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WASHINGTON-The old way of appointing interim U.S. attorneys was constitutionally sound, many legal experts agree. And the new way of appointing interim U.S. attorneys is constitutionally sound, they add. The only real question now for the U.S. Senate is what is the best way of appointing those officers-constitutionally and otherwise. Recent fallout from the firing of seven U.S. attorneys revealed that senators last year-some knowingly and others unknowingly-waived their advise and consent power by giving the attorney general the sole authority to appoint interim U.S. attorneys to serve indefinitely when vacancies occurred. The change in the process came at the request of the U.S. Department of Justice and was inserted into the renewal of the USA Patriot Act that was subsequently adopted by both chambers of Congress. The proverbial “sleeping giant” awakened in the ensuing controversy surrounding the unexplained requests for the resignations of U.S. attorneys in Arizona, Arkansas, Nevada, New Mexico, San Diego, San Francisco and Seattle. Last week, the Senate Judiciary Committee held a hearing not just on whether those resignation demands were purely political and not performance-based, but also on whether to change the appointment process again. At the end of the week, some consensus had emerged that perhaps the old way was the best way. The Judiciary Committee on Feb. 8, voting 13-6, approved a bill returning the law to its pre-Patriot Act form. Under prior law, for almost two decades, the attorney general could appoint someone to fill the vacancy for 120 days. If no permanent replacement was nominated by the president and confirmed by the Senate at the end of 120 days, the chief judge of the federal district in which the vacancy occurred would appoint an interim prosecutor to serve until the president acted. But the Justice Department last week did not endorse a return to prior law. “We supported what was done in the Patriot Act,” said Deputy Attorney General Paul McNulty. “It solved a problem that comes up occasionally. We support the law as it currently stands.” And the department is defending the current law right now in Arkansas where, McNulty candidly told the Senate committee, well-respected U.S. Attorney H.E. Bud Cummins had been replaced, not for cause, but to give the office a “fresh start” with J. Timothy Griffin, former aide to White House senior political adviser Karl Rove and a former spokesman for the Republican National Committee. Little Rock, Ark., criminal defense attorney John Wesley Hall has challenged the constitutionality of Griffin’s appointment in a client’s criminal case. “I’m challenging the fact that this guy is sitting in this office and he never has to go before the Senate for confirmation,” Hall said. “To me, this cuts right to the heart of the appointments clause.” The occasional “problem” that the department most often offers as justification for the change in the law last year occurs when judges do not defer to the department’s choice for the interim position. That happened in South Dakota when the department reportedly asked U.S. District Judge Lawrence Piersol to reappoint Michelle Tapken as acting U.S. attorney when her initial appointment was expiring. Piersol, instead, appointed former Republican state Attorney General Mark Meierhenry, with the concurrence of the other two active district court judges. Tapken resigned and the department asked a U.S. district judge in Oklahoma to swear in Steven Mullins, a deputy U.S. attorney there, as South Dakota’s interim U.S. attorney. The conflict was resolved when Mullins was named U.S. attorney in a recess appointment. Those conflicts, as well as separation-of-powers concerns, are avoided when judges are removed from the appointing process, according to McNulty. “It is possible that what may be behind the department’s arguments is its concern about the unitary theory of the executive,” said constitutional law scholar Michael Gerhardt of the University of North Carolina School of Law. “They may feel these are really executive officers and therefore only the president or someone under his control should have the authority to exercise executive power. I’m going to surmise that may be why the department doesn’t want to uphold a court’s power here.” But as long as U.S. attorneys are considered “inferior officers” under the Constitution, as they are now, the Constitution allows Congress to forgo its advise and consent power and to give the appointing authority to the president alone, heads of departments or to courts, said separation-of-powers scholar Peter Shane of Ohio State University Michael E. Moritz College of Law. “What’s interesting about all of this, in part, is: This is a potential constitutional-theory nightmare for the Bush administration,” he said. “On the one hand, of course they would want to defend the legality of the interim appointments by the attorney general and that defense depends on the characterization of U.S. attorneys as inferior officers. On the other hand, I’m guessing they wouldn’t be too happy about judicial appointment of these folks.” There are only two ways around the problem, added Shane. One: to argue there is something constitutionally incongruous about vesting the appointment in a court of law. But the Supreme Court in Morrison v. Olson, 487 U.S. 654 (1988), appears to have answered that by finding nothing incongruous about judicial appointment of an independent counsel, he said. Or, two: to argue that U.S. attorneys are not inferior officers. “Of course if they’re not inferior officers, the attorney general can’t appoint them either. Only the president can.” The recent controversy ultimately is about the department’s desire to consolidate and centralize power, said former federal prosecutor Laurie Levenson of Loyola Law School, Los Angeles, who also testified last week. “There’s nothing unconstitutional here” in the old or current process, she later said, adding, “It’s a question of how does Congress want to exercise its power. Does it want to give power to the executive branch to bypass the confirmation process? I’m not sure they intended to do that last year. Now they’re paying attention and they care.”

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