99–010 

Calendar No. 76 

112TH CONGRESS REPORT " ! SENATE 1st Session 112–23 

A BILL TO EXTEND THE TERM OF THE INCUMBENT 

DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION 

JUNE 21 (legislative day, JUNE 16), 2011.—Ordered to be printed 

Mr. LEAHY, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

[To accompany S. 1103] 

[Including cost estimate of the Congressional Budget Office] 

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

(S. 1103), to extend the term of the incumbent Director of the Federal Bureau of Investigation (FBI), having considered the same, reports favorably thereon, with an amendment, and recommends that 

the bill, as amended, do pass. 

CONTENTS 

Page 

I. Background and Purpose of the Bill ............................................................ 1 

II. History of the Bill and Committee Consideration ....................................... 11 

III. Section-by-Section Summary of the Bill ...................................................... 12 

IV. Congressional Budget Office Cost Estimate ................................................ 13 

V. Regulatory Impact Evaluation ...................................................................... 13 

VI. Conclusion ...................................................................................................... 14 

VII. Changes to Existing Law Made by the Bill, as Reported ........................... 14 

VIII. Appendix ......................................................................................................... 16 

I. BACKGROUND AND PURPOSE OF THE BILL

On May 12, 2011, the President announced that he was seeking 

a two-year extension of the term of FBI Director Robert S. Mueller, 

III. The President requested that Congress provide a limited exception to the statutory limit of 10 years on the service of the FBI Director. 


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1S. 603, 88th Cong., 1st Session (1963); and S. 313, 89th Cong., 1st Session (1965). 

2Omnibus Crime Control Act and Safe Streets Act of 1968, Pub. L. No. 90–3351 (Jun. 19, 

1968). 

A. BACKGROUND

1. Director Mueller’s Initial Nomination Process 

Robert Mueller was nominated by President George W. Bush on 

July 18, 2001. The Judiciary Committee received Mr. Mueller’s paperwork on July 24, 2001. The Committee held a hearing and favorably reported the nomination to the Senate on August 2, 2001. 

The Senate confirmed him that same day by a vote of 98–0. President Bush signed his appointment to a 10-year term on August 4, 

2001. 

Director Mueller was well qualified for the position of FBI Director at the time he was first nominated. Director Mueller served as 

the United States Attorney in both Massachusetts and Northern 

California. In all, he spent 12 years in United States Attorney’s Offices. In his capacity as a Federal prosecutor, he handled cases on 

major financial fraud, terrorism, public corruption, narcotics conspiracies, and international money laundering. Director Mueller 

also served as the Assistant Attorney General for the Criminal Division at the Justice Department, and as the acting Deputy Attorney General at the beginning of the George W. Bush administration. 

Director Mueller served for three years in the United States Marine Corps. He led a rifle platoon in Vietnam and earned a Bronze 

Star, two Navy Commendation Medals, the Purple Heart, and the 

Vietnamese Cross of Gallantry. Director Mueller graduated from 

Princeton University, earned a master’s degree in International Relations at New York University, and a law degree from the University of Virginia Law School. 

After a medical procedure in August 2001, Director Mueller assumed leadership of the FBI in early September 2001. A week 

later, the United States was attacked on September 11, 2001. Director Mueller has served our nation for the 10 years following 

9/11 and has helped trasnform the agency into an effective counterterrorism organization. 

2. Legislative History of the Ten-Year Term Limit of the FBI Director 

The FBI was formed in 1908 as a Bureau within the Department 

of Justice. The leader of the FBI has been titled ‘‘Director’’ since 

1919, and has answered directly to the Attorney General since the 

1920s. In 1924, J. Edgar Hoover was selected as FBI Director not 

by the President, but by Attorney General Harlan Fiske Stone. 

Born in 1895, Mr. Hoover served as Director until his death in 

1972, at the age of 77, a total of 48 years. 

The Senate twice passed bills to require a presidential appointment of the FBI Director,1 but those bills did not pass in the House 

of Representatives. In 1968, as part of the Omnibus Crime Control 

Act and Safe Streets Act of 1968, Congress finally mandated that 

the FBI Director be appointed by the President and confirmed by 

the Senate.2

In a 1974 report on a bill to provide for a 10-year term of the 

Director, the Senate Judiciary Committee discussed the need for 


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3 ‘‘Ten-Year Term for the FBI Director,’’ U.S. Senate Committee on the Judiciary, S. Rep. No. 

93–1213 (93rd Cong., 2nd Session), at 2. 4 Id., at 2–3. 5Pub. L. No. 94–503; 28 U.S.C. § 532 note (Oct. 15, 1976). 

6Statement of the White House, ‘‘President Obama Proposes Extending Term for FBI Director 

Robert Mueller,’’ May 12, 2011, available at http://www.whitehouse.gov/the-press-office/2011/05/ 

12/president-obama-proposes-extending-term-fbi-director-robert-mueller. 7 Id. 

the FBI Director to maintain a proper balance between responsiveness to the Executive Branch and independence from any unreasonable requests made by superior officials.3 The report continued: 

No institutional arrangement can guarantee with certainty 

that any official will exercise governmental authority with 

integrity and good judgment. Nevertheless, there are especially sensitive positions which require the greatest care 

on the part of Congress in creating an environment for the 

responsive use of power. It is the great value of the FBI 

as a criminal investigative agency, as well as its dangerous 

potential for infringing individual rights and serving partisan or personal ambitions, that makes the office of the 

FBI Director unique.4

In 1976, Congress passed a law limiting the service of an FBI Director to a single term of 10 years.5 Senator Robert Byrd of West 

Virginia was the lead sponsor of this legislation. He had initially 

proposed a 10-year term with the possibility of re-appointment for 

a second 10-year term. After considering possible alternatives, including a 10-year term with the possibility of a five-year renewal 

term, Senator Byrd ultimately decided that 10 years was sufficient. 

3. The President’s Request for a Two-Year Extension 

President Obama explained in a May 12, 2011, statement: ‘‘Given 

the ongoing threats facing the United States, as well as the leadership transitions at other agencies like the Defense Department and 

Central Intelligence Agency, I believe continuity and stability at 

the FBI is critical at this time.’’ 6 The President asked Congress ‘‘to 

join together in extending that leadership for the sake of our nation’s safety and security.’’ 7

The President’s request was made at a time of considerable 

change in leadership in key national security positions of the U.S. 

Government. Secretary of Defense Robert M. Gates announced his 

retirement, and Leon Panetta, who was then the Director of Central Intelligence, was nominated to replace him. General David 

Petraeus was nominated to succeed Mr. Panetta as the Director of 

Central Intelligence. On May 30, 2011, the President nominated 

Army Gen. Martin Dempsey to be Chairman of the Joint Chiefs of 

Staff. The Director of the National Counterterrorism Center, Michael E. Leiter, announced his intention to step down in July 2011. 

In addition, the nominations of two critical nominees to the Department of Justice with national security responsibilities remain pending: James Cole, nominated to serve as Deputy Attorney General, 

and Lisa Monaco, nominated to serve as Assistant Attorney General for the National Security Division. 


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8The President’s Request to Extend the Service of Director Mueller of the FBI until 2013: 

Hearing before the S. Comm. on the Judiciary, 112th Cong. (June 8, 2011) (statement of Robert 

S. Mueller, III, Director of the FBI, at 1). 9 Id. at 1–2. 10The President’s Request to Extend the Service of Director Mueller of the FBI until 2013: 

Hearing before the S. Comm. on the Judiciary, 112th Cong. (June 8, 2011) (statement of James 

B. Comey, former Deputy Attorney General, at 2). 

4. The Current Threat Environment and Need for Continuity in 

Leadership of the FBI 

On May 12, 2011, the President stated: 

Bob [Mueller] transformed the FBI after September 11, 

2001 into a pre-eminent counterterrorism agency, he has 

shown extraordinary leadership and effectiveness at protecting our country every day since. He has impeccable law 

enforcement and national security credentials, a relentless 

commitment to the rule of law, unquestionable integrity 

and independence, and a steady hand that has guided the 

Bureau as it confronts our most serious threats. I am 

grateful for his leadership, and ask Democrats and Republicans in Congress to join together in extending that leadership for the sake of our nation’s safety and security. 

The threats against the United States are expected to increase 

around the tenth anniversary of the September 11, 2001 attacks. 

Indeed, evidence collected at the compound in Abbottabad, Pakistan, that served as bin Laden’s hideout demonstrated that al 

Qaeda was planning to make attempts on American soil in connection with the tenth anniversary of the September 11, 2001 attacks. 

Accordingly, anxiety has heightened in light of the successful operation against Osama bin Laden on May 1, 2011, and recent threats 

of retaliation against the United States. 

The Committee heard testimony about these threats from Director Mueller and others. In the June 8, 2011, hearing on the requested extension of his term, Director Mueller testified: 

The FBI has never faced a more complex threat environment than it does today. Over the past year, we have seen 

an extraordinary array of national security and criminal 

threats from terrorism, espionage, cyber attacks, and traditional crimes. These threats have ranged from attempts 

by al Qa’ida and its affiliates to place bombs on airplanes 

bound for the United States to lone actors seeking to detonate [improvised explosive devices] in public squares and 

subways intent on mass murder.8

Director Mueller also spoke of the threat posed by radical ‘‘adversaries, like Anwar Alaqui, who are engaged in efforts to radicalize 

people in the United States to commit acts of terrorism.’’ 9 In addition to terrorist threats, Director Mueller testified to threats from 

organized crime, drug cartels, fraud, and a host of others. 

At the same hearing, former Deputy Attorney General James B. 

Comey echoed Director Mueller’s assessment. Mr. Comey stated 

that, ‘‘the combination of the successful raid on Bin Laden’s compound and the approaching 10th anniversary of 9/11 creates an unusual threat environment.’’ 10


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11 Id. at 1. 12 New York Times, ‘‘Bin Laden’s No. 2, Zawahiri, Takes Control of Al Qaeda,’’ June 15, 2011. 

Mr. Comey also discussed the value in keeping Director Mueller 

in place as Director at this particularly challenging moment in 

time. He stated: 

There is never a great time to change Directors. Something is always lost in a transition, as a new leader comes 

to know the threats, and understand the capabilities of 

those around him. But there are bad, and even potentially 

dangerous, times to change Directors, and this is one of 

them.11

While the exact plans of al Qaeda have not been revealed, intervening events suggest that the threat from the terrorist group has 

not subsided. On June 15, 2011, the general command of al Qaeda, 

announced that Sheikh Ayman al-Zawahiri would take control of 

the leadership of the organization. Al-Zawahiri was indicted in the 

1998 embassy bombings in East Africa and has called for attacks 

on American targets.12

B. PURPOSE

1. Congressional Response to the President’s Request 

The Senate responded to the President’s request to extend the 

term of Director Mueller on May 26, 2011, by introducing a narrowly drafted bipartisan bill, S. 1103, that would authorize an extension of the 10-year term of the FBI Director. The bill was cosponsored by the Chairman and Ranking Member of the Senate 

Committee on the Judiciary and the Chairman and Vice Chairman 

of the Senate Select Committee on Intelligence. House Judiciary 

Committee Chairman Lamar Smith (R–TX) and Senate Minority 

Leader Mitch McConnell (R–KY) have both publicly expressed support for President Obama’s decision to extend Director Mueller’s 

term for an additional two years. 

Senator Grassley, the Judiciary Committee’s Ranking Member, 

requested a full Committee hearing on the matter on behalf of certain members of the minority of the Judiciary Committee, and the 

Chairman scheduled such a hearing on June 8, 2011. 

2. The Reported Bill Does Not Represent any Intent to Affect the 

President’s Plenary Removal Authority 

In response to some concerns voiced in that hearing, Chairman 

Leahy prepared a substitute amendment that emphasized in Findings that the bill was a direct response to the President’s request, 

which the Congress found to be appropriate in light of the need for 

continuity and stability at the FBI in the face of ongoing threats 

to the United States. The substitute was adopted by the Judiciary 

Committee and reported favorably to the Senate. The bill reported 

by the Judiciary Committee does not diminish in any manner the 

President’s authority to remove a Director of the FBI. The bill 

makes clear that the incumbent FBI Director may continue to 

serve only at the request of the President. Current law and policy 

on that matter will in no way be affected if S. 1103 is enacted into 

law. The sitting FBI Director agrees. In the June 8, 2011, hearing, 

Senator Grassley asked Director Mueller, ‘‘As director of the FBI 


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13The President’s Request to Extend the Service of Director Mueller of the FBI until 2013: 

Hearing before the S. Comm. on the Judiciary, 112th Cong. (June 8, 2011) (testimony of Robert 

S. Mueller, III). 14 U.S. Const., art II, § 2. 15See Buckley v. Valeo, 424 U.S. 1, 126 (1976). 

with a fixed term, under what circumstances can the president remove you?’’ Director Mueller responded, ‘‘I think I serve at the 

pleasure of the president.’’ 13

3. The Reported Bill Represents a One-Time Exception to the TenYear Statutory Term Limit 

The substitute makes clear in the Findings that the President 

has requested only a one-time exception to the 10-year term limit, 

and that such an extension is based upon the exceptional circumstances facing the Nation at this time. The findings state explicitly that the bill is not intended to create a precedent. That intent has also been stated by the bill’s sponsors. By allowing the 

term of the Director to be extended this once, from 10 years to 12, 

the bill would have no effect on the nature of the fixed term appointment. 

4. The Reported Bill Is Not Intended to Assert Any Congressional 

Power to Appoint Executive Officers 

In this bill, Congress asserts no authority to appoint officials in 

violation of the President’s appointment authority. The findings 

and the operative text of the bill both state clearly that the extension of the Director’s term is authorized by Congress at the request 

of the President. The bill also makes clear that such authorization 

is directly linked to the President’s request and the justifications 

provided for that request. It is effective in authorizing an extended 

term, but implemented as the President determines. 

C. CONSTITUTIONAL CONCERNS RAISED

During the course of the Committee’s consideration of this bill, 

some raised concerns that the legislation could be vulnerable to 

constitutional challenges and protracted litigation. The notion that 

enactment of this legislation would somehow impinge upon the authority of the President under the Appointments Clause to choose 

his own nominee to be Director of the FBI is incorrect. Given that 

this legislation was expressly requested by the President in order 

that the President’s choice for FBI Director—Robert S. Mueller 

III—could continue in office, and that it does nothing to diminish 

the President’s authority to remove the FBI Director at will, such 

concerns lack merit. 

1. Constitutional and Legal Framework 

The Appointments Clause states that the President ‘‘shall nominate, and by and with the Advice and Consent of the Senate, shall 

appoint Ambassadors, other public Ministers and Consuls, Judges 

of the supreme Court and all other Officers of the United States, 

whose Appointments are not herein otherwise provided for, and 

which shall be established by Law.’’ 14 Accordingly, the Supreme 

Court has held that the Appointments Clause prohibits Congress 

from independently exercising the power to appoint ‘‘Officers of the 

United States.’’ 15


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16See Attorney General and Office of Legal Counsel opinions in Appendix. 17See 41 U.S. Op. Atty. Gen. 88 (1951). 18 Id. at 90 (internal citations omitted). 19 Id. The opinion continued by citing several precedents of this type of ‘‘joint action by the 

Executive and the Congress.’’ 41 U.S. Op. Atty. Gen. 88, 90 (1951). These precedents included 

the legislative extensions of the terms of office for five Commissioners of the Atomic Energy 

Commission in 1948, as well as the 1948 extension of the terms of office for directors of the 

Reconstruction Finance Corporation. Id. at 91. 20See Constitutionality of Legislation Extending the Terms of Office of United States Parole 

Commissioners, 18 U.S. Op. Off. Legal Counsel 166 (1994). 21 Id. at 168. 22 Id. (emphasis added). 23 Id. (emphasis added). The 1994 OLC opinion expressly rejected and withdrew a prior 1987 

opinion that reached a different conclusion regarding the constitutionality of similar legislative 

extensions. Citing the 1987 opinion’s lack of credible reasoning and the fact that the 1987 opinion ran counter to a long-standing OLC position, the 1994 OLC opinion deemed the 1987 opinion 

as ‘‘irredeemably unpersuasive.’’ 18 U.S. Op. Off. Legal Counsel 166 note 3 (1994). 

The Appointments Clause is not offended, however, when Congress merely acts to extend the term of service of an executive 

branch officer who serves at the pleasure of the President, particularly when Congress acts at the specific request of the President. 

This basic principle has been reaffirmed on several occasions by the 

Department of Justice through legal opinions dating back six decades.16 In 1951, for example, the Attorney General’s office issued 

an opinion affirming the constitutionality of an amendment that 

extended the terms of members of the Displaced Persons Commission, which Congress had created through statute in 1948.17 Writing in response to an inquiry by the President whether the amendment constituted ‘‘an infringement on the President’s constitutional 

power of appointment,’’ the opinion concluded that the legislation 

presented ‘‘no constitutional difficulties,’’ and instead was ‘‘an example of the Congress and the Executive acting in cooperation.’’ 18

Central to this conclusion was the fact that nothing in the legislation required the President to continue the incumbent commissioners in office. Accordingly, the opinion affirmed ‘‘the power of 

the Congress to extend the terms of offices which it has created, 

subject, of course, to the President’s constitutional power of appointment and removal.’’ 19

The Office of Legal Counsel of the Department of Justice issued 

a similar opinion in 1994, this time assessing the constitutionality 

of a legislative extension of the terms of members of the United 

States Parole Commission.20 In its opinion, the Office of Legal 

Counsel acknowledged the potential tension that arises when Congress extends the term of an office and seeks to apply the extension 

to an incumbent officeholder.21 The opinion noted that a law extending the tenure of an officer whom the President may remove 

only ‘‘for cause’’ was a ‘‘classic example’’ of legislation that runs 

afoul of the Appointments Clause.22 Conversely, when Congress 

passes legislation ‘‘that extends the term of an office, including its 

incumbent, the holder of which is removable at will,’’ the opinion 

noted the longstanding position of the Office of Legal Counsel and 

the Department of Justice that ‘‘there is no violation of the Appointments Clause, for here the President remains free to remove 

the officer and embark on the process of appointing a successor— 

the only impediment being the constitutionally sanctioned one of 

Senate confirmation.’’ 23

This conclusion was reiterated by the Office of Legal Counsel in 

a 1996 memorandum providing an overview of constitutional sepaVerDate Mar 15 2010 23:46 Jun 23, 2011 Jkt 099010 PO 00000 Frm 00007 Fmt 6659 Sfmt 6602 E:\HR\OC\SR023.XXX SR023

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24See The Constitutional Separation of Powers Between the President and Congress, 20 U.S. 

Op. Off. Legal Counsel 124 (1996). 25 Id. 26 Id. Even when dealing with legislative extensions of the tenures of officers removable only 

for cause, the 1996 OLC memorandum urged a ‘‘functional analysis’’ that assessed whether the 

legislation had ‘‘the practical effect of frustrating the President’s appointing authority or 

amount[ed] to a congressional appointment.’’ 20 U.S. Op. Off. Legal Counsel 124 (1996). Referencing a 1994 OLC opinion concerning the extension of terms of members of the United States 

Sentencing Commission, the 1996 OLC memorandum noted that even where a statute extends 

the terms of officers removable only for cause, the statute might still not function to violate the 

President’s appointment power. Id. (citing Whether Members of the Sentencing Commission Who 

Were Appointed Prior to the Enactment of a Holdover Statute May Exercise Holdover Rights Pursuant to the Statute, 18 Op. Off. Legal Counsel 33 (1994)). Notably, the 1994 OLC opinion regarding the Sentencing Commission noted that the effect of that legislation could actually have 

been to augment the President’s power by giving him ‘‘the option of retaining the holdover officer until he chooses to nominate a successor.’’ 18 Op. Off. Legal Counsel 33 (1994) (emphasis 

added). 27 Constitutionality of Legislation Extending the Term of the FBI Director, ll U.S. Op. Off. 

Legal Counsel ll, 2–3 (June 20, 2011). 28 Congressional Research Service, FBI Directorship: History and Congressional Action, CRS 

Report R41850, June 7, 2011, (hereinafter ‘‘CRS Report’’). 29 Id., at 5–6, 11. 30 Id., at 7. 31 In re Benny, 812 F.2d 1133, 1141 (9th Cir. 1987). Some have cited to Judge Norris’s concurring opinion in In re Benny as support for the argument that legislation like S. 1103 violates 

the Appointments Clause. The facts of In re Benny are distinguishable from the instant case 

in important respects. First, in the case of the bankruptcy judges at issue in In re Benny, the 

President did not—as he has with Director Mueller—specifically request that the judges continue serving. Second, Judge Norris himself noted that bankruptcy judges under the relevant 

statute could only be removed for ‘‘incompetence, misconduct, neglect of duty or physical or menration of powers issues.24 In the 1996 memorandum, the Office of 

Legal Counsel reaffirmed the approach taken in its 1951 opinion 

regarding members of the Displaced Persons Commission, stating 

that ‘‘the extension of tenure of officers serving at will raises no 

Appointments Clause problem.’’ 25 Indeed, the OLC memorandum 

labeled as ‘‘constitutionally harmless’’ legislation that extends the 

term of an officer who is subject to removal at will.26

On June 20, 2011, the Office of Legal Counsel issued a memorandum opinion expressly reaffirming the ‘‘longstanding’’ view that 

‘‘Congress, by extending an incumbent officer’s term, does not displace and take over the President’s appointment authority, as long 

as the President remains free to remove the officer at will and 

make another appointment.’’ 27

Much of this constitutional analysis and historical precedent has 

been summarized by the Congressional Research Service (CRS) in 

a report titled FBI Directorship: History and Congressional Action, 

included in the Appendix to this report.28 The CRS report details 

the historical ‘‘precedent of not formally re-appointing an individual whose term of office is to be extended.’’ 29 In addition, the 

CRS report notes that ‘‘[c]onstitutional analysis of an extension of 

[an officer’s] term depends on how the extension reads and whether 

the President would retain the plenary authority to remove [that 

officer].’’ 30 Significantly, in its review of relevant case law and 

other legal authorities, CRS was apparently unable to identify a 

single case, opinion, or other legal authority to support the notion 

that a legislative extension such as S. 1103 might violate the Appointments Clause. On the other hand, CRS identified the case of 

In re Benny, in which the United States Court of Appeals for the 

Ninth Circuit concluded: ‘‘Congress may prospectively alter terms 

of office without running afoul of the Appointments Clause,’’ adding 

that this power to extend terms of office ‘‘can be implied from its 

power to add to the duties that are germane to its original duties.’’ 31


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tal disability.’’ 812 F.2d 1133, 1143 note 5. Accordingly, given that the FBI Director is unquestionably serving the President at will, reliance on Judge Norris’s concurring opinion is misplaced. 32 Constitutionality of Legislation Extending the Terms of Office of United States Parole Commissioners, 18 U.S. Op. Off. Legal Counsel 166, 171 (1994). 33See, e.g., 41 U.S. Op. Atty. Gen. 88, 90 (1951). 34Oral testimony of Robert S. Mueller, III, June 8, 2011, Hearing before the Senate Judiciary 

Committee. 35 CRS Report at 9. 36 Constitutionality of Legislation Extending the Term of the FBI Director, ll U.S. Op. Off. 

Legal Counsel ll, 3 (June 20, 2011) (internal citation omitted). 37 ‘‘Ten-Year Term for the FBI Director,’’ U.S. Senate Committee on the Judiciary, S. Rep. No. 

93–1213 (93rd Cong., 2nd Session), at 6. 

Taking into account the various opinions from the Department of 

Justice spanning 60 years, the operative constitutional and legal 

premise remains clear: ‘‘Legislation extending the term of an officer 

who serves at will does not violate the Appointments Clause.’’ 32

2. Constitutionality of S. 1103—No Appointments Clause Concern 

The bill to extend the term of the incumbent FBI Director by two 

years, S. 1103, is constitutionally sound and an example of the type 

of ‘‘joint action by the Executive and the Congress’’ deemed legitimate by the Office of Legal Counsel on a number of prior occasions.33 The President has expressly requested that Congress enact 

legislation enabling the incumbent FBI Director to serve an additional two years, and the bill does just that without impinging in 

any way on the President’s plenary authority to remove the FBI 

Director at will. In light of the legal opinions from the Department 

of Justice dating back six decades, as well as the relevant case law, 

the constitutionality of the bill cannot seriously be questioned. 

As an initial matter, the bill makes clear that the incumbent FBI 

Director may continue to serve only at the request of the President, 

and does nothing to diminish in any way the President’s removal 

authority under the Constitution. As Director Mueller himself testified at the June 8, 2011, hearing, his service as FBI Director continues only ‘‘at the pleasure of the President.’’ 34 That will remain 

true after enactment of this legislation. The CRS Report referenced 

above also concluded that ‘‘the President may remove the Director 

of the FBI at will,’’ and cited the firing of FBI Director William 

Sessions in July 1993 by President Clinton as an example.35 The 

Office of Legal Counsel recently reaffirmed this conclusion unequivocally, noting that ‘‘the FBI Director is removable at the will 

of the President.’’ 36

Perhaps most instructive on this point is the legislative history 

of the statute establishing the 10-year term limit on the FBI Director. In a 1974 committee report on the FBI Director term limit bill 

pending at the time (S. 2106), the Senate Judiciary Committee concluded: ‘‘The bill does not place any limit on the formal power of 

the President to remove the FBI Director from office,’’ and that the 

‘‘Director would be subject to dismissal by the President, as are all 

purely executive officers.’’ 37 Moreover, since enactment of the 10- 

year term limit on the FBI Director in 1976, there have been no 

laws enacted or cases decided imposing any type of removal restrictions on the President with regard to the FBI Director, such that 

the functional analysis described in Morrison v. Olson, would be required. Put simply, the President can decide to replace the FBI Director at any time, for any reason. 


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38See Constitutionality of Legislation Extending the Term of the FBI Director, ll U.S. Op. 

Off. Legal Counsel ll, 4 (June 20, 2011) (‘‘Director Mueller holds an office, and if his term 

is extended by Congress, he will continue to hold that office by virtue of an appointment by 

President Bush, with the advice and consent of the Senate, in strict conformity with the requirements of the Appointments Clause.’’) 39The testimony of Professor John Harrison fails to account for these facts or considerations, 

nor does Professor Harrison affirmatively cite a single authority supporting his views. The President’s Request to Extend the Service of Director Mueller of the FBI until 2013: Hearing before 

the S. Comm. on the Judiciary, 112th Cong. (June 8, 2011) (statement of John Harrison, Professor of Law, University of Virginia). Indeed, the June 20, 2011 memorandum opinion by the 

Office of Legal Counsel specifically addresses and rejects the arguments made by Professor Harrison. See Constitutionality of Legislation Extending the Term of the FBI Director, ll U.S. Op. 

Off. Legal Counsel ll, 4–6 (June 20, 2011). 

In light of the President’s plenary authority to remove the incumbent FBI Director, no credible argument can be made that Congress, through this legislation, might somehow infringe upon the 

President’s constitutional appointment power. To the contrary, this 

bill responds directly to the President’s request for legislation that 

would allow him to continue exercising his appointment power; in 

other words, to keep as FBI Director the individual that the President wants to serve in that position. Common sense and a plain 

reading of the relevant legal precedents demonstrates that an Appointments Clause problem arises when Congress acts in a way 

that imposes its will upon the Executive, installing or keeping in 

office an individual whom the President did not choose and cannot 

remove. That is not the case here. The President has chosen Director Mueller to lead the FBI for the next two years, but the President can also decide to remove him at any time. The removal authority is a prerogative of the Executive, and nothing in this bill 

changes that. Through enactment of S. 1103, Congress would simply provide the statutory exemption needed for Director Mueller to 

continue his public service as head of the FBI.38

As specifically set forth in the text of S. 1103, Congress cannot 

by itself cause Director Mueller to begin another two years as head 

of the FBI, just as Congress cannot in any way guarantee that Director Mueller will remain in office for the entire two years. Instead, Section 2(a) of S. 1103 provides that the incumbent FBI Director may continue in office, but only at the request of the President. Similarly, the bill imposes no limit on the authority of the 

President to remove the current incumbent FBI Director at any 

time. Thus, while Congress may provide the statutory mechanism 

that allows Director Mueller to continue serving past August 3, 

2011, his continued service is contingent upon a request by the 

President, as well as his prerogative to choose a successor at any 

time. As such, the provisions of this bill do not in any way usurp 

the President’s appointing authority.39

3. Unfounded Fears of Litigation 

Without citation to a single court opinion that has found legislation similar to S. 1103 to be of any constitutional concern, opponents of the bill argue that enactment of the bill would give rise 

to a spate of litigation that could mire the FBI in protracted lawsuits and cast uncertainty on the legitimacy of the FBI Director’s 

actions during his extended term. These concerns are unfounded. 

Congress should not pursue legislation that would unduly hamper the law enforcement, counterterrorism, and intelligence functions of the FBI. During the June 8, 2011 hearing, however, when 

Director Mueller was asked by Senator Coburn to comment on the 


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40The President’s Request to Extend the Service of Director Mueller of the FBI until 2013: 

Hearing before the S. Comm. on the Judiciary, 112th Cong. (June 8, 2011) (testimony of Robert 

S. Mueller, III). 

possible risk of constitutional challenges as a result of this bill, he 

responded as follows: 

I have heard nothing in my discussions with the Department [of Justice] or otherwise of a constitutional issue that 

would make that a problem down the road. If that were a 

substantial problem, quite obviously, then I would be concerned. But I have not heard that to be the case.40

Aside from speculation based on unfounded constitutional arguments, there has been nothing presented to the Committee that 

would suggest any operational concerns with the bill. The FBI has 

presented no operational concerns. 

The lack of any real litigation risk is underscored by the fact that 

the Director of the FBI has only limited direct involvement with 

the routine investigatory and surveillance functions of the Bureau. 

Those functions are typically carried out by Special Agents who 

perform their duties in their own capacity as duly sworn law enforcement agents with arrest authority. Accordingly, the risk of litigation from defendants in criminal cases and targets of national security investigations is virtually nonexistent, given that the Director is not typically the affiant on search warrants, wiretap applications, or criminal complaints, nor does he typically provide supervisory authorization for routine investigatory techniques. Similarly, 

unlike Federal prosecutors in the U.S. Attorney’s Offices or elsewhere in the Department of Justice, the FBI Director does not have 

any direct involvement with the prosecution of defendants. Thus, 

concerns about possible litigation and the effect on the ability of 

the FBI to function are purely speculative and unfounded. 

II. HISTORY OF THE BILL AND COMMITTEE CONSIDERATION

A. INTRODUCTION OF THE BILL

A bill to extend the term of the incumbent Director of the Federal Bureau of Investigation, S. 1103, was introduced on May 26, 

2011, by Chairman Leahy, Senator Grassley, Senator Feinstein, 

and Senator Chambliss. 

B. HEARING

On June 8, 2011, the Committee convened a hearing titled ‘‘The 

President’s Request to Extend the Service of Director Mueller of 

the FBI until 2013.’’ Director Mueller testified on the first panel, 

describing threats to the United States and his efforts over the 

past 10 years to reform the FBI. 

A second panel of witnesses included James B. Comey, former 

Deputy Attorney General, now with Bridgewater Associates, who 

spoke of the need for continuity of leadership at the FBI in light 

of the continuing threats facing the United States. Mr. Comey also 

praised Director Mueller’s leadership of the agency and his achievements in transforming the FBI from a domestic criminal investigative agency into one that is equally devoted to intelligence and the 

prevention of terrorist attacks. 


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41The President’s Request to Extend the Service of Director Mueller of the FBI until 2013: 

Hearing before the S. Comm. on the Judiciary, 112th Cong. (June 8, 2011) (statement of William 

Van Alstyne, Lee Professor of Law, Marshall-Wythe Law School, at 1). 

The second panel also included testimony from William Van 

Alstyne, Lee Professor of Law at the Marshall-Wythe Law School, 

who stated that the bill, S. 1103, is ‘‘clearly constitutionally sufficient.’’ 41 Finally, the Committee heard testimony from John C. 

Harrison, Professor of Law, at the University of Virginia. 

C. LETTERS OF SUPPORT

The Committee received letters in support of the extension of Director Mueller’s term from the National Fraternal Order of Police, 

the National Association of Police Organizations, and the International Association of Chiefs of Police. See Appendix. 

D. EXECUTIVE BUSINESS MEETING

The bill, S. 1103, was placed on the agenda for an Executive 

Business Meeting on June 9, 2011, but was held over for one week. 

It was considered by the Committee on June 16, 2011. 

Chairman Leahy offered a substitute amendment to S. 1103, 

which contained findings and an extension of the incumbent Director’s term from 10 years to 12 years. The amendment was accepted. 

Senator Coburn offered a substitute amendment that would have 

authorized an extension of two years of the 10-year term, but 

would have required the Director to be nominated to serve the additional two years. The Coburn amendment was cosponsored by 

Senators Hatch, Graham, Cornyn, and Lee. 

After debate, Chairman Leahy moved to table the Coburn 

amendment. The motion to table was accepted by a rollcall vote. 

The vote record is as follows: 

Tally: 11 Yeas, 7 Nays 

Yeas (11): Kohl (D–WI), Feinstein (D–CA), Schumer (D–NY), Durbin (D–IL), Whitehouse (D–RI), Klobuchar (D–MN), Franken (D– 

MN), Coons (D–DE), Blumenthal (D–CT), Grassley (R–IA), Leahy 

(D–VT). 

Nays (7): Hatch (R–UT), Kyl (R–AZ), Sessions (R–AL), Graham (R– 

SC), Cornyn (R–TX), Lee (R–UT), Coburn (R–OK). 

The Committee then voted to report favorably S. 1103. The vote 

record is as follows: 

Tally: 11 Yeas, 7 Nays 

Yeas (11): Kohl (D–WI), Feinstein (D–CA), Schumer (D–NY), Durbin (D–IL), Whitehouse (D–RI), Klobuchar (D–MN), Franken (D– 

MN), Coons (D–DE), Blumenthal (D–CT), Grassley (R–IA), Leahy 

(D–VT). 

Nays (7): Hatch (R–UT), Kyl (R–AZ), Sessions (R–AL), Graham (R– 

SC), Cornyn (R–TX), Lee (R–UT), Coburn (R–OK). 

III. SECTION-BY-SECTION SUMMARY OF THE BILL

Section 1. Findings 

This section finds that the President requested that Congress extend the term of the FBI Director to maintain continuity of leaderVerDate Mar 15 2010 23:46 Jun 23, 2011 Jkt 099010 PO 00000 Frm 00012 Fmt 6659 Sfmt 6602 E:\HR\OC\SR023.XXX SR023

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ship at the FBI during a time of extraordinary threat to the United 

States. This section also finds that Congress intends the extension 

to be a one-time exception to the 10-year statutory limit on the 

term of his position. 

Section 2. Extension of the Term of the Incumbent Director of the 

Federal Bureau of Investigation 

This section modifies the Omnibus Crime Control and Safe 

Streets Act of 1968 (28 U.S.C. 532 note) to allow a one-time statutory extension of the 10-year term of the current Director of the 

FBI at the date of enactment at the request of the President. The 

change would allow the incumbent Director of the FBI to serve an 

additional two years until August 3, 2013. 

IV. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

The Committee sets forth, with respect to the bill, S. 1103, the 

following estimate and comparison prepared by the Director of the 

Congressional Budget Office under section 402 of the Congressional 

Budget Act of 1974: 

JUNE 17, 2011. 

Hon. PATRICK J. LEAHY, 

Chairman, Committee on the Judiciary, 

U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 1103, a bill to extend the 

term of the incumbent Director of the Federal Bureau of Investigation. 

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

to provide them. The CBO staff contact is Mark Grabowicz. 

Sincerely, 

DOUGLAS W. ELMENDORF. 

Enclosure. 

S. 1103—A bill to extend the term of the incumbent Director of the 

Federal Bureau of Investigation 

S. 1103 would extend the term of the current director of the Federal Bureau of Investigation by two years. Under current law, the 

term of the director will expire in August. CBO estimates that implementing this bill would have no significant cost to the federal 

government. Enacting S. 1103 would not affect direct spending or 

revenues; therefore, pay-as-you-go procedures do not apply. 

S. 1103 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. 

The CBO staff contact for this estimate is Mark Grabowicz. The 

estimate was approved by Theresa Gullo, Deputy Assistant Director for Budget Analysis. 

V. REGULATORY IMPACT STATEMENT

In compliance with rule XXVI of the Standing Rules of the Senate, the Committee finds that under S. 1103, as reported, no substantial regulatory impact will be incurred by implementing the 

provisions of this legislation. 


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VI. CONCLUSION

A bill to extend the term of the incumbent Director of the Federal Bureau of Investigation, S. 1103, was reported favorably to the 

Senate from the Committee on the Judiciary. The bill provides, at 

the request of the President, a one-time exception to the statutory 

limit on the 10-year term of the FBI Director. The bill will allow 

the incumbent Director to serve an additional two years, until 

2013, and is not intended to create a precedent. Because of leadership transitions of critical national security positions at Federal 

agencies and the need for stability and continuity at the FBI, the 

Committee recommends swift action on S. 1103 as reported. 

VII. CHANGES TO EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, changes in existing law made by S. 1103, as 

reported, are shown as follows (existing law proposed to be omitted 

is enclosed in black brackets, new matter is printed in italic, and 

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

UNITED STATES CODE 

TITLE 28—JUDICIARY AND JUDICIAL 

PROCEDURE 

* * * * * * * 

PART II—DEPARTMENT OF JUSTICE 

* * * * * * * 

SECTION 532. DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION. 

The Attorney General may appoint a Director of the Federal Bureau of Investigation. The Director of the Federal Bureau of Investigation is the head of the Federal Bureau of Investigation. 

Note: 

Confirmation and Compensation of Director; Term of 

Service 

(a) Effective as of the day following the date on which the 

present incumbent in the office of Director ceases to serve as such, 

the Director of the Federal Bureau of Investigation shall be appointed by the President, by and with the advice and consent of the 

Senate, and shall receive compensation at the rate prescribed for 

level II of the Federal Executive Salary Schedule [section 5313 of 

Title 5, Government Organization and Employees]. 

(b) Effective with respect to any individual appointment by the 

President, by and with the advice and consent of the Senate, after 

June 1, 1973, the term of service of the Director of the Federal Bureau of Investigation shall be ten years. A Director may not serve 

more than one ten-year term. The provisions of subsections (a) 

through (c) of section 8335 of title 5, United States Code [section 

8335(a) through (c) of Title 5], shall apply to any individual appointed under this section. 


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(c) With respect to the individual who is the incumbent in the office of the Director of the Federal Bureau of Investigation on the 

date of enactment of this subsection, subsection (b) shall be applied— 

(1) in the first sentence, by substituting ‘‘12 years’’ for ‘‘ten 

years’’; and 

(2) in the second sentence, by substituting ‘‘12-year term’’ for 

‘‘ten-year term’’. 


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