Re: The Next Big Problem at the Justice Department?

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In his comment to my earlier post, Cfaller96 had some good questions regarding just how the Justice Department was given this new, broader power to replace US attorneys, which it got as part of the renewal of the Patriot Act:

Something’s always bothered me about that PATRIOT act provision that was slipped in by a Specter staffer (that enable the politicization of USAs). Specifically:

– Is it normal for a staffer to essentially rewrite legislation outside of committee?
– Is it normal for a staffer to do that without the Congressman’s or Senator’s knowledge?
– If not, wouldn’t this constitute a firing offense?
– And where is the staffer that wrote this provision in? Is he still working for Senator Specter? If so, why?

As I had no idea, I asked those same questions of Specter’s staff today, and they referred me to this explanation, which he offered at a Senate hearing on Feb. 6. It doesn’t quite answer all of Cfaller’s questions, but it at least gives the context. And, yes, it is my observation that this is very typical of the way the sausage gets made. Especially in the case of these enormous bills, much of the real writing work is done on a staffer-to-staffer level, with members trusting their aides to protect them and the people who elected them. Most of the time, this is efficient and perfectly harmless, but occasionally–as Specter himself seems to acknowledge–lawmakers open the door to consequences they never intended.:

The first I found out about the change in the PATRIOT Act occurred a
few weeks ago when Senator Feinstein approached me on the floor and made
a comment about two U.S. attorneys who were replaced under the authority
of the change in law in the PATRIOT Act, which altered the way U.S.
attorneys are replaced.

Prior to the PATRIOT Act, U.S. attorneys were replaced by the
attorney general for 120 days, and then appointments by the court, or
the first assistant succeeded to the position of U.S. attorney. And the
PATRIOT Act gave broader powers to the attorney general to appoint
replacement U.S. attorneys.

I then contacted my very able chief counsel, Michael O’Neill, to
find out exactly what had happened. And Mr. O’Neill advised me that the
requested change had come from the Department of Justice, that it was
handled by Brett Tolman, who is now the U.S. attorney for Utah and that
the change had been requested by the Department of Justice because there
had been difficulty with the replacement of a U.S. attorney in South
Dakota, where the court made a replacement which was not in accordance
with the statute. Hadn’t been a prior federal employee and did not

And there was also concern because, in a number of districts, the
courts had questioned the propriety of their appointing power because of
separation of powers. And, as Mr. Tolman explained it to Mr. O’Neill,
those were the reasons and the provision was added to the PATRIOT Act,
and, as I say, was open for public inspection for more than three months
while the conference report was not acted on.

If you’ll recall, Senator Schumer came to the floor on December
16th, said he had been disposed to vote for the PATRIOT Act, but had
changed his mind when the “New York Times” disclosed the secret wiretap
program, electronic surveillance. May the record show that Senator
Schumer is nodding in the affirmative. There’s something we can agree

In fact, we agree sometimes in addition. Well, the conference report
wasn’t acted on for months, and at that time this provision was subject
to review. Now, I read in the newspaper that the chairman of the
Judiciary Committee, Arlen Specter, slipped it in, and I take umbrage
and offense to that. I did not slip it in and I do not slip things in.
That is not my practice.

If there is some item which I have any idea is controversial, I tell
everybody about it. That’s what I do, so I found it offensive to have
the report of my slipping it in. That’s how it got into the bill.

Now, I’ve talked about the matter with Senator Feinstein, and I do
agree that we ought to change it back to where it was before. She and I,
I think, will be able to agree on the executive session on Thursday. And
let’s be candid about it. The atmosphere in Washington, D.C., is one of
high-level suspicion. There is a lot of suspicion about the executive
branch because of what’s happened with signing statements, because of
what’s happened with the surveillance program.

By the way, don’t miss where Specter said Brett Tolman is today, which is an interesting wrinkle in this whole saga: He’s got a great new job–as U.S. Attorney in Utah.