H3036 CONGRESSIONAL RECORD — HOUSE March 26, 2007 avian flu is at the forefront of this county’s 120-day limit to the term of a United is intended to restore the historical health-related worries, it should be of the ut- States attorney appointed on an in- checks and balances to the process by most concern to people that animal fighting is terim basis by the Attorney General, which interim U.S. Attorneys are ap- occurring all across the country. It makes one and for other purposes, as amended. pointed. It will repair a breach in the wonder, what kind of person could enjoy a The Clerk read the title of the bill. law that has been a major contributing ‘‘sport’’ like this? The text of the bill is as follows: factor in the recent termination of In the forty-eight states where animal fight- H.R. 580 eight able and experienced United ing is already outlawed, illegal gambling goes Be it enacted by the Senate and House of Rep- States Attorneys and their replace- hand-in-hand with this gruesome activity. H.R. resentatives of the United States of America in ment with interim appointments. It 137, the Animal Fighting Prohibition Enforce- Congress assembled, has gathered much attention across ment Act of 2007, makes it a felony to know- SECTION 1. INTERIM APPOINTMENT OF UNITED this Nation, and not just in govern- ingly sponsor or exhibit an animal or to use STATES ATTORNEYS. ment and legal circles. interstate commerce for the purposes of fight- Section 546 of title 28, United States Code, The full circumstances surrounding ing. This bill would impose a prison sentence is amended by striking subsection (c) and in- these terminations are still coming to serting the following new subsections: of up to 3 years. light, but what we know is already ‘‘(c) A person appointed as United States very troubling. The reports about these I have supported this legislation since 2003. attorney under this section may serve until I am pleased that this legislation has over- the earlier of— terminations are particularly troubling whelming bipartisan support, with 303 cospon- ‘‘(1) the qualification of a United States at- in that the United States Attorneys sors. Obviously we need stronger laws on this torney for such district appointed by the are among the most powerful govern- because this practice still continues. President under section 541 of this title; or ment officials we have. They have the Mr. Speaker, I urge my colleagues to pass ‘‘(2) the expiration of 120 days after ap- power to seek convictions and bring H.R. 137, the Animal Fighting Prohibition En- pointment by the Attorney General under the full weight of the United States this section. forcement Act of 2007. Government against any citizen or ‘‘(d) If an appointment expires under sub- company that they deem important Mr. KUCINICH. Mr. Speaker, I rise today in section (c)(2), the district court for such dis- support of H.R. 137, the Animal Fighting Pro- trict may appoint a United States attorney and eligible for prosecution. They can hibition Enforcement Act of 2007. It is hard to to serve until the vacancy is filled. The order negotiate plea agreements. They can believe that an act as horrendous and brutal of appointment by the court shall be filed send people to prison for years and as animal fighting still takes place today. with the clerk of the court. years. And frequently, the mere disclo- H.R. 137 would make engaging in animal ‘‘(e) This section is the exclusive means for sure of a criminal investigation can de- fighting a felony. This legislation will ensure appointing a person to temporarily perform the stroy reputations and careers. functions of a United States attorney for a dis- that those who choose to fight animals illegally These are awesome powers. And so trict in which the office of United States attor- we on the Judiciary Committee con- will be met with the appropriate penalty when ney is vacant.’’. they disregard the law. sider it absolutely essential that the SEC. 2. APPLICABILITY. American people have full confidence Despite the fact that the vast majority of (a) IN GENERAL.—The amendments made by states have banned this atrocious and deplor- this Act shall take effect on the date of the en- in those entrusted to exercise these able act, animal fighting continues to plague actment of this Act. powers and that they do so with com- our communities. Animals such as dogs and (b) APPLICATION.— plete integrity and free from political chickens are fought to the death in the name (1) IN GENERAL.—Any person serving as a influence of any kind. of sport. This is unhealthy, violent behavior on United States attorney on the day before the The committee’s investigation into the part of humans and is inhumane and mer- date of the enactment of this Act who was ap- these troubling circumstances is con- pointed under section 546 of title 28, United tinuing. The longer time goes on, the ciless to the animals. States Code, for a district may serve until the I commend both local and state officials for more we know; and the more we know, earlier of— the more we are troubled about what stepping up raids on animal fighting rings. (A) the qualification of a United States attor- Now it is time for this body of Congress to do ney for that district appointed by the President has been going on in the Department of our part by making these offenses a felony under section 541 of that title; or Justice. It has already become abun- under Federal law. I urge my colleagues to (B) 120 days after the date of the enactment of dantly clear that the gaping vulner- join me and vote in favor of the Animal Fight- this Act. ability in the law, which has placed the ing Prohibition Enforcement Act, H.R. 137. (2) EXPIRED APPOINTMENTS.—If an appoint- independence and integrity of our pros- Mr. SCOTT of Virginia Mr. Speaker, ment expires under paragraph (1)(B), the dis- ecutorial system in jeopardy, needs to trict court for the district concerned may ap- be repaired as quickly as possible; and I yield back the balance of my time. point a United States attorney for that district The SPEAKER pro tempore. The that is what we are here to do today. under section 546(d) of title 28, United States What helped bring these troubling question is on the motion offered by Code, as added by this Act. circumstances about, what helped the gentleman from Virginia (Mr. The SPEAKER pro tempore. Pursu- SCOTT) that the House suspend the make it possible for high-level Justice ant to the rule, the gentleman from Department and White House officials rules and pass the bill, H.R. 137, as Michigan (Mr. CONYERS) and the gen- amended. to even entertain the notion that they tleman from North Carolina (Mr. could, as appears to be the case, target The question was taken. COBLE) each will control 20 minutes. The SPEAKER pro tempore. In the certain U.S. Attorneys for an unprece- The Chair recognizes the gentleman dented mid-course purge was an ob- opinion of the Chair, two-thirds being from Michigan. in the affirmative, the ayes have it. scure provision adequately and anony- GENERAL LEAVE Mr. WESTMORELAND. Mr. Speaker, mously slipped into the USA PATRIOT Mr. CONYERS. Mr. Speaker, I ask on that, I demand the yeas and nays. Reauthorization Act conference report unanimous consent that all Members The yeas and nays were ordered. in March of 2006. Without any debate, have 5 legislative days to revise and ex- The SPEAKER pro tempore. Pursu- let alone the benefit of a single hearing tend their remarks and include extra- ant to clause 8 of rule XX and the in either body, this provision, added at neous material on the bill under con- Chair’s prior announcement, further the behest of the Justice Department’s sideration. proceedings on this question will be top political appointees to signifi- The SPEAKER pro tempore. Is there postponed. cantly enhance the power to appoint objection to the request of the gen- interim U.S. Attorneys without having f tleman from Michigan? to subject their appointments to cus- b 1730 There was no objection. tomary safeguard of Senate confirma- Mr. CONYERS. Mr. Speaker, I yield tion. It was a middle-of-the-night in- INTERIM APPOINTMENT OF myself such time as I may consume. sertion, and we are here to correct UNITED STATES ATTORNEYS Mr. Speaker, the measure before us that. Mr. CONYERS. Mr. Speaker, I move today has been introduced by the gen- Indeed, the administration’s plan to to suspend the rules and pass the bill tleman from California, a ranking exploit the new provision to bypass the (H.R. 580) to amend chapter 35 of title member of the committee and a sub- Senate confirmation process is now 28, United States Code, to provide for a committee Chair, HOWARD BERMAN. It well documented. As bluntly explained

VerDate Aug 31 2005 02:13 Mar 27, 2007 Jkt 059060 PO 00000 Frm 00018 Fmt 7634 Sfmt 0634 E:\CR\FM\A26MR7.024 H26MRPT1 mstockstill on PROD1PC66 with HOUSE March 26, 2007 CONGRESSIONAL RECORD — HOUSE H3037 by internal e-mails we received, and Without any I debate, let alone the benefit of culations in their execution. I urge my col- they now number in the hundreds, al- a single hearing in either body, this provision leagues to support this important legislation. though we get them late on Friday was added at the behest of the Justice De- Mr. Speaker, I reserve the balance of nights, by the Attorney General’s then- partment’s top political appointees, to signifi- my time. chief of staff, for example, discussing cantly enhance their power to appoint interim Mr. COBLE. Mr. Speaker, I yield my- their plan to install the former Repub- U.S. Attorneys, without having to subject the self such time as I may consume. lican National Committee political op- appointments to the customary safeguard of Mr. Speaker, I rise in mild opposition erative, the new provision would enable Senate confirmation. to H.R. 580, primarily against the proc- them to ‘‘give far less deference to Indeed, the Administration’s deliberate plan ess rather than substantively. home State Senators and thereby get to exploit the new provision to bypass the Scrutiny over the dismissal of sev- our preferred person appointed and do Senate confirmation process is now well docu- eral U.S. Attorneys in recent days may it far faster and more efficiently at less mented. As bluntly explained in an internal e- have triggered this legislation. While political cost to the White House.’’ mail by the Attorney General’s then chief of we are still learning the facts sur- This is outrageous. The Senate has staff, for example, discussing their plan to in- rounding those dismissals, it does re- already acted. The time is now. We stall the former RNC political operative, the main clear that the U.S. Attorneys do need to move as rapidly as we can to new provision would enable them to ‘‘give far indeed serve at the pleasure of the correct this very serious error that less deference to home-State Senators and President. Some are calling for over- casts a question upon the integrity of a thereby get (1) our preferred person appointed sight investigation because of the po- very, very important part of our gov- and (2) do it far faster and more efficiently, at litical appearance surrounding those ernment, the Department of Justice. less political cost to the White House.’’ dismissals, and this is fine; but amend- Speaker, the bill before us today, introduced Traditionally—since the Civil War—when- ing the appointment process for in- by my friend HOWARD BERMAN, will restore the ever a U.S. Attorney left office, and until the terim U.S. Attorneys I believe is the historical checks and balances to the process Senate could confirm a replacement, the local wrong response. by which interim U.S. Attorneys are appointed. federal district court has appointed someone Prior to 1986, the district court ap- It will repair a breach in the law that has been to fill the position on an interim basis. This pointed interim U.S. Attorneys to fill a major contributing factor in the recent termi- was a neutral means of ensuring that perma- vacancies until a Presidential ap- nation of eight able and experienced United nent appointments remained the shared re- pointee had been nominated and con- States Attorneys and their replacement with sponsibility of the President and the Senate— firmed by the Senate. In 1986, the proc- interim appointments. to encourage the President to send a nomina- ess was changed to authorize the At- The full circumstances surrounding these tion to the Senate promptly, and to encourage torney General to appoint an interim terminations are still coming to light, but what the Senate to act promptly on the nomination. United States Attorney for 120 days, at we know already is very troubling. In 1986, at the request of Attorney General which time, if the Senate had not con- In one instance, the primary apparent quali- Ed Meese, the law was modified to authorize firmed a new United States Attorney, fication for the President’s chosen replace- the Attorney General to make short-term in- the district court would then appoint ment was that he had been an aggressive po- terim U.S. Attorney appointments, for up to an interim to serve until a new perma- litical operative at the Republican National 120 days. But if a permanent U.S. Attorney nent United States Attorney was in- Committee, thereby putting himself on Karl had not been confirmed by the end of that 120 deed confirmed. Rove’s A list. In several other instances, the days, the district court retained authority to This process was not infallible. Some U.S. Attorney was in the midst of a sensitive make the appointment for the remainder of the said authorizing the judiciary to ap- public corruption investigation, and there were interim period. This procedure, codified in 28 point the prosecutors before their reportedly complaints from Republicans that U.S.C. § 546, preserved the incentives on the court created a conflict of interest, and the investigation was being pursued too ag- Executive and Legislative Branches to work I think a good argument can be made gressively against a fellow Republican, or was together on the nomination and confirmation of for that. Others said the Executive not being pursued aggressively enough a permanent replacement. could maneuver the Constitution by against a Democrat. That balanced approach was terminating a court-appointed interim The reports about these terminations are unceremoniously jettisoned a year ago, and by repeatedly substituting its own in- particularly troubling in that U.S. Attorneys are with it respect for the Senate’s role in ensuring terim for 120-day stints. A good argu- among our most powerful government officials. that the President’s power to hire and fire U.S. ment could well be made for that as They not only have power to seek convictions Attorneys at will was not abused at the ex- well. and negotiate plea agreements that can send pense of prosecutorial integrity. In 2005, the process for appointing in- people to prison for years. The mere disclo- The stealth provision in the 2006 USA PA- terim United States Attorneys, how- sure of a criminal investigation can destroy TRIOT Reauthorization Act completely re- ever, was changed once again. This was reputations and careers. moved the district court as a backstop in the an amendment to section 546 of title 28, These are awesome powers, and it is abso- interim appointment process, turning over sole which eliminated the 120-day time lutely essential that the American people can power to the Attorney General, to unilaterally limit for an Executive-appointed in- have full confidence those entrusted to exer- make interim appointments, for an unlimited terim to serve and eliminated the au- cise these powers do so with complete integ- time, with no obligation to involve the Senate, thority for the district court to ap- rity and free from improper political influence. or the Judicial Branch, or anyone else. point an interim. The Committee’s investigation into these H.R. 580 will restore the checks and bal- Unfortunately, one of these responses troubling circumstances is continuing, and we ances that have historically provided a critical to the recent dismissals had been H.R. will know more, and we will leave extended safeguard against politicization of U.S. Attor- 580, which would return the process of discussion of them for another day. But it has neys. First, it repeals the 2006 change to sec- appointing interim United States At- already become abundantly clear that the gap- tion 546, keeping the Attorney General’s in- torneys for 120 days and authorizing ing vulnerability in the law, which has placed terim appointment role, but limiting it to 120 the judiciary to appoint interims if a the independence and integrity of our prosecu- days, as it was before. permanent United States Attorney is torial system in jeopardy, needs to be repaired Second, the bill clarifies that section 546 is not confirmed prior to the 120-day as quickly as possible. And that is what we the only way to make interim U.S. Attorney passes. are here to do today. appointments. This additional change has be- The bill, H.R. 580, was accelerated What helped bring these troubling cir- come necessary in light of indications, docu- through the Judiciary Committee. cumstances about—what helped make it pos- mented by the Congressional Research Serv- Only one hearing was held on the bill. sible for high-level Justice Department and ice, that the Justice Department has used, and That hearing focused mostly on the White House officials to even entertain the no- could again use, the Federal Vacancies Re- current U.S. Attorney controversy, not tion that they could, as appears to be the form Act to evade the intent of a tightened the bill itself. It was then heard by the case, target certain U.S. Attorneys for an un- section 546. full committee, but there was no op- precedented mid-course purge—was an ob- Mr. Speaker, this bill is an important step in portunity for the Judiciary Sub- scure provision quietly and anonymously restoring legal safeguards against abuse of committee on Commercial Administra- slipped into the USA PATRIOT Reauthoriza- Executive power to politicize core government tive Law markup to therefore improve tion Act conference report in March 2006. functions that need to be above political cal- the bill.

VerDate Aug 31 2005 02:13 Mar 27, 2007 Jkt 059060 PO 00000 Frm 00019 Fmt 7634 Sfmt 0634 E:\CR\FM\K26MR7.043 H26MRPT1 mstockstill on PROD1PC66 with HOUSE H3038 CONGRESSIONAL RECORD — HOUSE March 26, 2007 Republicans on the Judiciary Com- of administration policy we utilize the I urge my colleagues to support this mittee, many of us, would have liked new statutory provisions that author- legislation. to have worked with the Democrats in ize the Attorney General to make U.S. Mr. COBLE. Mr. Speaker, I reserve a bipartisan fashion more thoroughly, Attorney appointments.’’ the balance of my time. and I think we may have come at the The Congressional Research Service, Mr. CONYERS. Mr. Speaker, I recog- finish line with a more favorable fin- a nonpartisan entity, has completed a nize HOWARD BERMAN, the senior mem- ished product. Given more time, we report finding that these firings are un- ber on the Judiciary Committee, and might have considered some promising precedented. Prior to the forced res- thank him for his authorship of the ideas. For instance, this bill does not ignation of eight U.S. Attorneys in re- measure that brings us to the floor this address the problem of appointing and cent months, and outside the normal evening. I yield to him 5 minutes. confirming United States Attorneys in turnover of U.S. Attorneys that occurs Mr. BERMAN. Mr. Speaker, I thank a timely fashion. Senators KYL and with a new administration, only 10 U.S. the chairman who cosponsored this bill SESSIONS introduced amendments in Attorneys were forced to resign in the with me, along with the gentleman the Senate proposing several other re- last 25 years. The 10 U.S. Attorneys from Virginia (Mr. SCOTT), chairman of sponses to inherent conflicts created cited in the CRS report were all fired the Crime Subcommittee of Judiciary by United States Attorney vacancies for cause, most under a cloud of scan- Committee. and possible ways to provide for dal. H.R. 580 does only one thing, it re- interims. H.R. 580, legislation offered by my stores the checks and balances that, In these times of the war on terror, friend and colleague from California, until last year, had long been part of Mr. Speaker and colleagues, and the Representative HOWARD BERMAN, pro- the process for filling vacancies in U.S. continuing age-old war on crime, the vides the necessary legislative response Attorneys’ offices. service of the United States Attorneys, to restore checks and balances in the I won’t go through the history of how indeed the front line of Federal law en- U.S. Attorney appointment process by interim U.S. Attorneys were appointed, forcement, is more than ever a matter reinstating the 120-day limit on all in- because the chairman has spelled it of first importance to the Nation. terim appointments. out, and the gentleman from North The bill also closes other potential Their appointment is serious business. Carolina has reaffirmed that history. loopholes through which Senate con- We should not have rushed to judgment But I want to address the one issue my firmation could be bypassed. It clari- in attending to this business, but in- friend from North Carolina raised, fies that section 546 of title 28 of the stead have given the legislative process which is, were we to take a longer United States Code is the exclusive more time to work. I think we missed time, this might have been, at least to means of appointing interim U.S. At- an opportunity to improve the bill as a his way of thinking, a better approach. torneys. The whole goal of this bill is to re- result. Additionally, the bill would apply Mr. Speaker, I reserve the balance of store the status quo ante before a retroactively to all U.S. Attorneys cur- sneak attack change on the law uti- my time. rently serving in an interim capacity. Mr. CONYERS. Mr. Speaker, I yield lized in the PATRIOT Act without any- This would ensure that interim U.S. myself 15 seconds only to say, Mr. HOW- one calling special attention to it, Attorneys appointed since the purge ARD COBLE, I recognize you as a sincere undiscussed by the conferees or by the scheme was hatched are not permitted members of either this House or the and experienced and valued member of to serve indefinitely and without Sen- this committee, and I appreciate the other body, change that law to give the ate confirmation. executive bench total authority in this circumstances that you are in this At a legislative hearing on H.R. 580 particular area. evening. before the Subcommittee on Commer- The Senator, a member of the other Mr. Speaker, I yield 4 minutes to the cial and Administrative Law on March body who was chairman of the Judici- subcommittee chairwoman, LINDA 6, this bill received strong support from ary Committee of the other body dur- SANCHEZ of California, and I thank her the president of the National Associa- ing this time, has said that he didn’t for the excellent job that she has done. tion of Former U.S. Attorneys, as well ´ know about the provision until a col- Ms. LINDA T. SANCHEZ of Cali- as a former Republican-appointed U.S. league alerted him to it last month. fornia. Mr. Speaker, I rise in support of Attorney. It is also important to note The former chairman’s staff told him H.R. 580, a bill to revoke the Attorney that the Attorney General himself has that the Department of Justice pro- General’s unfettered authority to ap- expressed that he is not opposed to vided the language and that it was in- point U.S. Attorneys indefinitely. rolling back this provision of the PA- serted in the conference report by a This legislation would repeal a small TRIOT Act. And if the Attorney Gen- member of his staff who was made U.S. provision, with enormous repercus- eral’s claim that he was not aware of Attorney in Utah only 4 months later. sions, that was placed into the USA the Justice Department efforts to Now we have a different story from PATRIOT Reauthorization Act con- quietly insert this provision are true, the Department of Justice. Will ference report. The provision, which re- it would seem he never wanted the PA- Moschella, the former head of the Of- moved the 120-day limit for interim ap- TRIOT Act changes to the U.S. Attor- fice of Legislative Affairs, now claims pointment of U.S. Attorneys, allows in- ney selection process in the first place. terim appointees to serve indefinitely Additionally, the corresponding bill sole responsibility for the provision and without Senate confirmation. in the Senate received strong bipar- and says he pursued the change on his We now know that the provision was tisan support and passed by an over- own, without the knowledge or coordi- inserted into the conference report at whelming margin of 94–2. nation of his superiors at the Justice the request of a Justice Department of- Mr. Speaker, we must begin to re- Department or the White House. ficial. Clearly, the Justice Depart- store the independence of U.S. Attor- This is a Department, the Depart- ment’s effort to insert this provision neys across the country and return to ment of Justice, that says it fired eight was just one part of the Bush adminis- the bedrock principle of our court sys- U.S. Attorneys for not coordinating tration’s coordinated plan to purge tem that justice must be served objec- their work 100 percent with the prior- U.S. Attorneys across the country for tively and without fear or favor. ities of the Department, and yet we are political reasons. supposed to believe that they are per- My suspicions about the role of this b 1745 mitting a relatively low-level official provision in the firing of at least eight While the consideration of H.R. 580 to fly solo in changing Federal law on U.S. Attorneys have been confirmed will not end the Judiciary Committee’s the appointment of U.S. Attorneys after reading the documents turned ongoing investigation of the U.S. At- without any other departmental in- over by the Justice Department. We torney purge scheme, the passage of volvement. It is for this reason, I say learned, for example, that in an e-mail this legislation is a critical step in this to my friend from North Carolina, that to former White House Counsel Harriet process to close the loophole in the PA- the first thing we need to do is to go Miers, former Attorney General Chief TRIOT Act that this administration back to the status quo ante, the com- of Staff Kyle Sampson wrote: ‘‘I has improperly exploited for political promise worked out in the Reagan ad- strongly recommend that as a matter purposes. ministration with Attorney General Ed

VerDate Aug 31 2005 02:13 Mar 27, 2007 Jkt 059060 PO 00000 Frm 00020 Fmt 7634 Sfmt 0634 E:\CR\FM\K26MR7.044 H26MRPT1 mstockstill on PROD1PC66 with HOUSE March 26, 2007 CONGRESSIONAL RECORD — HOUSE H3039 Meese, a Democratic House and the Re- sions in the first place. Without the pening again, we need to be sure we publican Senate in 1986, which allowed knowledge of anybody, it seems, in the have Senate confirmation. for this process where we gave for the House or the Senate, this change was Mr. COBLE. Mr. Speaker, the gen- first time the Attorney General the done by the staff behind closed doors. tleman from Washington referred to it right to name an interim U.S. Attor- We didn’t know about it. I haven’t as scandal. It may well end up being a ney, providing the district court with heard yet from any of my Republican scandal, but I think to use that word the theoretical ability, should that friends that did. today might well be premature. But, court choose to do so, to replace or, as By restoring the status quo ante the meanwhile, I reserve the balance of my has been much more likely, simply re- way that it had been for years, we get time. affirm the naming of the interim U.S. back to a situation where we can re- Mr. CONYERS. Mr. Speaker, I yield Attorney if no full U.S. Attorney had move this from the table. We can have to the gentlewoman from Texas, SHEI- been confirmed yet by the Senate. a dispassionate discussion about what LA JACKSON-LEE, 1 minute. What is clear from the e-mails pro- has happened with the Department of (Ms. JACKSON-LEE of Texas asked vided to the Judiciary Committee is Justice and its future; and, if we want and was given permission to revise and that the Department of Justice and to make any change, then at least we extend her remarks.) White House employees, whatever their have something that has stood the test Ms. JACKSON-LEE of Texas. Mr. Speaker, I thank the distinguished gen- motivation in pushing this proposal of time. tleman, and I rise with sadness to sup- originally, whatever their motivation, Mr. COBLE. Mr. Speaker, I reserve port this legislation that clears up the they quickly figured out that the pro- the balance of my time. obviously ongoing abuse and disrespect vision created the possibility to cir- Mr. CONYERS. The gentleman from of the integrity of the three branches cumvent the Senate and decided to ex- Washington (Mr. INSLEE) is recognized for 2 minutes. of government. ploit that power. We passed the PATRIOT Act that One e-mail between the Department (Mr. INSLEE asked and was given permission to revise and extend his re- some of us did not support, but we did of Justice and the White House depicts not intend for it to be used to avoid the an effort to slow-walk a nomination so marks.) Mr. INSLEE. Mr. Speaker, this bill constitutional Senate confirmation an interim appointee can stay in place. process. That is what has happened. We The two employees discussed an in- could not be more timely. As I was walking across the street in front of understand now that the Attorney Gen- terim appointee in Arkansas who they eral unfortunately may have been in knew was unlikely to get Senate con- the Supreme Court, I saw the inscrip- tion chiseled in the marble of the Su- meetings, may have been informed of firmation. issues dealing with the termination of preme Court. It says, ‘‘Equal justice An employee in the White House U.S. Attorneys without providing that under law.’’ But we have witnessed now Counsel’s Office writes, ‘‘If this is a direct information to the United States in the last few weeks the unpeeling of section 546 appointment for unlimited Congress. duration, he can call himself U.S. At- a scandal where the executive branch This legislation again sets the Con- torney. Our talkers should avoid refer- fired eight well-performing U.S. Attor- stitution back on its feet. It allows for ring to him as ’interim.’’’ neys because they would not do the po- Senate confirmation for U.S. Attor- The Attorney General’s chief of staff litical dirty work of the White House. neys, and it puts back on track the in- replies, and I quote, ‘‘We should gum And it is apparent now, as much as it tegrity in terms of the respect and in- this to death. Our guy is in there so the has ever been, that we have to have a tegrity that is necessary for the judici- status quo is good for us. Pledge a de- check and balance on the executive ary and legal system that the Amer- sire for a Senate-confirmed U.S. Attor- branch with Senate confirmation. ican people have come to understand ney and otherwise hunker down.’’ I want to know why this is so viscer- and believe. I believe we should support I suggest there is ample opportunity ally important. In my district in west- this bill, and I hope we will get back on in the record to recognize that the ern Washington, we had a gentleman track with the relationship between change we made in the PATRIOT Act named John McKay who was doing, by Congress, the executive, and the judici- without the knowledge, as far as I can all rights, a good job as a U.S. Attor- ary. tell, of any representative of either ney for western Washington. But then Mr. Speaker, I rise in strong support of H.R. House was an ill-considered change; there was this contentious election out 580, which amends chapter 35 of title 28 of and the first thing we need to do and there for Governor in 2004, and a bunch the United States Code to restore the 120-day what this bill does is bring the law of Republicans were leaning on him to limit on the term of a United States Attorney back to what had existed. start a grand jury investigation alleg- appointed on an interim basis by the Attorney Mr. CONYERS. Mr. Speaker, how ing voter fraud because the vote came General. The shocking disclosures of the last much time remains on either side? out in favor of the Democrat. He re- few weeks provide all the justification needed The SPEAKER pro tempore. The gen- fused to do so because he said he didn’t to adopt this salutary measure promptly and tleman from Michigan has 5 minutes; see any evidence of voter fraud. by an overwhelming margin. Our friends in the the gentleman from North Carolina has A little later what happens is he goes other body passed companion legislation last 151⁄2 minutes. to the White House for a meeting about week by a vote of 94–2. Mr. COBLE. Mr. Speaker, I reserve a prospective judgeship, and what do Mr. Speaker, United States Attorneys are the balance of my time. they ask him about? They say: How appointed by the President with the advice Mr. CONYERS. I recognize the gen- come Republicans are mad at you, at and consent of the Senate. Each United tleman from Oregon (Mr. BLUMENAUER) the White House. And he knows what States Attorney so appointed is authorized to for 1 minute. they are mad about, is because they serve a 4-year term but is subject to removal Mr. BLUMENAUER. Mr. Speaker, I wouldn’t go after this case where there by the President without cause. The Senate’s appreciate the chairman’s courtesy in was no evidence of voter fraud. It was advise and consent process formally checks permitting me to speak on this bill. I apparent they were leaning on him; the power of the President by requiring the appreciate also what Ranking Member and, when he did not collapse, he was United States Attorney nominee to go through COBLE talked about in terms of out- fired. a confirmation process. In addition, Senators lining these issues. Now, this is a situation where it is also play a particularly influential informal role But it seems to me that there was clear that we need Senate confirma- in the nomination of United States Attorneys. just one area where I would take mod- tion. And, by the way, I have written a Typically, a President, prior to appointing a est exception with him, and that is the letter to the President today saying new United States Attorney, consults with the notion that we should have been taking the President should reinstate that Senators from the State where the vacancy more time to vet this and look at alter- U.S. Attorney while this matter is in- exists if they are members of the President’s natives. Because I fully agree with the vestigated. This thing smells like a political party. The President usually accepts gentleman from California, where mackerel in the moonlight, and it the nominee recommended by the Senator or there was not adequate time for Con- needs to be resolved. Until it is re- other official. This tradition, called ‘‘senatorial gress to be involved is when this was solved, Congress is going to be inves- courtesy,’’ serves as an informal check on the slipped into the PATRIOT Act revi- tigating; and to prevent this from hap- President’s appointment power.

VerDate Aug 31 2005 02:13 Mar 27, 2007 Jkt 059060 PO 00000 Frm 00021 Fmt 7634 Sfmt 9920 E:\CR\FM\K26MR7.047 H26MRPT1 mstockstill on PROD1PC66 with HOUSE H3040 CONGRESSIONAL RECORD — HOUSE March 26, 2007 Since the Civil War, the judiciary has been porting that several United States Attorneys how he performs, etc. If they ultimately say, empowered to fill vacancies in the office of the had been asked to resign by the Justice De- ‘no never’ (and the longer we can forestall United States Attorney. In 1966, that authority partment. It has now been confirmed that at that, the better), then we can tell them we’ll was codified at 28 U.S.C. § 546. When a look for other candidates, and otherwise run least seven United States Attorneys were out the clock. All of this should be done in United States Attorney position became va- asked to resign on December 7, 2006. An ‘good faith,’ of course. cant, the district court in the district where the eighth United States Attorney was subse- Finally, we now know that after gaining this vacancy occurred named a temporary replace- quently asked to resign. They include the fol- increased authority to appoint interim U.S. At- ment to serve until the vacancy was filled. In lowing: H.E. Cummins, III, U.S. Attorney, E.D. torneys indefinitely, the administration has ex- 1986, in response to a request by the Attorney Ark.; John McKay, U.S. Attorney, W.D. Wash.; ploited the provision to fire U.S. Attorneys for General that its office be vested with authority David Iglesias, U.S. Attorney, D. N.M.; Paul K. political reasons. A mass purge of this sort is to appoint interim United States Attorneys, Charlton, U.S. Attorney, D. Ariz.; Carol Lam, unprecedented in recent history. The Depart- Congress amended the statute to add former U.S. Attorney, S.D. Calif.; Daniel Bogden, U.S. ment of Justice and the White House coordi- section 546(d). Attorney, D. Nev.; Kevin Ryan, N.D. Calif.; and nated this purge. According to an administra- Pursuant to this authority, the Attorney Gen- Margaret Chiara, W.D. Mich. eral was authorized to appoint an interim On March 6, 2007, the Subcommittee on tion ‘‘hit list’’ released on Tuesday, U.S. Attor- United States Attorney for 120 days and, if the Commercial and Administrative Law held a neys were targets for the purge based on their Senate did not confirm a new United States hearing entitled, ‘‘H.R. 580, Restoring Checks rankings. The ranking relied in large part on Attorney within such period, the district court and Balances in the Confirmation Process of whether the U.S. Attorney ‘‘exhibit[ed] loyalty was then authorized to appoint an interim United States Attorneys.’’ Witnesses at the to the President and Attorney General.’’ United States Attorney to serve until a perma- hearing included six of the eight former United Mr. Speaker, until exposed by this unfortu- nent replacement was confirmed. By having States Attorneys and William Moschella, Prin- nate episode, United States Attorneys were the district court play a role in the selection of cipal Associate Deputy Attorney General, expected to, and in fact did exercise, wide dis- an interim United States Attorney, former sec- among other witnesses. cretion in the use of resources to further the tion 546(d) allowed the judicial branch to act Six of the six former United States Attorneys priorities of their districts. Largely a result of its as a check on executive power. In practice, if origins as a distinct prosecutorial branch of the a vacancy was expected, the Attorney General testified at the hearing and each testified that he or she was not told in advance why he or Federal Government, the office of the United would solicit the opinion of the chief judge of States Attorney traditionally operated with an the relevant district regarding possible tem- she was being asked to resign. Upon further inquiry, however, Messrs. Charlton and unusual level of independence from the Jus- porary appointments. tice Department in a broad range of daily ac- Twenty years later, section 546 was amend- Bogden were advised by the then Acting As- sistant Attorney General, William Mercer, that tivities. That practice served the Nation well ed again in the USA PATRIOT Improvement for more than 200 years. The practice that has and Reauthorization Act of 2005. This legisla- they were terminated essentially to make way for other Republicans to enhance their creden- been in place for less than 2 years has served tion amended section 546(c) to provide that the Nation poorly. It needs to end. ‘‘[a] person appointed as United States attor- tial and pad their resumes. In addition, Messrs. Iglesias and McKay testified about in- Mr. Speaker, during the full committee ney under this section may serve until the markup of H.R. 580, I brought to my col- qualification of a United States Attorney for appropriate inquiries they received from Mem- bers of Congress concerning pending inves- leagues’ attention the value of including in the such district appointed by the President’’ bill or committee report the core congressional under 28 U.S.C. § 541. The extent of the legis- tigation, which they surmised may have led to their forced resignations. findings that forms the justification for this leg- lative history of this provision is one sentence islation. Briefly stated, those findings are as appearing in the conference report accom- Mr. Speaker, the USA PATRIOT Act Reau- thorization provision on interim U.S. Attorneys follows: panying the act: ‘‘Section 502 [effecting the The Congress finds as follows: amendments to section 546] is a new section should be repealed for two reasons. First, Members of Congress did not get an oppor- (1) That United States Attorneys are ‘‘infe- and addresses an inconsistency in the ap- rior officers’’ and therefore are subject to the pointment process of United States Attor- tunity to vet or debate the provision that is cur- rent law. Rather the Republican leadership of Constitution’s discretionary appointment provi- neys.’’ sions authorizing the Congress to vest the ap- Although the legislative purpose is unclear, the 109th Congress slipped the provision into pointment power in the President alone or the the practical effect is not. The act amended the conference report at the request of the De- judiciary. section 546 in two critical respects. First, it ef- partment of Justice. Not even Senate Judiciary (2) Vesting the authority in the United States fectively removed district court judges from the Chairman ARLEN SPECTER, whose chief of Attorney General to appoint an interim United interim appointment process and vested the staff was responsible for inserting the provi- States Attorney to serve an indefinite term un- Attorney General with the sole power to ap- sion, knew about its existence. dermines the confirmation process of the point interim United States Attorneys. Second, Second, it is now clear that the manifest in- the act eliminated the 120-day limit on the tention of the proponents of the provision was United States Senate and removes a legisla- term of an interim United States Attorney ap- to allow interim appointees to serve indefinitely tive check on executive power. pointed by the Attorney General. As a result, and to circumvent Senate confirmation. We (3) Vesting residual power to appoint an in- judicial input in the interim appointment proc- know now, for example, that in a September terim United States Attorney in the Federal ess was eliminated. Even more problematic, it 13, 2006 e-mail to former White House Coun- district court in which the vacancy occurs con- created a possible loophole that permits sel Harriet Miers, Attorney General Chief of stitutes an important judicial check on execu- United States Attorneys appointed on an in- Staff Kyle Sampson wrote: tive power. terim basis to serve indefinitely without ever I strongly recommend that, as a matter of Mr. Speaker, H.R. 580 is a thoughtful and being subjected to a Senate confirmation proc- Administration policy, we utilize the new well crafted legislative measure which will re- ess, which is plainly a result not contemplated statutory provisions that authorize the At- store public confidence in the process by by the Framers. torney General to make U.S. Attorney ap- which interim United States Attorneys are ap- Mr. Speaker, excluding changes in adminis- pointments. pointed. I strongly support the bill and urge all tration, it is rare for a United States Attorney Mr. Sampson further said that by using the Members to do likewise. to not complete his or her 4-year term of ap- new provision, DOJ could ‘‘give far less def- Mr. COBLE. Mr. Speaker, I yield pointment. According to the Congressional Re- erence to home-State Senators and thereby back the balance of my time. search Service, only 54 United States Attor- get (1) our preferred person appointed and (2) Mr. CONYERS. Mr. Speaker, Mem- neys between 1981 and 2006 did not com- do it far faster and more efficiently, at less po- bers of the House, the American people plete their 4-year terms. Of these, 30 obtained litical cost to the White House.’’ must have full confidence in the integ- other public sector positions or sought elective Regarding the interim appointment of Tim rity and the independence of the office, 15 entered or returned to private prac- Griffin at the request of Karl Rove and Harriet United States Attorneys in charge of tice, and 1 died. Of the remaining eight United Miers, Mr. Sampson wrote to Monica Good- Federal prosecutions throughout the States Attorneys, two were apparently dis- ling, Senior Counsel to the White House and country, in every State. While they missed by the President, and three apparently Liaison to the White House on December 19, owe the President their appointments, resigned after news reports indicated they had 2006 the following: once they are in their jobs their en- engaged in questionable personal actions. I think we should gum this to death: ask forcement decisions must be unques- Mr. Speaker, in the past few months dis- the Senators to give Tim a chance, meet tionably above politics; and that is turbing stories appeared in the news media re- with him, give him some time in office to see why we are here today.

VerDate Aug 31 2005 02:59 Mar 27, 2007 Jkt 059060 PO 00000 Frm 00022 Fmt 7634 Sfmt 0634 E:\CR\FM\A26MR7.025 H26MRPT1 mstockstill on PROD1PC66 with HOUSE March 26, 2007 CONGRESSIONAL RECORD — HOUSE H3041 Senate confirmation is required for enforcement—is more than ever a matter of Agriculture to pay the costs of facilitating each one of them in an open and public first importance to the Nation. Their appoint- the passage of aquatic species beneath forest process, and it is a critical safeguard ment is serious business. roads (as defined in section 101(a) of title 23, against politicization of our prosecu- United States Code), including the costs of We should not have rushed to judgment in constructing, maintaining, replacing, and re- torial system. This safeguard has been attending to this business, but instead have moving culverts and bridges, as appro- severely compromised by the secret given the legislative process the time that it priate.’’. change that has been referred to, and deserves. (d) CORRECTION OF DESCRIPTION OF NA- this bill restores the safeguards. We have missed an opportunity to improve TIONAL CORRIDOR INFRASTRUCTURE IMPROVE- MENT PROJECT.—Item number 1 of the table b 1800 this bill. The American people have not been well-served. contained in section 1302(e) of the Safe, Ac- I ask my colleagues to fully support Mr. CONYERS. Mr. Speaker, I yield countable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (119 Stat. this measure on both sides of the aisle. back the balance of my time. Mr. SMITH of Texas. Mr. Speaker, this leg- 1205) is amended in the State column by in- The SPEAKER pro tempore. The serting ‘‘LA,’’ after ‘‘TX,’’. islation would return the procedures for ap- question is on the motion offered by (e) CORRECTION OF INTERSTATE ROUTE 376 pointing interim U.S. Attorneys to what it was the gentleman from Michigan (Mr. HIGH PRIORITY DESIGNATION.— before Congress reauthorized the PATRIOT CONYERS) that the House suspend the (1) IN GENERAL.—Section 1105(c)(79) of the Act. rules and pass the bill, H.R. 580, as Intermodal Surface Transportation Effi- Some have claimed that the PATRIOT Act’s amended. ciency Act of 1991 (105 Stat. 2032; 119 Stat. 1213) is amended by striking ‘‘and on United reform was used to avoid Senate confirmation The question was taken. of permanent U.S. attorneys. To prevent that States Route 422’’. The SPEAKER pro tempore. In the (2) CONFORMING AMENDMENT.—Section alleged abuse, this bill, H.R. 580, was rushed opinion of the Chair, two-thirds being 1105(e)(5)(B)(i)(I) of the Intermodal Surface headlong through the Judiciary Committee. in the affirmative, the ayes have it. Transportation Efficiency Act of 1991 (105 One hearing was held on the bill. But that Mr. CONYERS. Mr. Speaker, on that Stat. 2033; 119 Stat. 1213) is amended by hearing focused mostly on the current U.S. At- I demand the yeas and nays. striking ‘‘and United States Route 422’’. torney controversy, not the bill, itself. It was The yeas and nays were ordered. (f) CORRECTION OF INFRASTRUCTURE FI- then pushed immediately to the full committee, NANCE SECTION.—Section 1602(d)(1) of the The SPEAKER pro tempore. Pursu- Safe, Accountable, Flexible, Efficient Trans- without an opportunity for subcommittee mark- ant to clause 8 of rule XX and the up. portation Equity Act: A Legacy for Users Chair’s prior announcement, further (119 Stat. 1247) is amended by striking Republicans on the Judiciary Committee proceedings on this question will be ‘‘through 189 as sections 601 through 609, re- would have liked to have worked more with postponed. spectively’’ and inserting ‘‘through 190 as the Democrats in a bipartisan fashion to im- sections 601 through 610, respectively’’. f prove the existing law. We might well have (g) TRANSPORTATION SYSTEMS MANAGEMENT found a better solution. SAFETEA–LU TECHNICAL AND OPERATIONS DEFINED.—Section 101(a) of The majority’s own witnesses at the hearing, CORRECTIONS ACT title 23, United States Code, is amended by for example, testified that much of the problem adding at the end the following: Mr. DEFAZIO. Mr. Speaker, I move ‘‘(39) TRANSPORTATION SYSTEMS MANAGE- with the interim appointments process is the to suspend the rules and pass the bill MENT AND OPERATIONS.— time it takes to obtain Senate confirmation. (H.R. 1195) to amend the Safe, Account- ‘‘(A) IN GENERAL.—The term ‘transpor- This bill, however, does not address that prob- able, Flexible, Efficient Transportation tation systems management and operations’ lem. Equity Act: A Legacy for Users to means an integrated program to optimize Given more time, we might have considered make technical corrections, and for the performance of existing infrastructure some promising ideas from the other side of other purposes, as amended. through the implementation of multimodal the Capitol. and intermodal, cross-jurisdictional systems, The Clerk read the title of the bill. services, and projects designed to preserve Senator KYL, for example, proposed a 120- The text of the bill is as follows: capacity and improve security, safety, and day interim appointment power for the Execu- H.R. 1195 reliability of the transportation system. tive Branch, and a 120-day clock for the Sen- Be it enacted by the Senate and House of Rep- ‘‘(B) INCLUSIONS.—The term ‘transpor- ate to confirm permanent appointees. This resentatives of the United States of America in tation systems management and operations’ would have addressed the principal problem. Congress assembled, includes— ‘‘(i) regional operations collaboration and Senator SESSIONS proposed to set qualifica- TITLE I—HIGHWAY PROVISIONS tion standards for judicial appointments of in- coordination activities between transpor- SECTION 101. SURFACE TRANSPORTATION TECH- tation and public safety agencies; and terim appointees. These standards would have NICAL CORRECTIONS. helped prevent unsuitable judicial ap- ‘‘(ii) improvements to the transportation (a) CORRECTION OF INTERNAL REFERENCES IN system, such as traffic detection and surveil- pointees—assuming, for the purposes of argu- DISADVANTAGED BUSINESS ENTERPRISES.— lance, arterial management, freeway man- ment, that there should be any judicial ap- Paragraphs (3)(A) and (5) of section 1101(b) of agement, demand management, work zone pointees of Executive Branch prosecutors. the Safe, Accountable, Flexible, Efficient management, emergency management, elec- This bill would allow judges to appoint the Transportation Equity Act: A Legacy for tronic toll collection, automated enforce- very Executive Branch prosecutors practicing Users (119 Stat. 1156) are amended by strik- ment, traffic incident management, roadway before them, and would raise legal, ethical ing ‘‘paragraph (1)’’ each place it appears and weather management, traveler information inserting ‘‘paragraph (2)’’. and practical concerns. Surely we could have services, commercial vehicle operations, (b) CORRECTION OF DISTRIBUTION OF OBLIGA- done better than return to a flawed law of the traffic control, freight management, and co- TION AUTHORITY.—Section 1102(c)(5) of the ordination of highway, rail, transit, bicycle, past. Safe, Accountable, Flexible, Efficient Trans- and pedestrian operations.’’. The rush to legislation also led to an under- portation Equity Act: A Legacy for Users (h) CORRECTION OF REFERENCE IN APPOR- considered amendment adopted at committee (119 Stat. 1158) is amended by striking TIONMENT OF HIGHWAY SAFETY IMPROVEMENT mark-up. That amendment would preclude the ‘‘among the States’’. PROGRAM FUNDS.—Effective October 1, 2006, use of the full range of tried and true tools in (c) CORRECTION OF FEDERAL LANDS HIGH- section 104(b)(5)(A)(iii) of title 23, United the Vacancy Reform Act to obtain interim U.S. WAYS.—Section 1119 of the Safe, Account- States Code, is amended by striking ‘‘the able, Flexible, Efficient Transportation Eq- Federal-aid system’’ each place it appears Attorneys. uity Act: A Legacy for Users (119 Stat. 1190) Specifically, it would preclude the President and inserting ‘‘Federal-aid highways’’. is amended by striking subsection (m) and (i) CORRECTION OF AMENDMENT TO ADVANCE from reaching out to Senate-confirmed, Presi- inserting the following: CONSTRUCTION.—Section 115 of title 23, dential appointees serving in other capacities, ‘‘(m) FOREST HIGHWAYS.—Of the amounts United States Code, is amended by redesig- rather than just career civil servants, to serve made available for public lands highways nating subsection (d) as subsection (c). in these important posts on an interim basis. under section 1101— (j) CORRECTION OF HIGH PRIORITY The amendment limits the pool of qualified ‘‘(1) not more than $20,000,000 for each fis- PROJECTS.—Section 117 of title 23, United individuals to serve temporarily as U.S. Attor- cal year may be used for the maintenance of States Code, is amended— forest highways; (1) by redesignating subsections (d) neys, so it weakens the federal government’s ‘‘(2) not more than $1,000,000 for each fiscal through (h) as subsections (e) through (i), re- ability to fight crime. year may be used for signage identifying spectively; In these times of the War on Terror and the public hunting and fishing access; and (2) by redesignating the second subsection continuing, age-old war on crime, the service ‘‘(3) not more than $10,000,000 for each fis- (c) (relating to Federal share) as subsection of U.S. Attorneys—the front line of federal law cal year shall be used by the Secretary of (d);

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