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Patriot Act Changed Rules on US Attorney Appointments

By January 20, 2007

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Tim Griffin
Tim Griffin
Courtesy DOJ
The Patriot Act Reauthorization Bill of 2005 is news today because it has enabled the President -- through the office of the Attorney General -- to arrange for US Attorneys to resign and then to replace them with political appointees, in the pejorative sense of that phrase, who do not need to be confirmed by the Senate.

Because of the changes in PL 109-177, the March 2006 reauthorization of the Patriot Act, they are appointed until the end of the President's term, instead of for only 120 days. To say that this is a major change to the confirmation process is an understatement. The question of how this happened is discussed elsewhere.

Putting A Face To The Action
One of the most controversial of these appointments is that of J. Timothy Griffin, the new US attorney for the Eastern District of Arkansas.

What makes Griffin, 34, qualified for this position? The Arkansas Democrat Gazette notes that he was "once an aide to former presidential adviser Karl Rove." The Times Record (Ft. Smith, AK) says he was Rove's "director of opposition research."
His legal credentials include a stint in the U.S. attorney’s office in Little Rock in 2001-02, as a military prosecutor at Fort Campbell, Ky., and as a Judge Advocate General in Iraq.
Given that another controversial Bush appointee -- Charles "Cully" Stimson -- also cites being a JAG as one of his principle legal accomplishments, this resume does little to assure me of Griffin's competence.

Talking Points Memo has more:
[F]or the last ten years -- with the exception of two one year stint -- he has always worked as a Republican party opposition researcher digging up dirt on Democrats. Deputy Research Director for the RNC from 1999-2000. Research Director for the RNC from 2002-2005. Oppo Research Director for Karl Rove 2005-2006. Prior to 1999? Well, he was associate independent counsel investigating Henry Cisneros from 1995-96. After that he went to work for Dan Burton on the Hill to investigate Asian money contributions to the DNC.

Back in 2000, when he was in charge of digging up dirt on Al Gore, he apparently had a poster hanging on the wall behind his desk which read: "On my command - unleash hell on Al."
US Capitol
Normal Process
So what is the normal process of appointment to this executive branch job? The Arkansas Democrat Gazette explains:
Normally, the White House requests names of potential replacements for U. S. attorneys and other positions from the state’s senators or congressmen, and then chooses a nominee from among those names. The nominee then must undergo a background check and Senate confirmation — which could be tough for Griffin in the new Democrat-controlled body. Griffin, a longtime behind-the-scenes Republican operative and political strategist, has worked for the Republican National Committee.
According to Michael Teague, spokesman for Sen. Mark Pryor (D-AK), "There are 100 U. S. attorneys around the country. The question is, what makes this one different ? The U. S. marshal [candidate, J. R. Howard, also for the Eastern District of Arkansas ] is going through the process. Why isn’t the U. S. attorney ?"

Griffin is replacing Bush appointee Bud Cummins, 47; he has held this position since 2001. There have been no allegations of wrong-doing.
Teague noted that while Cummins has said for several months that he is leaving to pursue other job opportunities before his presidential appointment expires in two years, Cummins, 47, has also said publicly that he loves the job and would stay forever if he could.

"Within legal circles and in the community, it’s been viewed as him being forced out to open this position for Tim," Teague said.
Circumvention Not New
The Bush Administration -- taking a page out of the Reagan playbook -- has made an art out of circumventing Constitutionally-granted Senatorial oversight of executive appointees. The term for this practice is "recess appointment" -- but these only last as long as a Congressional session.

The highest profile recess appointment was John Bolton's promotion to the UN, but it is by no means the only one.

Feinstein Statement
Sen. Dianne Feinstein (D-CA) gave a floor speech Wednesday, putting the issue of appointments -- and the Congressional "oopsie" about The Patriot Act -- into the public record:
Peter Nunez, who served as the San Diego U.S. Attorney from 1982 to 1988, has said, ‘This is like nothing I've ever seen in my 35-plus years.'

He went on to say that while the President has the authority to fire a U.S. Attorney for any reason, it is ‘extremely rare' unless there is an allegation of misconduct...

Around the country, though, U.S. Attorneys are bringing many of the most important and complex cases being prosecuted. They are responsible for taking the lead on public corruption cases and many of the antiterrorist efforts in the country...

Clearly, the President has the authority to choose who he wants working in his administration and to choose who should replace an individual when there is a vacancy. But the U.S. Attorneys' job is too important for there to be unnecessary disruptions, or, worse, any appearance of undue influence. At a time when we are talking about toughening the consequences for public corruption, we should change the law to ensure that our top prosecutors who are taking on these cases are free from interference or the appearance of impropriety. This is an important change to the law. Again, I will question the Attorney General Thursday about it when he is before the Judiciary Committee for an oversight hearing.
Feinstein and her staff had plenty of time to read the bill that she voted "yes" for in March 2006. I have no sympathy for Senators and Representatives who, after the fact, complain about legislation having language that they were not aware of. FIX the process, why don't you?

Gonzales Statement
Attorney General Alberto Gonzales insists that the AG's office is "fully committed to ensuring that with respect to every position we have a Senate-confirmed, presidentially appointed U.S. attorney."
In the year since the reauthorization took effect, 11 federal prosecutors have resigned or announced their resignations - some at the urging of the Bush administration, Gonzales said. He described a range of reasons for ousting sitting U.S. attorneys, from their job performance to their standing in their communities, and noted that federal prosecutors serve at the pleasure of the president.

Gonzales repeatedly cited the Patriot Act when discussing the replacements, but twice refused to say when asked whether any of the personnel changes at issue pertained to national security.

Since when has this Administration not used every inch of power -- and then some -- that has been granted by Congress? If the AG isn't interested in bypassing the Senate's advise-and-consent role, then why did the Republican party insert this clause into the bill?

And when will Congress police itself and refuse to include language in a bill that has no nexus to the primary language?


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January 20, 2007 at 6:04 am
(1) Ali Farajulusmi says:

Thank you for a very enlightening post. The degree to which the present regime has compromised the legal basis of the republic is staggering. The US still looks like a republic in some, increasingly minor parts, but it increasingly looks like what used to be called a dictatorship. I think anyone who looks at the regimes of Papa and Baby Doc Duvalier in Haiti, Mugabe in Zimbabwe, Hussein in Iraq, Milosevic in Yugoslavia, and other places would agree that there are distinct similarities (e.g., nepotism, loss of civil rights, loss of checks and balances, negatively preferential treatment toward certain people groups, etc.).

This reminds me of the question posed after WW2: Are the Germans responsible for Nazism and thus for the Holocaust? Many arguments have been passed on either side, but I find very interesting one that says “No.” The Nazis were not elected on a platform of killing Jews, invading other countries, and making Hitler supreme leader. After the Reichstag fire of 1933, all freedoms were effectively withdrawn; there were no elections, and the public was never polled on political matters. Therefore, they cannot logically be held responsible for the post-election actions of the Nazis.

On the other hand, the US is purported to have re-elected the present regime. Consequently, it seems that one is left with one of two opinions. Either the electronic voting machines were compromised and the present regime did not actually win (so the exit polls) or the American public is effectively and actively complicit in the gradual eroding of the republic and the various foreign policy debacles in which the US has embroiled itself. I state this starkly but am open to hearing other takes on the situation.

March 15, 2007 at 11:43 pm
(2) josh r. says:

I haven’t heard anyone talk about this, but surely it has crossed a few minds (I think the talking points writer is hinting at it, for example): Surely the Griffin appointment is about setting up Hillary for an embarrassing media trip back to around 1990 (in the unflattering guise of some kind of criminal investigation), to be executed, say, around October 2008.

Maybe people should stop beating around the bush about this ploy: get the prediction out there as a matter of public knowledge, so that everyone sees it as another karl rove dirty trick the second he pulls the trigger. that’s really the best hope for a richly-deserved backfire.

March 17, 2007 at 7:02 pm
(3) David S. McQueen says:

If no one knows who “slipped” the clause into PL 109-177, how can you claim it’s the Republicans?

Sen. Feinstein’s weeping and wailing about the clause (which she voted for)seems to me to be a bit of histrionic caterwauling.

March 20, 2007 at 2:09 pm
(4) uspolitics says:

Hi, David:

First, the Republicans were in power at the time … so Democrats did little “slipping” of anything.

Second, Specter later admitted to being the author, although I’ve not heard/read any additional explanation. Would love to.

Third, the conference committee process is NOT transparent. I spent more than an hour trying, without success, to figure out who sat on which part of the conference committee (sub-committees).

IMO, the conference committee should NOT be able to include language in a final bill that is not part of one of the two being reconciled.

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