On May 22, 2007, the House passed the Preserving United States Attorney Independence Act of 2007, S. 214, which reinstates the Senate's role in the U.S. Attorney confirmation process. This bill is designed to help better ensure the independence of U.S. Attorneys - by repealing a provision in a 2006 statute that grants the Attorney General the authority to make indefinite interim appointments of U.S. Attorneys, who can then serve indefinitely without Senate confirmation. This bill was signed into law by the President on June 16.
Under a provision inserted without notice into the USA Patriot Act reauthorization last year, the law was changed so that if a vacancy arises, the Attorney General may appoint a replacement US Attorney for an indefinite period of time - thus completely avoiding the Senate confirmation process. This legislation would restore the US Attorney Senate confirmation process. It would allow the Attorney General to appoint interim U.S. Attorney for 120 days. If after that time the President has not sent up a nominee to the Senate and had that nominee confirmed, then the authority to appoint an interim U.S. Attorney would fall to the district court. This was the law from 1986 to 2006.
U.S. Attorneys are the chief federal law enforcement officer in their federal district - and their independence is critical. U.S. Attorneys play a key role in the nation's federal law enforcement system - exercising the enormous power wielded by the prosecutorial capacity of the federal government. They have to make prosecutorial decisions every day - when to prosecute and when not to prosecute, based on the facts of the case. Although U.S. Attorneys are appointees of the President, the culture of the Justice Department has always been that U.S. Attorneys must be fully independent - not allowing partisan politics to enter into any of their decision-making.
It is key to ensure that U.S. Attorneys are subject to Senate confirmation. Under federal statute, U.S. Attorneys are appointed by the President and are confirmed by the Senate. Senate confirmation is an integral part of our checks-and-balances system. The Senate's advice and consent process formally checks the power of the President by requiring the U.S. Attorney nominee to go through a confirmation process. In addition, traditionally, the President has usually accepted U.S. Attorney nominees for a particular state who are recommended by that state's Senators from the President's political party or other officials in that state from the President's party. This tradition, called “Senatorial courtesy,” has also served as an additional, informal check on the President's appointment power.
The bill would apply to the interim U.S. attorneys who are currently serving in the place of the eight dismissed U.S. Attorneys. This bill would impact the U.S. Attorney openings that were created when the eight U.S. Attorneys were forced to resign by the Bush Administration. It would make sure that interim U.S. Attorneys presently serving do not linger in office without Senate confirmation. Especially in light of recent information about the dismissals of U.S. Attorneys, this bill will be a step towards restoring the public's faith in an independent system of justice. It will help prevent any future abuse or appearance of politicization of the U.S. Attorney positions at the Department of Justice.