration of 120 days, and if no permanent 

United States Attorney has been appointed with Senate confirmation, the district court for such district may appoint a United 

States Attorney to serve until the vacancy is filled. 

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee finds the authority for this legislation in article 2, section 2, clause 2 of the Constitution. 

ADVISORY ON EARMARKS

In accordance with clause 9 of rule XXI of the Rules of the House 

of Representatives, H.R. 580 does not contain any congressional 


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earmarks, limited tax benefits, or limited tariff benefits as defined 

in clause 9(d), 9(e), or 9(f) of Rule XXI. 

SECTION-BY-SECTION ANALYSIS

The following discussion describes the bill as reported by the 

Committee. 

Sec. 1. Interim Appointment of United States Attorneys. This section revises section 28 U.S.C. § 546(c) to provide that an individual 

appointed as a United States Attorney in a district in which the 

office of the United States Attorney is vacant may serve until the 

earlier of either: (1) the qualification of a United States Attorney 

appointed by the President pursuant to 28 U.S.C. § 541; or (2) the 

expiration of 120 days after appointment by the Attorney General 

of an interim United States Attorney. 

In addition, section 1 of the bill amends adds a new subsection 

(d) to section 546. Subsection (d) provides that if an appointment 

expires under subsection (c)(2), the district court for such district 

may appoint a United States Attorney to serve until the vacancy 

is filled. Pursuant to section 1 of the bill, the court must file the 

order of appointment with the clerk of the court. 

Section 1 further amends section 546 to add a new subsection (e). 

Subsection (e) provides that section 546 is the exclusive means for 

appointing an individual to temporarily perform the functions of a 

United States Attorney for a district in which the office of United 

States Attorney is vacant. 

Sec. 2. Applicability. Subsection (a) of this section provides that 

the amendments made by H.R. 580 shall take effect on the date of 

enactment of the bill. Subsection (b) of this section provides that 

any individual serving as a United States Attorney on the day before the date of the bill’s enactment who was appointed pursuant 

to section 546 may serve until the earlier of: (1) the qualification 

of a United States Attorney for that district appointed by the President pursuant to section 541; or (2) 120 days after the date of enactment of H.R. 580. If an interim appointment expires after such 

120-day period, the district court for the district concerned may appoint a United States Attorney for that district pursuant to section 

546(d), as added by H.R. 580. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italics, 

existing law in which no change is proposed is shown in roman): 

SECTION 546 OF TITLE 28, UNITED STATES CODE 

§ 546. Vacancies 

(a) * * * 

* * * * * * * 

ø(c) A person appointed as United States attorney under this section may serve until the qualification of a United States Attorney 


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for such district appointed by the President under section 541 of 

this title.¿ 

(c) A person appointed as United States attorney under this section may serve until the earlier of— (1) the qualification of a United States attorney for such district appointed by the President under section 541 of this title; 

or 

(2) the expiration of 120 days after appointment by the Attorney General under this section. 

(d) If an appointment expires under subsection (c)(2), 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. 

(e) This section is the exclusive means for appointing a person to 

temporarily perform the functions of a United States attorney for a 

district in which the office of United States attorney is vacant. 


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1Pub. L. No. 109–177 (2006). 

SUPPLEMENTAL VIEWS

Section 502 of the USA PATRIOT Improvement and Reauthorization Act of 2005 1 gave the Attorney General the authority to fill 

U.S. Attorney vacancies on an indefinite, interim basis, pending 

confirmation of new nominees by the Senate. Previously, the Attorney General could appoint interim U.S. Attorneys only for 120 

days, after which interim appointment authority passed to the district courts until new nominees were confirmed. 

The recent dismissals of eight U.S. Attorneys have triggered controversy over both the grounds for the dismissals and the Attorney 

General’s open-ended interim appointments authority. Allegations 

that these dismissals were motivated by partisan politics, not performance, have been voiced by Members of Congress and in the 

press. These allegations range from accusations that the Administration has tried to strike back at U.S. Attorneys pursuing public 

corruption cases to complaints that positions were being cleared for 

political favorites, such as a former White House staff member. 

There also have been allegations that the dismissals were made so 

that interim appointees, who under the new law could avoid the 

need for Senate confirmation, could serve until the end of the Administration. 

In the wake of these allegations, there have been calls both for 

oversight and for legislative action. H.R. 580, sponsored by Rep. 

Berman, would reinstitute the system which preceded the Patriot 

Act’s reauthorization. The Subcommittee on Commercial and Administrative Law held an extensive hearing on Tuesday, March 6, 

2007, into both H.R. 580 and the firings of the dismissed U.S. Attorneys. In light of recent emails made available by the Department of Justice, it appears likely that the Subcommittee will conduct more oversight on this issue in the coming weeks. The Minority remains committed to working with the Majority to ensure that 

all the facts of this case are made known to the American people. 

Much of the factual record remains undeveloped at this time. As 

recently as the day of the mark-up, news stories proffered new 

facts relating to the provision of the Patriot Act at issue. The fact 

that the record is in flux makes it difficult for the Minority to know 

what changes to the law, if any, are necessary in this instance. 

If changes are necessary, we would like to have worked with the 

majority in a bipartisan fashion to improve existing law. We believe that, permitted time to work together, we might have found 

a better solution. The rush to consider this legislation, however, 

has not allowed us to do so. 

Under regular order, this bill would have been referred to the 

Subcommittee on Commercial and Administrative Law for markup. There, as the facts were sifted with more deliberation, we 


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2See, e.g., United States v. Hilario, 218 F.3d 19, 27 (1st Cir. 2000) (‘‘[I]nsofar as interim 

United States Attorney are concerned, the Executive Branch holds all the trump cards. For one 

thing, the President may override the judges’ decision and remove an interim United States Attorney.’’). 3See id. at 21. 4 5 U.S.C. § 3345(a)(1). 

might have been able to avoid language that would have called for 

judges to appoint the very Executive Branch prosecutors practicing 

before them—judicial appointments that raise legal and practical 

concerns that we believe would have merited more consideration. 

In these times of the War on Terror and the continuing, age-old 

war on crime, the service of U.S. Attorneys—the front line of federal law enforcement—is all the more a matter of first importance 

to the nation. Their appointment and dismissal is serious business. 

Instead of rushing this legislation, we should have given it the 

time it deserves. In fact, Mr. Berman acknowledged at the hearing 

that ‘‘there may be reasons not’’ to enact his bill. Mr. Nadler, at 

the Committee’s mark-up, suggested that Congress could reinstate 

the interim appointment authority at some future date for some 

other President. Likewise, the Majority’s witnesses suggested that 

the more important issue here concerned expediting Presidential 

appointment and Senate confirmation of U.S. Attorneys. All of the 

witnesses acknowledged that the President could lawfully respond 

to the judicial appointments authorized by this bill by simply terminating the court-appointed interim U.S. Attorney, thus allowing 

the Attorney General to make a new 120-day appointment.2 Further, the Majority’s witnesses acknowledged that having a court 

appoint an interim U.S. Attorney does nothing to ensure that the 

President nominates and the Senate confirms a person to that position in an expeditious manner. The Majority’s witness, John 

Smietanka, cited the example of Puerto Rico, where former President Clinton allowed a court-appointed interim U.S. Attorney to sit 

for over six years without ever nominating a permanent replacement.3 These issues were not adequately addressed in the Majority’s rush to mark-up this bill. 

The practical concerns with this bill were highlighted by a last 

minute amendment offered by Rep. Sanchez. That amendment, 

which was adopted by the Majority, rendered unavailable the provisions of the Vacancy Reform Act 4 to allow for the temporary filling of U.S. Attorneys vacancies with all otherwise available individuals. 

This amendment would be an unwise departure from the rules 

applicable to all other similar positions in the government, would 

hinder the availability of all qualified individuals with needed 

background checks and security clearances to fill these vital positions, and would still further create an anomaly for this one set of 

positions, those of U.S. Attorneys. Nothing was developed in the 

record of the hearing to show that such a departure from the norm 

was necessary. 


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We are deeply disappointed that the opportunity to consider this 

bill in a more deliberate fashion was not afforded. Had it been afforded to us, this bill might have been improved in important ways 

or proven to be unnecessary. 

LAMAR SMITH. 

STEVE CHABOT. 

DANIEL E. LUNGREN. 

CHRIS CANNON. 

STEVE KING. 

TOM FEENEY. 

TRENT FRANKS. 


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ADDITIONAL SUPPLEMENTAL VIEWS

Many Members in the majority are clamoring for heads to roll, 

alleging the Bush Administration fired eight United States Attorneys using a little-noticed provision that was slipped into the PATRIOT Act Reauthorization Act in the middle of the night. Nothing 

could be further from the truth. 

The provision permitting the Attorney General to fill U.S. Attorneys positions on an indefinite interim basis, pending confirmation 

of new nominees by the Senate, was added during conference negotiations between the House and Senate. When Justice Department 

officials approached Congress with the U.S. Attorney provision, 

both Republican and Democratic staffers were present, including 

staffers from then-Ranking Democrat on the Senate Judiciary Committee Patrick Leahy, and Senator Kennedy. 

Under prior law, for almost two decades, the Attorney General 

was authorized to appoint an interim United States Attorney for 

120 days. If a permanent replacement was not nominated by the 

President and confirmed by the Senate at the end of 120 days, the 

chief judge of the federal district in which the vacancy occurred 

would appoint an interim prosecutor to serve until a permanent replacement was confirmed. 

The USA PATRIOT Improvement and Reauthorization Act of 

2005 amended this provision to give the Attorney General the sole 

authority to appoint interim U.S. Attorneys to serve indefinitely 

when vacancies occurred. 

The President’s constitutionally assigned duties include complete 

control over executive branch appointments, and that the inexorable command of Article II is clear and definite: the executive 

power must be vested in the President of the United States. Let me 

be clear, this provision was not added to the PATRIOT Act to be 

abused by the Justice Department. Rather, it was added to correct 

a flaw in the law that permitted the judicial branch to appoint U.S. 

Attorneys. 

In Buckley v. Valeo, the Supreme Court determined that the appointments clause permitted only the President, with the advice 

and consent of the Senate, to appoint officers to exercise executive 

authority. H.R. 580 flies in the face of this ruling. 

I will continue to work with my colleagues across the aisle to 

learn all the facts pertaining to the dismissal of the U.S. Attorneys. 

If we learn that some officials in the Administration acted improperly, there should be consequences for such behavior. 


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However, regardless of how the facts may play out in this circumstance, this Committee should not be dictating how executive 

branch officials are appointed, and the judiciary should not exercise 

executive powers. 

F. JAMES SENSENBRENNER, JR. 

Æ 


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