High-profile cases to test wording of US attorney law from 2007

WASHINGTON — Eighteen years ago, amid a George W. Bush-era controversy over the firing and appointment of U.S. attorneys, then-Sen. Dianne Feinstein and a group of other senators advocated on the chamber floor for a solution: restore a 120-day cap on the executive branch’s interim appointment power.

“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 will fall to the district court,” the late California senator said of the 2007 legislation known as the Preserving United States Attorney Independence Act. It passed 94-2.

Now, the wording of that statute is at the center of the high-profile criminal cases against former FBI Director James B. Comey and New York Attorney General Letitia James, prosecutions widely seen as part of a retribution campaign from President Donald Trump against perceived political adversaries.

The defense teams argue that law limits the Justice Department’s interim appointment power to 120 days total. But the Justice Department contends the wording allows for an attorney general to make multiple interim appointments and that a new 120-day clock starts for each one.

The government’s reading would appear to undermine what lawmakers at the time said they intended to accomplish with the law, according to the congressional record. Critics say the government’s reading would potentially allow an administration to perpetually fill U.S. attorney posts with a string of appointees without ever having to get Senate approval.

The arguments are set to play out Thursday inside a federal court in Alexandria, Va., where a judge will consider whether Trump ally Lindsey Halligan was properly appointed under the statute as interim U.S. attorney for the Eastern District of Virginia.

Both Comey and James are urging the federal judge to throw out their indictments, citing arguments that Halligan’s appointment is invalid.

Congress wanted to act after a provision included in a 2006 reauthorization of the PATRIOT Act allowed the attorney general to appoint interim U.S. attorneys for an indefinite period of time.

Lawmakers also sought to respond to a searing controversy shaking the Bush administration Justice Department. A slate of U.S. attorneys had been told to resign in 2006. It prompted accusations that partisan politics played a role, and spurred questions over if the firings were intended to influence certain prosecutions.

“Less than one year after receiving this new authority, serious allegations and abuse of the process have come to light,” Feinstein said in a March 2007 floor speech.

The law, known as Section 546, states that an attorney general can appoint a U.S. attorney for a district “in which the office of United States attorney is vacant.”

They can serve until either the Senate confirms a U.S. attorney for that district, or “the expiration of 120 days after appointment by the Attorney General under this section.”

If that appointment expires, “the district court for such district may appoint a United States attorney to serve until the vacancy is filled.”

Earlier this year, Erik Siebert was appointed as interim U.S. attorney for the Eastern District. When 120 days ran out, the district court continued having Siebert in the temporary role.

After Siebert left office, Attorney General Pamela Bondi appointed Halligan, who in short order obtained grand jury indictments against Comey and James.

The Justice Department argues the 120-day time limit applies on a per-appointment basis. Nothing in the text bans the attorney general from making additional appointments of interim U.S. attorneys after 120 days, the government argues.

“Congress did not hamstring the Attorney General with an artificial, one-time-only appointment window,” the government said in its brief.

And the government argues the statute means the attorney general must revisit the interim appointments every 120 days.

“That process provides political accountability, ensuring that an appointee without Senate confirmation cannot serve indefinitely without frequent, personal review by the Attorney General,” the brief states.

Senate debate

Bill sponsors in 2007 explicitly said their measure was aimed at stopping the attorney general from having the power to indefinitely appoint top prosecutors, lamenting that such a system circumvented the Senate.

A news release that year from Feinstein’s office said the bill would allow the attorney general to appoint an interim U.S. attorney for 120 days. After that, if there was no confirmed nominee, the power to appoint an interim U.S. attorney would fall to the district court, it said.

Then-Sen. Carl Levin, D-Mich., said during the floor debate that the relevant district court would be authorized to appoint an interim U.S. attorney if “at the end of the 120-day period no successor has been confirmed.”

Senators said interim U.S. attorneys had historically been appointed by their respective district courts. Under the Reagan administration, the law was changed to allow the attorney general to make an interim appointment for 120 days, Levin said.

Sen. Patty Murray, D-Wash., said in the 2007 floor debate that the change in the PATRIOT Act reauthorization allowed the White House to “install interim U.S. attorneys indefinitely without going through the normal Senate approval process.”

“This legislation will force the White House to work with the Senate and home state Senators,” she said. “This bill is an important step to protecting the U.S. Attorney’s Office from the politicization it has suffered.”

Then-Sen. Robert C. Byrd, D-W.Va., said the 2006 provision allowed the administration to “fire and appoint new U.S. attorneys, whose term in office can be indefinite and never subject to Senate confirmation.”

“What an abomination!” the late senator said from the Senate floor.

Then-Sen. Russ Feingold, D-Wis., criticized the 2006 provision, saying it allowed “the Justice Department to sidestep the confirmation process for U.S. attorneys altogether.”

“There is simply no good reason why the Attorney General needs the power to make indefinite interim appointments. When it exercises that power, the administration cuts Congress, and in the case of my state, the people of Wisconsin, out of that process,” he said.

The Justice Department said some lawmakers wanted to forbid successive appointments. But the statute Congress wrote did not impose an aggregate 120-day limit, the government argues.

It also pointed to floor comments from then-Sen. Jon Kyl, R-Ariz., who argued the bill would not prevent the attorney general from making multiple consecutive 120-day appointments of the same interim U.S. attorney.

The Justice Department’s power of interim appointment authority without Senate confirmation would not be reined in under the bill, he argued.

“The Senate’s prerogatives are not protected, by a system that allows the Attorney General to make consecutive appointments of non-Senate-confirmed U.S. attorneys, which is precisely what the bill before us would allow,” Kyl said.

_____