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[House Report 110-58]
[From the U.S. Government Publishing Office]

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

                             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 Northern 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\
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    \1\ See U.S. Dep't of Justice, United States Attorneys' Manual 
Sec. 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].
    \2\ See U.S. Dep't of Justice, United States Attorneys' Manual 
Sec. 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. Sec. 547 (2000).
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    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\
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    \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.
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    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\
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    \6\ 28 U.S.C. Sec. 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, Sec. 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. Sec. 541(b) (2000).
    \8\ Id.
    \9\ 28 U.S.C. Sec. 541(c) (2000).
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    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 the 
Senator or other official.\14\ This tradition, called 
``Senatorial courtesy,'' serves as an additional, informal 
check on the President's appointment power.\15\
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    \10\ Wiener, supra note 4, at 397.
    \11\ Id. at 393; Bell & Meador, supra note 6, at 249.
    \12\ Id.
    \13\ Wiener, supra note 4, at 394.
    \14\ Id.
    \15\ Id.
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       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\
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    \16\ Act of March 3, 1863, ch. 93, Sec. 2, 12 Stat. 768 (1863).
    \17\ Pub. L. No. 89-554, Sec. 4(c), 80 Stat. 618 (1966).
    \18\ Id.
---------------------------------------------------------------------------
    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\
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    \19\ Pub. L. No. 99-646, Sec. 69, 100 Stat. 3616 (1986) (codified 
as 28 U.S.C. Sec. 546(d) (2000), repealed by USA PATRIOT Improvement 
and Reauthorization Act of 2005, Pub. L. No. 109-177, title V, 
Sec. 502, 120 Stat. 246 (2006)).
    \20\ Id.
    \21\ Wiener, supra note 4, at 399 (citing interview with David 
Margolis and Bernie Delia, Associate Deputy Attorneys General, in 
Washington, D.C. (Dec. 28, 2000)).
---------------------------------------------------------------------------
    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\
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    \22\ USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. 
L. No. 109-177, tit. V, Sec. 502, 120 Stat. 246 (2006).
    \23\ Id.
---------------------------------------------------------------------------
    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 a possible 
loophole that could permit United States Attorneys appointed on 
an interim basis to serve indefinitely without Senate 
confirmation.
---------------------------------------------------------------------------
    \24\ Id.
    \25\ Id.
---------------------------------------------------------------------------
    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\
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    \26\ H.R. Rep. No. 109-333, at 109 (2006).
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         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\
---------------------------------------------------------------------------
    \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).
    \28\ Preserving 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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \29\ Id.

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\
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    \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).
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    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 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\
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    \31\ Id.
    \32\ Preserving 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).
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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\
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    \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).
---------------------------------------------------------------------------
    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 Sec. 546.'' 
\37\
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    \34\ Id.; Pub. L. No. 105-277, div. C, tit. 1, Sec. 151, 112 Stat. 
2681, 2681-611 (1998) (codified at 5 U.S.C. Sec. Sec. 3345-49d (2000)).
    \35\ 5 U.S.C. Sec. 3345 (2000).
    \36\ 5 U.S.C. Sec. 3346 (2000). Section 3346 provides:

  G(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 
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in the office--

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

  G(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.

  G(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.

  G(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.

  G(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.
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        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:
---------------------------------------------------------------------------
    \38\ See, 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.

         LH.E. Cummins, III, United States Attorney for 
        the Eastern District of Arkansas; \39\
---------------------------------------------------------------------------
    \39\ Dan 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.

         LJohn McKay, United States Attorney for the 
        Western District of Washington; \40\
---------------------------------------------------------------------------
    \40\ Dan 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).

         LDavid C. Iglesias, United States Attorney for 
        the District of New Mexico; \41\
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    \41\ David 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.

         LPaul K. Charlton, United States Attorney for 
        the District of Arizona; \42\
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    \42\ Dennis 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.

         LCarol C. Lam, United States Attorney for the 
        Southern District of California; \43\
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    \43\ Kelly 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 
Union-Trib., Jan. 12, 2007, at A1.

         LDaniel Bogden, United States Attorney for the 
        District of Nevada; \44\
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    \44\ Sam 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.

         LKevin Ryan, United States Attorney for the 
        Northern District of California; \45\ and
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    \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.

         LMargaret M. Chiara, United States Attorney 
        for the Western District of Michigan.\46\
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    \46\ Dan 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.

    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\
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    \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).
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    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.
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    \49\ David 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
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    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\
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    \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).
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    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 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\
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    \52\ See, 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).
    \53\ See, 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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------

                                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; 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.
        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 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. Sec. 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. Sec. 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

Sec. 546. Vacancies

  (a) * * *

           *       *       *       *       *       *       *

  [(c) 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.]
  (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.
                           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.
---------------------------------------------------------------------------
    \1\ Pub. L. No. 109-177 (2006).
---------------------------------------------------------------------------
    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 mark-
up. There, as the facts were sifted with more deliberation, we 
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.
---------------------------------------------------------------------------
    \2\ See, 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.'').
    \3\ See id. at 21.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \4\ 5 U.S.C. Sec. 3345(a)(1).
---------------------------------------------------------------------------
    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.
    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.
                     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.
    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.

                                  

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