The provision amends 28 U.S.C. §546 and states the following:
(c) A person appointed as United States attorney under this section may serve until the qualification of a United States Attorney for such district appointed by the President under §541 of this title.
There is no time limit within which the President must submit the nomination to the Senate for the “advice and consent” required by the Constitution and § 541 for a permanent appointment. The repealed language of §546 set the time limit for an interim appointment at 120 days so there would not be a US Attorney that went without confirmation by the Senate. The USA Patriot Improvement and Reauthorization Act was signed in to law and became Pub. L. 109-177 on March 9, 2006 with §502 which grants the power to appoint “permanent” interim US Attorneys.
The provision amends 28 U.S.C. §546 and states the following:
(c) A person appointed as United States attorney under this section may serve until the qualification of a United States Attorney for such district appointed by the President under §541 of this title.
There is no time limit within which the President must submit the nomination to the Senate for the “advice and consent” required by the Constitution and § 541 for a permanent appointment. The repealed language of §546 set the time limit for an interim appointment at 120 days so there would not be a US Attorney that went without confirmation by the Senate.
This fuels the current controversy surrounding the resignation of 7 former U.S. Attorney’s four who appeared before the U.S. Senate Judiciary Committee yesterday to testify about their cases. This was the second in a series of hearings looking into the employment practices of the Administration.
Official Photo of former U.S. Attorney David Iglesias
Source: Timeless Images Photography
The most obvious of the cases is that of David Iglesias who received phone calls from lawmakers about a public corruption case involving Democrats shortly before the election last November. Sen. Pete Domenici and Rep. Heather Wilson both admitted making the calls but denied applying pressure to Mr. Iglesias, who claims that Mr. Domenici asked specifically about timetables and speeding up indictments. This behavior is in violation of the ethics rules of the Senate and House as well as possibly the U.S. Code.
However, Mr. Graham explained while Mr.. Sessions defended the Administration’s actions. Mr. Sessions was more probing in his questions and comments. Mr. Graham simply made some comments about how long their stints were, that they served at the pleasure of the President (to which they all agreed) and did not agree with “besmearching their records.” At the end he claimed that their files were out of order with the Department of Justice. He also told us that he believed in cycling as many people through the experience of being a US Attorney as possible.
This led to the introduction of S. 214 Preserving United States Attorney Independence Act of 2007 which would repeal §502 of Pub. L. 109-177 and reinstate the old rules. The bill passed out of committee and was placed on the Senate calendar on 12 February. Its movement has been impeded by Mr. Kyl who is requesting that amendments be allowed.
Mr. Kyl fears the subsection removed by the Patriot Act because he believes that it violates the separation of powers by allowing the court to “appoint” someone to fill the vacancy permanently. United States v. Santana, 83 F.Supp. 2d 224 (1999 DC Puerto Rico) holds that as long as the President retains the right to replace the judicially selected interim with a nominee of his choosing that 28 U.S.C. §546(d) does not violate the separation of powers doctrine. The President always retains the authority to nominate someone under §541 to fill the vacancy because this section gives him the power to remove any U.S. Attorney.
The issue with taking the provision out is that either the interim appointment becomes “permanent” or the vacancy may not be filled and create backlogs for the court and unconscionable delays in the administration of justice.
