Won't Somebody Think of the U.S. Attorneys?

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Sen. Dianne Feinstein's bill devolving some of the PATRIOT Act's U.S. Attorney powers away from the White House has passed the Senate. The crucial bit:

Struck Out>: Section 546 of title 28, United States Code, is amended to read as follows:

Sec. 546. Vacancies

'The United States district court for a district in which the office of the United States attorney is vacant may appoint a United States attorney to serve until that vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court.'. < Struck Out

Section 546 of title 28, United States Code, is amended by striking subsection (c) and inserting the following:

'(c) A person appointed as United States attorney under this section may serve until the earlier of--

'(1) the qualification of a United States attorney for such district appointed by the President under section 541 of this title; or '(2) the expiration of 120 days after appointment by the Attorney General under this section.

(d) If an appointment expires under subsection (c)(2), the district court for such district may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court.'.

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  1. Bush & Co. may have made a hash of this, but there are good separation-of-powers reasons to have the Executive appoint interim U.S. Attorneys. That the de jure Presidential power to appoint Federal judges and U.S. Attorneys, subject to Senatorial assent has devolved into a de facto Senatorial spoils system has never much pleased me.

    Kevin

  2. Well, as this incident’s shown, the executive is no less inclined to use it for spoils than the legislature. I do think it’s also shown that, unless there’s going to be a massive change in how the federal government exercises its power, it’s good to have different bodies in charge of hiring and firing.

  3. NotThatDavid:

    I suggest that you propose a Constitutional Amendment that legalizes those kinds of appointments, then. Until one passes, I’ll stick with the principle that the President appoints his cabinet and the subordinate officials of its constituent departments. Last I checked, the U.S. Attorneys worked for the Dept. of Justice, not the Federal Court system, and answer to the AG, not the Chief Justice, and ultimately to the President.

    I’m also not too fond of the Congress claiming the power to appoint members to various Federal commissions. If the President makes the appointments, but the law calls on the Congressional leadership to suggest candidates, that would be fine with me. I don’t think that ordinary legislation can constrain a power that’s constitutionally established, other than in the founding document. In this case, that would be by the “advise and consent” clause, though the President’s ability to make recess appointments can sometimes thwart that.

    If I were President, and some U.S. Attys. I had hired were emphasizing certain types of prosecutions and ignoring those that I had decided, as a matter of policy, merited more attention, I’d can them, too. Sticking my nose into any individual case mught be obstruction of justice, but a general edict to, say, shift emphasis away from prosecuting small-time drug “offenses,” and spend more effort on bank robbery and kidnapping ought to be obeyed. If the Congress thought I wasn’t faithfully executing the laws, they could impeach me.

    Kevin

  4. I’m confused: What is the role of the Senate in these appointments?

    I’m fine with political appointees being fired on a political whim. (Although if you happen to fire somebody in the middle of his corruption investigation, that sure looks like an attempt to obstruct justice, at least to this non-lawyer.) I just don’t want new political appointees coming in without Senate approval.

  5. I too am confused.

  6. towards the end: “the district court for such district may appoint a United States attorney to serve ”

    The court gets to appoint one of the parties to a legal case? How can that work? This system is stacked against the defendant, or can they get appointed by the court as well.

    reminds me of the withholding of vital evidence in the med-marijuana cases,

  7. kevrob,

    An executive spoils system is more to your liking? Do you know that a successful career prosecutor was removed in the Western District of Arkansas because a longtime staffer to Karl Rove wanted the job?

    At least if there are two branches involved, there’s some sort of chance they’ll check each other’s excesses.

  8. “The court gets to appoint one of the parties to a legal case? How can that work?”

    That’s the way it was for decades, before the USA PATRIOT Act. I don’t recall that process ever producing a scandal.

  9. I know that courts appoint counsel in certain types of cases, for example, guardians ad litem in family law. Those lawyers, and even public defenders, don’t have the government as a client. Federal prosecutors are extensions of the AG, and through that office, of the President.

    The check that joe is in favor of should come through the Senatorial confirmation process. If these were “non-political” civil service positions all this could be avoided, but then we’d have bureaucrats who weren’t politically accountable, and who could conceivably resist the Dept. of Justice when and if the President ordered a shift in priorities. We do want our elected officials in control of policy, don’t we? I did criticize the Senate for its tendency to rubber-stamp Presidential appointments that affect only one or a few states, that have been vetted by the Senators elected from that state or region. This practice, used for Federal judges as well as prosecutors, effectively stands the nomination/ confirmation process on its head.

    I could live with a compromise for interim appointments other than recess ones along these lines: the Prez informs the Chair and Ranking member of the relevant Senatorial Committee (Judiciary, I think) who he likes for the job. They poll the members of the committee, and either let it slide or suggest that he try again. A full Senate vote would only be necessary for a full-term appointment, and controversial nominees would face hearings, especially under divided government.

    This is all a process issue, and we libertarians often don’t get as concerned about process as we do about the desired ends of government. We do get het-up about the niceties when someone is criminally prosecuted or sued, as we should. Constitutional restrictions on government are meant to limit government, especially as regards the arbitrary use of power. I’m against that, even if the size and scope of government, even one that operates within the bounds of due process, has been Problem #1 for some time. There’s a certain type of goo-goo who demands that I vote for a squeaky-clean statist over some mildly corrrupt pol whose natural tendency is to leave me the hell alone. I resist such blandishments, and piss off the goo-goos when I point out that while the second kind of grafter may be stealing thousands under the able, the first kind will vote to transfer millions or billions to his allies, all legal-like. Plague on both of them, I say.

    Kevin

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