Attorney General Alberto Gonzales is out, and while fully evaluating his legacy will take a while, part of it will be front and center next month when the terms of 11 interim U.S. Attorneys simultaneously expire.
On Oct. 12, these prosecutors will find themselves at the mercy of the same U.S. district courts that the Justice Department saw fit to cut out of the U.S. Attorney appointment process last year. And the courts will contemplate four more interim appointees later next month, and in November, December and January.
The U.S. Attorney firings, and the congressional inquiries that followed, brought to light a little-noticed provision in the March 2006 USA Patriot Act reauthorization that stripped federal district judges of the power to appoint interim U.S. Attorneys and placed it with the attorney general. Congress struck the provision in June, setting a 120-day half-life on the Justice Department's handpicked prosecutors. The courts will decide whether to reappoint the U.S. Attorneys or push them aside for fresh leadership.
There are 15 interim U.S. Attorneys currently serving, but 11 are holdovers, appointed by Gonzales before Congress changed the law. Some have served without Senate confirmation or court scrutiny for more than a year, inviting credibility questions.
"As a presidential nominee, you're treated differently. You're afforded greater deference in terms of the perception of law enforcement agencies, the court, the community -- they tend to treat nominated candidates with greater respect," says former New Mexico U.S. Attorney David Iglesias, who was among the nine U.S. Attorneys fired in 2006.
Broadly, the 11 were first Assistant U.S. Attorneys or criminal chiefs in their districts before Gonzales put them in the front office, though the first to be appointed under the provision, Bradley Schlozman, who served a year in the Western District of Missouri, was replaced last spring amid allegations that he brought politically motivated voter fraud indictments on the eve of the 2006 elections. He resigned from the Justice Department in August.
J. Timothy Griffin, Gonzales' second appointment under the provision, surrendered his post as interim U.S. Attorney in Arkansas' Eastern District in June, days after then-Deputy Attorney General Paul McNulty testified that Justice officials had shouldered the district's Senate-confirmed U.S. Attorney aside to make way for Griffin, a former aide to then-White House adviser Karl Rove.
Judges and former U.S. Attorneys agree that the courts may be less inclined than they have been in the past to rubber-stamping the attorney general's interim picks, who include Washington, D.C.'s U.S. Attorney, Jeffrey Taylor, whose nomination has lingered in the Senate Judiciary Committee since February.
"I wouldn't be at all surprised if the courts assert themselves," says John McKay, former U.S. Attorney for the Western District of Washington who was fired along with Iglesias in 2006.
Indeed, some judges say they are welcoming the return of their appointment power. "It's one of the checks and balances," says U.S. District Judge David Herndon, who will take over as chief judge in Illinois' Southern District next month. "[The court appointment process] allows us to take an objective look at the office. It lets us have some impact on its balance."
Herndon says the court is shopping for other candidates to possibly replace interim U.S. Attorney Randy Massey, whose term expires in November. The judge declined to elaborate on the court's reasons.
|Edmund Booth Jr.*||Southern District of Georgia|
|George Cardona*||Central District of California|
|James Dedrick||Eastern District of Tennessee|
|Matt Dummermuth||Northern District of Iowa|
|Charles Gross||Western District of Michigan|
|Karen Hewitt||Southern District of California|
|Randy Massey*||Southern District of Illinois|
|Charles Miller||Southern District of West Virginia|
|Paul O'Brien*||Middle District of Tennessee|
|Rosa Rodriguez-Velez||Puerto Rico|
|Scott Schools||Northern District of California|
|Jeffrey Sullivan||Western District of Washington|
|Jeffrey Taylor||District of Columbia|
|*Denotes interim U.S. Attorneys who were appointed by the attorney general after Congress passed the Preserving United States Attorney Independence Act in June 2007.|
Gonzales appointed Massey, the Illinois office's first Assistant U.S. Attorney, in July, but Massey had been running the office in an acting capacity since March 2006, when then-interim U.S. Attorney Edward McNally's 120-day term expired. The judges will meet on Oct. 4 to discuss his and others' qualifications for the job. Massey, through a Justice Department spokesman, declined to comment.
"Among the people, he'd be considered, but it's fair to consider others," Herndon says. "It's wide open at this point, and we're just happy to look at anyone who's interested."
Herndon says the person the court appoints will likely be replaced once President George W. Bush's term ends. "Who really wants to fill the job for that short a time? It's not going to be an easy task for us."
Nor has it been easy for the administration to ferret out permanent U.S. Attorney candidates. Nearly two dozen of the 93 offices are filled with unconfirmed U.S Attorneys. The ratio of nominations to vacancies is a stark 5-to-23.
"Having 23 of 93 U.S. Attorneys not having a Senate confirmation strikes me as extraordinarily high," says Edward Dowd, president-elect of the National Association of Former United States Attorneys and former U.S. Attorney for the Eastern District of Missouri during the Clinton administration.
Fifteen of the 23 openings are stocked with interim U.S. Attorneys and seven with acting U.S. Attorneys, who under statute can serve 210 days after the vacancy occurs. Paula Silsby, U.S. Attorney in Maine, represents the 23rd vacancy, though she's outlasted many of her Senate-confirmed peers. Silsby was appointed by the local federal court in September 2001.
"Twenty-three is a very disturbing number," says a staffer to a Democratic senator on the Senate Judiciary Committee, who asked to remain anonymous. "It's not like [the Justice Department] has been floating names and getting shut down. They just haven't been floating names."
McKay suspects the department is content to bide its time. "[Justice officials] are saying, 'We have qualified people from inside the U.S. Attorney offices, and if they're appointed by the chief judge, that will be fine.' If the chief judge appoints someone else and they don't work out, they'll use that as grist for future arguments that the attorney general should have the power to appoint interim U.S. Attorneys indefinitely."
The Justice Department, in an e-mailed statement, said that filling a vacant U.S. Attorney post is time-consuming (it takes an average of 331 days, according to department figures) and frequently depends upon the cooperation of politicians from the nominee's state.
"We're working as quickly as possible to identify individuals for nomination and Senate confirmation. This can be a lengthy process, which often involves working closely with home state senators," the department's statement said.
Iglesias, who is working on a book on the U.S. Attorney firings due out in April, can attest to the laborious nature of the confirmation process. It's a powerful deterrent for some nominees, he says.
"Under the best of circumstances, it takes about six months. They conduct a rigorous background check going back to your 18th birthday -- that's a long way back. It takes a lot of manpower and a lot of time," Iglesias says. "You're asking a lot."
An even thornier issue is asking capable candidates to join a department throttled by politicization and morale problems, Iglesias says.
"I don't think you're going to see a real surge in applications until a new administration comes in," he says.
The court appointment process for temporary U.S. Attorneys had been around for more than 100 years before it was suspended in 2006. Congress restored it in June of this year with the Preserving United States Attorney Independence Act.
As Herndon describes the process, the courts' active judges discuss the interim U.S. Attorney's performance, discuss potential replacements and then put the appointment to a voice vote, unless a judge requests otherwise.
The Administrative Office of the U.S. Courts keeps no records of how often judges have rebuffed U.S. Attorneys, but when the Justice Department was battling Congress over the issue this year, officials cited numerous instances in which the judges sacked the interim U.S. Attorneys and replaced them with inferior candidates, including a case in 1987 where a court appointee in the Southern District of West Virginia started prying into ongoing public integrity investigations involving both the mayor of Charleston and the governor. She was replaced three weeks later. The department also argued that the court's power created confusion in instances where the judges took no action after 120 days, leaving an office empty while the attorney general scrambled to appoint another interim.
Chief Judge Roger Hunt of the U.S. District Court for Nevada says the practicality of the process outweighs the risks.
"That's the way it has been done, and the reason I think it's been better that way is that the judges know the attorneys in question," says Hunt, whose district is overseen by Acting U.S. Attorney Steven Myhre. "The judges are more inclined to find someone who will do the job well and do right, as opposed to having a political aspect to their decisions."
He adds that Myhre, who was the first Assistant U.S. Attorney before taking over in March, has run the office well.
Early next month, a committee of active judges at the U.S. District Court for the District of Columbia will meet to discuss Taylor's appointment, according to a spokesman for Chief Judge Thomas Hogan. The last time the judges convened for a U.S. Attorney appointment was in September 2004, when they extended Kenneth Wainstein's stay. Wainstein moved to the Justice Department's National Security Division in September 2006, and Taylor was appointed to replace him. He, too, is expected to win the court's OK, though Taylor's nomination has languished in Congress for months.
"Mr. Taylor's leadership has rendered a very positive effect on morale," U.S. District Judge Ricardo Urbina says. "He has a reputation for being fair-minded and progressive."
Taylor, who declined to comment, most recently proposed a new program in which lawyers from private firms would cycle into the U.S. Attorney's Office as special prosecutors in D.C. Superior Court, giving them trial experience, their firms a pro bono opportunity and D.C. a larger staff amid a budget crunch. It's a plan that will take much longer than another month to see through.
His main criticisms have been indirect: He began his career as a federal prosecutor in California before arriving at the Justice Department in 1999, which proponents for an elected local prosecutor say makes him an outsider. Upon his appointment, D.C. Delegate Eleanor Holmes Norton (D) called the District's U.S. Attorney's Office a patronage post for Washington insiders and said Taylor's experience brought nothing to bear on local issues. Norton declined to comment for this story.
Taylor was also counselor to Gonzales before his appointment to the D.C. office, which some committee staffers say may be stalling his nomination. Others, though, say his nomination is suffering because he has no home state senators to champion his cause. "No one opposes him, but no one is really pushing for him to be able to get a hearing and have a vote," says Alan Hoffman, chief of staff to Sen. Joseph Biden Jr., D-Del., who sits on the Judiciary Committee. "When it comes to a vote, I predict that it will be unanimous in terms of support for him."