LEGISLATIVE BULLETIN | March 14, 2007

S. 214, The Preserving United States Attorney Independence Act of 2007

Summary and Background 

On January 9, 2007, in the aftermath of the firing of eight United States Attorneys for apparently political reasons, Senator Feinstein introduced S. 214, the Preserving United States Attorney Independence Act of 2007. On February 8, the Senate Judiciary Committee passed the bill, as amended, on a bipartisan 13-6 vote. On February 12, the bill was favorably reported out of the committee without a written report and placed on the Senate Legislative Calendar. 

There are 93 U.S. Attorneys for 94 districts, with Guam and the Northern Mariana Islands sharing one U.S. Attorney. By law, U.S. Attorneys are appointed to four-year terms by the President of the United States with the advice and consent of the Senate. If at the end of a four-year term a successor has not been named, the U.S. Attorney may continue to serve. In the event of a vacancy, interim U.S. Attorneys may be appointed. 

Until 1986, interim U.S. Attorneys were appointed by their respective district courts and were allowed to serve until the vacancy was filled by a U.S. Attorney nominated by the President and confirmed by the Senate. In 1986, the law was changed to first allow the Attorney General to make an interim appointment for 120 days, provided the appointee was not a person for whom the Senate had refused to give advice and consent. If a successor was not named at the end of the 120 day period, then the district court would appoint a U.S. Attorney to serve until the vacancy was filled. This process remained unchanged for twenty years. 

In 2006, as part of the Reauthorization of the Patriot Act (P.L. 109-177), the process was altered to eliminate appointments by the district court and to allow the Attorney General to appoint an interim U.S. Attorney indefinitely, or until the vacancy is filled by a U.S. Attorney nominated by President and confirmed by the Senate. The prohibition on nominating a person for whom the Senate refused to give advice and consent remains. 

S. 214would reinstate the process that existed prior to the 2006 change.

 

Major Provisions

Section 2:S. 214 would amend the United States Code (Title 28, Section 546) to require an interim appointment made by the Attorney General to expire after 120 days or when a successor is nominated by the President and confirmed by the Senate, whichever comes first. If at the end of the 120 day period no successor has been confirmed, the relevant district court would be authorized to appoint an interim U.S. Attorney to serve until the vacancy is filled. 

Section 3:The amendments made by S. 214 would take effect on the date of enactment.

The legislation would also terminate existing interim appointments 120 days from enactment, or upon confirmation of a successor, whichever comes first. Similarly, if at the end of the 120 days no successor is in place, the district court would be authorized to appoint an interim U.S. Attorney to serve until the vacancy is filled.

 

Legislative History

On January 9, 2007, Senator Feinsteinintroduced S. 214, the Preserving United States Attorney Independence Act of 2007. The bill was originally co-sponsored by Senator Leahyand, at this time, has 11 other co-sponsors: Senators Cantwell, Feingold,Klobuchar, Levin, Lincoln, Murray, Pryor, Schumer, Specter, Stabenow, and Whitehouse. 

On February 8, the Senate Judiciary Committee adopted the measure, as amended, on a 13-6 roll call vote, with 10 Democrats and 3 Republicans (Senators Specter, Hatch, and Grassley) voting in favor of the legislation. On February 12, S. 214 was favorably reported out of the committee without a written report and placed on the Senate Legislative Calendar. 

On February 15, Senator Leahyasked that the Senate take up and pass S. 214 by unanimous consent, but the effort was blocked by the minority. 

The Senate Judiciary Committee held a two-part hearing on the firing of the eight U.S. Attorneys, entitled “Preserving Prosecutorial Independence: Is the Department of Justice Politicizing the Hiring and Firing of U.S. Attorneys?,” on February 6 and March 6.

On January 19, Representative Berman introduced a similar bill, H.R. 580, in the House of Representatives. H.R. 580 differs from S. 214 in that it does not apply the 120 day expiration period and judicial appointment provisions to interim appointments existing on the date of enactment (Section 3).

 

Expected Amendments

As of this writing, only three amendments from Senators Kyl, Sessions, and Leahy, are expected to be offered: 

• Senator Leahy’s amendment would clarify that the U.S. Code section amended by S.214 is the exclusive means for appointing an interim U.S. Attorney. 
   
• Senator Kyl’s amendment would repeal the interim appointment authority, require the President to nominate a permanent U.S. Attorney within 120 days of the vacancy, and require the Senate to vote on the President’s nominee within 120 days of receiving the nomination.
   
• Senator Sessions’s amendment would place restrictions on the district courts’ power to appoint interim U.S. Attorneys by requiring a court to appoint only an employee of the Department of Justice or someone who is a Federal law enforcement officer. Further, the appointee could not be under investigation or have been sanctioned by the Department of Justice or another Federal agency. A court would also be required to notify the Attorney General of an appointee’s name at least seven days prior to making the appointment. 

Additional information will be distributed on the DPC-Judiciary email list as it becomes available.

 

Statement of Administration Policy

No Statement of Administration Policy has been issued for S. 214. Attorney General Gonzales, however, has indicated that the Administration will no longer oppose the legislation. (WashingtonPost, “Gonzales Yields On Hiring Interim U.S. Attorneys,” 03/09/07.)

 

Congressional Budget Office Estimate

On February 8, 2007 the Senate Judiciary Committee requested a cost estimate from the Congressional Budget Office (CBO). On February 13, CBO reported that S. 214 would have no significant impact on the federal budget and would not affect state, local or tribal budgets.
 

Additional Reading

CRS Report

Kevin M. Scott, “U.S. Attorneys Who Have Served Less than Full Four-year Terms, 1981-2006,” February 22, 2007, Order Code RL33889.

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