Preserving United States Attorney Independence Act of 2007

Mr. President, I suggest the absence of a quorum.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I rise today to speak in support of S. 214, the bill the leader just referred to. This is a bill that simply reinstates the Senate's role in the confirmation process of U.S. attorneys. It is a bill I introduced with Senator Leahy on January 9, 2007, days after I first learned in early December that officials from main Justice called a handful of U.S. attorneys from around the country and forced them to resign their positions without cause.

At that time, I had very little information and was unaware of exactly what had occurred and why. As I looked into it, I learned that in March of 2006, the PATRIOT Act was reauthorized and a change was made in the law. It was made in conference without Democratic Senators present. To the best of my knowledge, it was made without the knowledge of any Senator, Republican or Democrat. It is my understanding this was a request from the Justice Department that was presented by Will Moschella to the staff of the Judiciary Committee and, without the knowledge of Senators, was put into the bill. It then gave the President the authority essentially to appoint a U.S. attorney without confirmation for the remainder of his term.

The bill, S. 214, that is before the Senate today simply returns the law the way it was before this action took place in March of 2006.

Today, just a little more than 2 months after I first learned about this situation, additional information has come to light. But rather than alleviating the concerns and answering questions, we are now faced with new and more serious allegations. In fact, the big question looming over this debate is whether the Attorney General and others in the Bush administration have misled the Congress and the public. If true, this is very serious.

There are also allegations that the firings were done because the Department of Justice and the White House were both unhappy with some of the U.S. attorneys' handling of public corruption cases. If true this, too, is very serious.

We now know that at least eight U.S. attorneys were forced from office, and that despite shifting rationales for why, it has become clear that politics has, in fact, played some role.

Last week, we learned that the White House was involved in this process and that discussions took place with such prominent figures as Presidential adviser Karl Rove and former White House Counsel Harriet Miers. We also learned last week that these discussions began well over 2 years ago, almost immediately following the 2004 election, and it appears from recently released e-mails that Attorney General Gonzales was personally consulted, even while he was still serving as White House Counsel.

This information also shed new light on who was being targeted for firing and why. It is this last point--why some were targeted--that has served to raise more questions and more significant concerns. We have learned that as many as six of the eight U.S. attorneys who were involved with public corruption cases. While we don't know what role this played in their selection, it is an unavoidable fact that raises serious questions.

Today, as the Senate begins the debate on the Preserving United States Attorney Independence Act, I would like to discuss some of what we have learned in greater detail and some of the reasons this bill is so necessary.

I believe it is important to look at how interim U.S. attorneys have been appointed over the years. There appears to be an assumption by the Bush administration that the Attorney General should have an exclusive authority to appoint interim U.S. attorneys. But, in fact, history paints a much different picture.

When first looking into this issue, I found that the statutes had given the courts the authority to appoint an interim U.S. attorney and that this dated back as far as the Civil War. Specifically, the authority was first vested with the circuit courts in March of 1863. Then, in 1898, a House of Representatives report explained that while Congress believed it was important to have the courts appoint an interim U.S. attorney, there was a problem relying on circuit courts ``since the circuit justice is not always to be found in the circuit and time is wasted in ascertaining his whereabouts.'' Therefore, at that time, the interim appointment authority was switched to the district courts; that is, in 1898 it was switched to the district courts. Thus, for almost 100 years, the district courts were in charge of appointing interim U.S. attorneys, and they did so with virtually no problems.

This structure was left undisturbed until 1986 when the statute was changed during the Reagan administration. In a bill that was introduced by Senator Strom Thurmond, the statute was changed to give the appointment authority to the Attorney General, but even then it was restricted and the Attorney General had a 120-day time limit. After that time, if a nominee was not confirmed, the district courts would appoint an interim U.S. attorney. The adoption of this language was part of a larger package that was billed as technical amendments to criminal law, and thus there was no recorded debate in either the House or the Senate and both Chambers passed the bill by voice vote.

Then, 20 years later, in March 2006--again without much debate and again as a part of a larger package--a statutory change was inserted into the PATRIOT Act reauthorization. This time, the Executive's power was expanded even further, giving the Attorney General the authority to appoint an interim replacement indefinitely and without Senate confirmation.

Unfortunately, not 1 year after securing this new authority, abuses have come to light. Almost immediately after I first spoke about what I had learned in January, the Attorney General called me to tell me that I had my facts wrong. However, he also sent up his staff to confirm that ``less than 10'' U.S. attorneys had been asked to resign on December 7, 2006.

Despite this, the Attorney General adamantly denied politics had any role in the process. In fact, in an interview with an Associated Press reporter on January 16, 2007, the Attorney General was asked about the charges of political motivation, and he responded:

Nothing could be further from the truth.

He further stated in response to your comment, Mr. President, that the Department tried to avoid Senate confirmation to reward political allies:

We in no way politicized these decisions.

Two days later, the Attorney General reiterated this position when he came before the Senate Judiciary Committee on January 18 of this year and said:

I would never, ever make a change in the United States

attorney position for political reasons.

That is a categorical and definitive monosyllabic statement. However, the Department had to backtrack when it became evident that the former U.S. attorney from your State, Mr. President, Arkansas, Bud Cummins, was simply replaced in order to make room for Tim Griffin, who had served as Karl Rove's special assistant and had been in charge of opposition research against Democratic candidates for the Republican National Committee.

Less than a month later, the Deputy Attorney General confirmed this fact when he testified before the Senate Judiciary Committee on February 7, 2007. At that time, he said:

The fact is there was a change made [in Arkansas] that was

not connected, as we said, to the performance of the

incumbent, but more related to the opportunity to provide a

fresh start with a new person in that position.

Deputy Attorney General McNulty, however, went on to say that all the others who were fired were fired for ``performance-related reasons.'' But this, too, was not the final explanation. The Department next tried to justify the firings by arguing that the U.S. attorneys were let go because there were ``policy disagreements.'' Then the Attorney General said that these U.S. attorneys had ``lost [his] confidence.'' So there are three different reasons so far. Now, most recently, the explanation has been that the Department thought it ``could do better''--the fourth explanation.

These explanations are as slippery as they are misleading. Rather, what documents and e-mails demonstrate is that none of these reasons was the deciding factor that led some U.S. attorneys to be targeted for firing. Instead, it appears these individuals lost their jobs because a number of Department of Justice officials and possibly--we don't know but possibly--White House officials did not judge them to be sufficiently loyal or did not like the cases they were prosecuting or simply wanted to put in new, politically connected, young lawyers. It appears this way because contained in the documents that were released last week is an outline of the Department of Justice's plan for how to determine who should be let go and who should stay.

The first step of that plan was to create a new rating system to evaluate all

93 U.S. attorneys. This was to be separate from the independent performance reports, called EARS reports. Those reports routinely occurred and objectively examined each U.S. Attorney's Office by evaluating their prosecution caseloads, their management, their willingness to follow Department priorities, and their ability to work cooperatively with the FBI, with the DEA, and with other client agencies.

This rating system was developed back in February of 2005, and one of the primary factors to be considered was loyalty to the administration.

One e-mail describing the ratings stated:

Recommended retaining strong U.S. attorneys who have

produced, managed well, and exhibited loyalty to the

President and Attorney General. Recommended removing weak

U.S. attorneys who have been ineffectual managers and

prosecutors, chafe against administration initiatives.

Under this system, two of the eight fired U.S. attorneys received strong evaluations and recommended retaining while three received recommended removing.

One of the U.S. attorneys who received a recommended removing rating was Carol Lam from the Southern District of California. She received this low rating despite her many accomplishments and despite her positive performance evaluations. I am familiar with Carol Lam's career because she served in San Diego. In that position, she has taken on some of the biggest cases and really made a positive impact on the community she has served. But that is not just my opinion. Leaders throughout San Diego have sung her praises. Let me give a few examples.

Dan Dzwilewski, head of the FBI office in San Diego:

Carol has an excellent reputation and has done an excellent

job given her limited resources.

Then, when asked whether she had given proper attention to gun cases, he said:

What do you expect her to do? Let corruption exist?

Adele Fasano, the San Diego Director of Field Operations, U.S. Customs and Border Protection, said:

[We have] enjoyed a strong, collaborative relationship with

the U.S. Attorney's Office to combat smuggling activity

through the ports of entry.

City attorney for San Diego, Michael Aguirre, said:

[Carol Lam] has been by far the most outstanding U.S.

Attorney we've ever had . . . she's won a national reputation

as one of the top prosecutors in the country.

This is the city attorney.

Michael Unzueta, Special Agent in Charge, Immigration and Customs Enforcement:

Carol Lam is truly an example of a dedicated public servant

and a law enforcement professional. We will miss her

leadership.

John Cooper, Special Agent in Charge, Naval Criminal Investigative Service:

The departure of Ms. Lam will be a great loss . . . Ms. Lam

is the consummate law enforcement executive who leads by

example.

And Alan Poleszak, Acting Special Agent in Charge, Drug Enforcement Agency:

The on-going prosecution of [the] Javier Arellano Felix

drug trafficking organization is both historic and noteworthy

. . . [Ms. Lam's] commitment to Federal law enforcement in

this judicial district, county, and city, will be missed.

We should take note of the fact that the Arellano Felix organization is one of the largest and most dangerous Mexican drug cartels known. They operate out of Tijuana. They have killed hundreds of people. They have murdered Mexican DAs, they have murdered Mexican judges, and they are a blight. This U.S. attorney took them on. I will tell my colleagues more about that in a moment. The reason Carol Lam was well respected is because she worked hard and she took on the tough fights. She has had success after success. Let me give some examples.

In September of 2005, the president of the San Diego chapter of Hell's Angels pled guilty to conspiracy to commit racketeering. Guy Russell Castiglione admitted he conspired to kill members of a rival motorcycle gang, the Mongols, to sell methamphetamine. In December 2005, Daymond Buchanan, member of Hell's Angels, was sentenced to 92 months in Federal prison for participating in a pattern of racketeering as well as inflicting serious bodily injury upon one victim. At that time, Ms. Lam announced:

With the president, sergeant at arms, secretary, treasurer,

and six other members of the Hell's Angels convicted of

racketeering charges and facing long prison sentences, the

San Diego chapter of the Hell's Angels has been effectively

shut down for the foreseeable future.

If that isn't enough, in September of 2006, Jose Ernesto Beltran- Quinonez, a Mexican national, pled guilty to making false statements about weapons of mass destruction. Mr. Quinonez was sentenced to 3 years in Federal prison for making up a story about Chinese terrorists sneaking into the United States with a nuclear warhead. The hoax prompted a massive investigation, Federal warnings, discussions at one of President Bush's security briefings, and a nationwide hunt for the group of Chinese supposedly plotting the attack.

In December 2006 Mel Kay, of Golden State Fence Company, and Michael McLaughlin pled guilty to felony charges of hiring illegal immigrants and agreed to pay fines of $200,000 and $100,000 respectively. The company, which built much of the fence near Otay Mesa, agreed separately to pay $5 million on a misdemeanor count, one of the largest fines ever imposed on a company for an immigration violation.

Was Carol Lam praised for this work? No, she was sent packing without an explanation. Those were not her only cases.

She gained a national reputation for her work on public corruption cases. I think it is important to note that public corruption is the FBI's second highest priority after terrorism-related investigations. Now, I didn't know this, but the Judiciary Committee had an oversight hearing of the FBI on December 6, 2006, where the Director, Bob Mueller, came before us and he mentioned what their priorities were, and he said: Terrorism first, and then public corruption second, and crime was way down on the list.

As a matter of fact, I found it rather startling, and I questioned him about that. He said, with some emphasis, those are our priorities, and we believe if we don't do public corruption, nobody else will. So the FBI has as its second highest priority public corruption. The FBI is going to be out there putting together cases. Who prosecutes these cases? U.S. attorneys. The FBI's second highest priority, and Carol Lam rose to this challenge.

In March of 2004, her office convicted Steven Mark Lash, the former chief financial officer of FPA Medical Management, for his role in defrauding shareholders and lenders of FPA. The collapse of the company left more than 1,600 doctors being owed more than $60 million and patients reporting they were unable to obtain medical care because this company had ceased paying providers.

In January of 2005, Mark Anthony Kolowich, owner of World Express Rx, pled guilty to conspiracy to sell counterfeit pharmaceuticals, conspiracy to commit mail fraud and smuggle pharmaceuticals, and conspiracy to launder money. Mr. Kolowich had run an Internet pharmacy Web site where customers could order prescription drugs without a valid prescription. The judge called him the kingpin and architect of an illicit pharmaceutical ring that recruited many others to smuggle drugs across the United States-Mexico border at San Ysidro.

Another case. In July 2005, Mrs. Lam brought a case against San Diego councilman Ralph Inzunza and Las Vegas lobbyist Lance Malone. They were convicted on multiple counts of extortion, wire fraud conspiracy and wire fraud and were accused of trading money for efforts to repeal a law.

Then, in her most well-known case, in November of 2005, Ms. Lam secured a guilty plea from former Representative Randy ``Duke'' Cunningham for taking more than $2 million in bribes in a criminal conspiracy case involving at least three defense contractors after he accepted cash and gifts and then tried to influence the Defense Department on behalf of donors. He also pled guilty to a separate tax evasion violation for failing to disclose income in 2004.

Now, here is where it gets interesting. Finally, 2 days before she left office, that would be around February 13, Carol Lam announced indictments of Kyle ``Dusty'' Foggo, a former top officer of the Central Intelligence

Agency, and Brent Wilkes, a defense contractor accused of bribing Duke Cunningham and the prime benefactor of secret CIA contracts. It is this latest incident, involving the ongoing investigations stemming from the Cunningham case, that has raised the most significant concerns about Carol Lam's removal.

When I first came to the floor in January, I mentioned rumors were circulating around California that Carol Lam was pushed out because of her efforts in the Duke Cunningham case and subsequent investigations. I have tried to be very careful about talking about these allegations because they are so serious and because, at the time, they were based on mere speculation.

Despite recent materials coming to light, I want to continue to be very careful in talking about these allegations. At the same time, I must say that today there are even more questions to be answered regarding what role public corruption cases played in the administration's decisions about which U.S. attorneys to fire. We have now learned that six of the eight fired U.S. attorneys were involved in public corruption cases.

The Washington Post noted this, I think, very well, as I will point out here on this chart.

David Iglesias, New Mexico--oversaw probes of State Democrats and alleges two Republican lawmakers pressured him about the case. He was respected by the Judiciary agencies and staff, complied with Department priorities.

Daniel Bogden, Nevada--overall evaluation was very positive. Notable cases, opened a probe related to Nevada Governor Jim Gibbons, former Member of Congress.

Paul Charlton, Arizona--opened preliminary probes of Representatives Jim Kolbe and Rick Renzi before November election. Well respected, established goals that were appropriate to meet the priorities of the Department.

These are quotes from the official performance reports. I am not making them up, and I am not taking them from any individual. These are 27 people who go into an office and evaluate the performance of a U.S. attorney. What did they say about notable cases?

Bud Cummins, Eastern Arkansas--Cummins was very competent, highly regarded.

That was his performance review. He conducted a probe related to Missouri Governor Roy Blunt, which he later closed without charges.

There is Carol Lam, Southern California, whom I have already mentioned.

John McKay, Western Washington--here is the job performance: effective, well regarded, capable leader, established strategic goals that were appropriate. Here is the case: Declined to intervene in disputed gubernatorial election, angry GOP.

Those are the six. In Carol Lam's case, these allegations have become even more troubling.

Following the conviction of Duke Cunningham, in April 2006, Federal prosecutors in Carol Lam's office began investigating whether Brent Wilkes, a defense contractor, and Kyle ``Dusty'' Foggo, the third highest ranking official at the CIA, and others were involved in bribery and corruption. Throughout the first week of May 2006, information began to surface in the press regarding this ongoing investigation. Then, on May 10, 2006, Carol Lam quietly sent an urgent notice to officials at Main Justice to inform the Deputy Attorney General and the Attorney General she was about to execute search warrants on May 12--that is 2 days later--to search the home and CIA office of Dusty Foggo. The very next day, after she sent this internal notice, Department of Justice staff sent an e-mail to the White House that said this:

Please call me to discuss the following: . . . The real

problem we have right now with Carol Lam that leads me to

conclude that we should have somebody ready to be nominated

on 11/18, the day her 4-year term expires.

The real problem we have right now with Carol Lam. And that is the day after she notified Main Justice that she was executing two search warrants.

Mr. President, I ask unanimous consent that the complete e-mail be printed in the Record.

Mr. President, there could be a straightforward explanation for this e-mail that has nothing to do with public corruption cases Carol Lam was pursuing. However, the timing looks really suspicious and it raises serious questions, questions that need to be answered. Because if any U.S. attorney were removed because of a public corruption investigation or prosecution, this could very well comprise obstruction of justice.

I believe that irrespective of the intent behind the decision to fire Carol Lam and the other U.S. attorneys working on public corruption cases, such a removal sends a message to all other Federal prosecutors, whether intended or not, that creates a chilling effect. Because of this, there should have been very careful consideration given to what steps should have been taken to ensure it was clear there was good reason to remove the prosecutor, that the office itself had a comprehensive plan in place to ensure no cases or investigations would be harmed or slowed in any way and that ongoing public corruption cases had absolutely nothing to do with the removal of the U.S. attorney.

However, in the case of Carol Lam and in the case of five other U.S. attorneys, the administration failed to meet even these bare minimum standards. I strongly believe that removal of a United States attorney who is involved in an ongoing public corruption case should occur only--only if there is a very good reason, and not simply ``we could do better.''

Because of the public corruption cases and allegations that individuals were removed to put in politically connected young lawyers, another issue that must be examined is the appearance of politics impacting how U.S. attorneys are treated and what that means for the prosecution of justice.

As was reported in the McClatchy newspapers, former Federal prosecutors and defense lawyers have said:

Allegations of political interference could undermine the

reputation of U.S. attorneys as impartial enforcers of the

law.

And, yes, I really agree with that.

One former Federal prosecutor said:

One of the things the Department has stood for was being

apolitical. Sure, politics does get involved in the

appointment process, but this is just nuts.

He is right. Yes, appointees are selected and nominated by the party in power. But once an individual U.S. attorney takes that oath of office, he or she must be independent, objective, and must be free to pursue justice wherever the facts lead.

Bruce Fein, the former Associate Deputy Attorney General for the

Reagan administration, said in an interview last week:

[W]e expect the rule of law to be administered

evenhandedly. That's what ties our country together and gives

legitimacy to decisions by the court and to the government

itself. When it's obvious that the prosecution function is

being manipulated for political purposes, that undermines the

entire rule of law.

In defending its actions, administration officials and others have tried to argue that both Presidents Reagan and Clinton fired all 93 U.S. attorneys when they came into office, and that is no different than what occurred in December. Right?

Wrong. The implication of this argument has been that it is not unheard of to fire U.S. attorneys in this manner, and that, at some level, it is commonplace. Right?

Wrong, it is not commonplace. In fact, the Department of Justice and the White House knew that this was not commonplace and that comparing its actions to Reagan and Clinton was an inaccurate analogy. A memo, written by Kyl Sampson on January 1, 2006, to the Counsel to the President, clearly stated:

During the Reagan and Clinton Administrations, President

Reagan and Clinton did not seek to remove and replace U.S.

Attorneys they had appointed, whose four-year terms had

expired, but instead permitted such U.S. Attorneys to serve

indefinitely under the holdover provision.

That is a memo from the Attorney General's Chief of Staff, Kyle Sampson, again, on January 1, 2006.

So they knew. They knew that just to say President Reagan and President Clinton each formed a new team when they became President couldn't be used as precedent because it was not an accurate precedent.

Despite this, the administration and its defenders have continued to argue that firing U.S. attorneys was ``entirely appropriate'' and that it was justified because executive branch appointees ``serve at the pleasure of the President.'' In fact, this had never been done before. In fact, as far as we have been able to find out so far, and they are still researching it--but the Congressional Research Service has told us that in the past 25 years, only two U.S. attorneys who served less than a full term have been fired.

Interestingly, this talking point about ``serving at the pleasure of the President'' is repeated throughout the documents that have been released as to what the administration should say when asked about the firing of U.S. attorneys. Specifically, it was listed in several versions of a memo that outlined the steps to be taken to execute the plan. This, again, is a memo from the Chief of Staff to the Attorney General:

``Step 3: Prepare to withstand political upheaval.'' We

should expect that there will be ``direct and indirect

appeals of the Administration's determination to seek these

resignations. . . . Recipients of such `appeals' must respond

identically . . . U.S. attorneys serve at the pleasure of the

President.''

So those to whom somebody appeals must reinforce this argument: U.S. attorneys serve at the pleasure of the President. That little statement is meant to cover, I am sorry to say, a multitude of sins.

Of course, in the most literal sense, it is true: executive branch employees serve at the pleasure of the President. However, blind adherence and single-minded pursuit of this principle ignores that it is equally true that our Nation's prosecutors must be independent, they must be objective, and they must pursue justice wherever the facts lead.

And it ignores that our country is based on the principle of checks and balances. Of course, in this instance this means that we must return Senate confirmation as a certainty to the law, and this is exactly what we do in S. 214--we simply return the law to what it was before that unknown addition was added to the PATRIOT Act reauthorization without the knowledge of Senators.

Since January when this issue was first raised, the Department of Justice has repeatedly stated publicly that it did not intend to avoid Senate confirmation. For example, before the Judiciary Committee on January 18, 2007, the Attorney General testified that DOJ was ``fully committed to try and find presidentially appointed, Senate confirmed U.S. Attorneys for every position.''

However, in e-mails and memos written by his staff, a strategy was outlined that does not show a commitment to Senate confirmation. For example, on September 13, 2006, 3 months before the firing call on December 7, the Attorney General's Chief of Staff sent an e-mail to Monica Goodling, liaison between the Department of Justice and the White House, suggesting that the Department use the new authority slipped into the PATRIOT Act reauthorization to facilitate firing U.S. attorneys and replacing them with new ones. The e-mail said:

I strongly recommend that as a matter of administration, we

utilize the new statutory provisions that authorize the AG to

make [U.S. attorney] appointments.

Then, the inference is, by avoiding Senate confirmation, the e-mail goes on:

[W]e can give far less deference to home State Senators and

thereby get (1) our preferred person appointed and (2) do it

far faster and more efficiently at less political costs to

the White House.

This is only one example of discussions among White House and DOJ officials about the benefits of avoiding the Senate, especially when the home State Senators are Democrats.

In another example there is an e-mail chain from December 2006 between the Department of Justice and the White House which discusses how to deal with the opposition of Arkansas' Democratic Senators to the interim appointment of Tim Griffin. I quote:

``I think we should gum this to death.'' . . . The longer

we can forestall [the Senators saying they will never support

Griffin] the better. We should run out the clock . . . ``all

of this should be done in `good faith,' of course.''

The e-mail went on to say:

Our guy is in there so the status quo is good for us . . .

pledge to desire a Senate-confirmed U.S. Attorney; and

otherwise hunker down.

That is an e-mail that deserves a lot of questions. In addition, in a November 15, 2006, memo regarding the plan to replace U.S. attorneys, ``Step 2: Senator calls,'' outlines that for my State of California and for Michigan and Washington, the strategy was to have Bill Kelly from the White House call ``the home State `Bush political lead,' '' since there was no Republican home State Senators.

So while the Justice Department has said: We consulted with home State Senators--that is true only if they were Republican. If they were Democratic home State Senators they were not, in fact, called.

I believe all of this adds up to a very complex and very serious situation that now has even more questions that need to be asked and answered under oath. For example, we need to know who from the White House was involved in these decisions? Was the plan orchestrated by the White House? Who made these determinations about who to fire and who was involved in the loyalty evaluation? What other U.S. attorneys were targeted for dismissal?

We know there were several but their names have been redacted from the documents we have received. We need to know who are they, why were they on the list, and why did they come off the list?

What were the real reasons used to determine who would be fired, since the evaluations don't line up with the EARS reports? What role, if any, did open public corruption cases play in determining who would be fired? What was the Attorney General's role in the process? What did he know and when did he know it? How can he say he didn't know what was going on with the firing of the U.S. attorneys, even though the White House did, and even though there are e-mails showing that he was consulted?

Was the change to the law in March of 2006 done in order to facilitate the wholesale replacement of all or a large number of U.S. attorneys without Senate confirmation? We know that somebody suggested all 93 U.S. attorneys should be replaced, at one point. My question is, was this done to facilitate that?

These are just some of the questions I hope our committee will delve into as the investigation continues.

Finally, in an e-mail that discussed avoiding the Senate confirmation process, the Attorney General's Chief of Staff wrote:

There is some risk that we'll lose the authority [to

appoint interim U.S. attorneys indefinitely], but if we don't

ever exercise it then what's the point of having it?

Think about that: There is some risk that we will lose the authority to appoint U.S. attorneys indefinitely, but if we don't ever exercise it, then what is the point of having it?

I believe the time has come for the administration to lose that authority. All these unanswered questions and allegations have demonstrated at the very least one real thing: the law must be returned to what it was prior to the reauthorization of the PATRIOT Act, and the bipartisan bill before the Senate would do just that. Through negotiations with Senator Specter we are now considering legislation that would give the Attorney General authority to appoint an interim U.S. attorney but only for 120 days. 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.

Given all we have learned in the past few months, I believe this is the least we can do to restore the public's faith in an independent system of justice. This bill will also help prevent any future abuse or appearance of politicization of U.S. attorney positions.

The legislation also makes it clear that the 120-day limitation applies to all the interim U.S. attorneys who are currently in place, including those who are the result of the Department's actions in December. These changes are in line with the way the law used to be and would simply be restoring the proper checks and balances that are needed in our system of government.

I urge my colleagues to oppose all amendments and pass a clean bill.

I have noted the distinguished ranking member of the committee is on the Senate floor. Before I yield, I ask unanimous consent that the committee amendments be considered as original text for the purpose of further amendments.

I yield the floor.

Mr. President, I ask unanimous consent that the use of calculators be permitted on the floor of the Senate during consideration of the budget resolution.

Mr. President, I see the Senator from California on the floor, and I am about to yield to her. Could I ask, Mr. President, how much time is available to the Senator from Vermont or his designees?

Mr. President, the Senator from Vermont has 8 minutes; the Senator from California has 5?

Thank you, Mr. President.

I yield the floor.

Mr. President, I thank the Senator from California for her statement and her leadership. She has been so forthright in her comments right from the beginning of this scandal, and I appreciate it. I will have more to say about her efforts at the end of my statement.

In a few minutes, the Senate will have an opportunity to begin restoring accountability and checks and balances to what is our Government, the Government that belongs to all Americans. We should pass the Preserving U.S. Attorneys Independence Act. We have to close a loophole that has been exploited by the Department of Justice and the White House--a loophole that led to the mass firings of U.S. attorneys.

When we roll back this excessive authority given the Attorney General by the PATRIOT Act reauthorization, we can restore--or at least take a step toward restoring--the independence of our Federal law enforcement system. We will be acting to reverse one more incident of overstepping by an earlier ``rubberstamp'' Congress, which was all too often willing to dance to the tune of a power-hungry White House.

The Attorney General--and I will agree with the Attorney General on this--he is right that mistakes were made. Mistakes were made, all right. It was a mistake to conduct the mass firings to send the message to our U.S. attorneys that they had better act like ``loyal Bushies''-- their words, the Administration's words--rather than act as objective law enforcement officers. Mistakes were made, absolutely.

It was a mistake to malign the reputations of these officials by contending that the firings were prompted by their badly performing their law enforcement responsibilities.

It was a mistake to mislead the Senate Judiciary Committee in hearings and Senators during phone calls and in meetings about the firings.

It was a mistake to give the Attorney General the unlimited authority to fill these critical posts with his selections or the selections of the White

House without the advice and consent of the U.S. Senate.

But most of all, it was a mistake to inject crassly partisan objectives into the selection, evaluation, firing, and replacement of the top Federal law enforcement officers in our country.

I still have no sense that the administration or the Attorney General understand the seriousness of this matter. The apparent effort to corrupt the Federal law enforcement function for partisan political purposes has cast a cloud over all U.S. attorneys. Now every U.S. attorney is under a cloud. People are asking about those who were retained as ``loyal Bushies.'' People are wondering what prosecutorial judgments were affected. These mass firings have served to undermine the confidence of the American people in the Department of Justice and the local U.S. attorneys.

In the same way that any employer has the power to hire, we understand that people cannot be fired because they are Catholic or because of their race or because they are a whistleblower. The power of employment is not without limit. It can be abused. When it is abused in connection with political influence over Federal law enforcement the American people and their representatives in Congress have a right to be concerned. We need to get to the bottom of this situation. We need the facts, not more spin, not another concocted cover story.

The U.S. Department of Justice must be above politics. The Attorney General of the United States has to ensure the independence of Federal law enforcement from political influence. The Department of Justice should serve the American people by making sure the law is enforced without fear or favor. It should not be a political arm of the White House.

The Attorney General is not the President's lawyer. The President has a lawyer. The Attorney General is the Attorney General for the people of the United States of America--all of us--Republicans, Democrats and Independents.

The advice and consent check on the appointment power is a critical function of the Senate. That is what this administration insisted be eliminated by the provision it had inserted in the reauthorization of the PATRIOT Act. That measure struck the time limit on the ability of the Attorney General to name a so-called interim U.S. attorney. And that is what this bill, the Preserving United States Attorney Independence Act of 2007, is intended to restore. It is vital that those holding these critical positions be free from any inappropriate influence.

We are finding out more and more abuses by this administration. We learned for the first time earlier this month in testimony by a Congressional Research Service attorney before the House Judiciary Committee about another loophole this administration has tried to create and exploit. In 2003, the Department's Office of Legal Counsel issued a secret legal opinion to try to create an end run around the Senate's role. This administration is the first I am aware that is employing the Vacancies Act in addition to the interim U.S. attorney appointment authority sequentially. The horror that Senator Kyl speaks about is one that this administration created and has apparently been employing. That is not what Congress intended.

With the passage of S. 214 today we should put an end to that untoward practice, too. As one of the authors of S. 214 and chairman of the Judiciary Committee, I say it is not our intent to allow such an abuse by having the Vacancies Act provisions and those of S. 214 used in sequence. We do not intend for the Attorney General to use such a misguided approach and seek to install a choice for 330 days without the advice and consent of the Senate. Nor do we intend for the Attorney General to make Senator Kyl's other suggestion a reality by seeking to use the 120-day appointment authority more than once. It is not designed or intended to be used repeatedly for the same vacancy. These double dipping approaches run afoul of congressional intent, the law and our bill. Our bill should put a stop to that, too. Instead, the President should fulfill his responsibilities, work with home State Senators and nominate qualified people to serve as U.S. attorneys so that they can be considered by the Senate and confirmed. If he does not the district court will be restored the stopgap authority they previously had.

I was pleased that Senator Feinstein worked so hard with Senator Specter to craft the consensus measure we consider today to reinstate vital limits on the Attorney General's authority and bring back incentives for the administration to fill vacancies with Senate- confirmed nominees. We reported out this measure with bipartisan support 13-6 after debating and voting down several amendments, including amendments similar to those offered today by Senators Kyl and Sessions. We should again vote down these amendments and pass the bipartisan bill without delay.

Senator Sessions' amendment would attach certain conditions to a district court's authority to appoint an interim U.S. attorney after 120 days, but none to the Attorney General's interim appointment authority. Our bill is meant to roll back a change in law that allowed an abuse of power by the administration and the Department of Justice. There is no record of problems with the appointment of interim appointments by the district court. In fact, for almost a hundred years until the law was changed in 1986 during the Reagan administration, district courts were the sole means of appointing interim U.S. attorneys. There are many criteria that we want U.S. attorneys to possess--chief among them the ability to enforce the laws independently without fear or favor. But both the prerogatives of the administration in putting in place the people it wants and the home State Senators in ensuring fairness and independence in their States are protected when the President nominates and the Senate considers and confirms U.S. attorneys.

Senator Kyl's amendment provides unjustified limitations on the Senate's role in confirming U.S. attorneys that could short-circuit the Senate's ability to undertake a thorough consideration of a nominee's qualifications and wholly disregards the role of the home State Senators.

It is true that this President has been slow in nominating U.S. attorneys. There are currently 22 vacancies and only three nominees. Building incentives for this President to fulfill his responsibilities and work with home State Senators would be a good thing. That is not what Senator Kyl's amendment does. Instead, in the guise of setting a time limit on the Senate, what it actually does is override the traditional deference paid to home State Senators and the Judiciary Committee itself. In fact, no time limit is needed to require the committee or the Senate to act on qualified nominees.

During this President's term, U.S. attorneys have been confirmed quickly, taking an average of 68 days from nomination to confirmation. Only three people nominated to be U.S. attorneys have not been confirmed and two of those withdrawn by the President. In fact, when I first chaired the Judiciary Committee during President Bush's first term, we confirmed 84 of President Bush's U.S. attorney nominations in a little more than a year.

Some critics of the district court's role in filling vacancies beyond 120 days claim it to be inconsistent with sound separation of powers principles. That is contrary to the Constitution, our history, our practices, and recent court rulings. In 2000, in United States v. Hilario, the First Circuit upheld the constitutionality of the prior law on interim appointments, including the district court's role. In fact, the practice of judicial officers appointing officers of the court is well established in our history and from the earliest days.

Morrison v. Olson should have laid to rest the so-called separation of powers concern now being trumpeted to justify these political maneuvers within the Justice Department. Certainly no Republicans now defending this administration voiced concern when a panel of judges appointed Ken Starr to spend millions in taxpayer dollars going after President Clinton as a court-appointed prosecutor.

During committee consideration we heard from some who had not read what the Constitution says. The Constitution provides congressional power to direct the appointment power. In article II, the part of the Constitution that this administration reads as if it says that all power resides with the President, the President's appointment power is limited by the power of Congress. Indeed, between its provisions

calling for appointments with the advice and consent of the Senate and for the President's limited power to make recess appointments, the Constitution provides:

But the Congress may by law vest the appointment of such

inferior officers, as they think proper, in the President

alone, in the courts of law, or in the Heads of Departments.

Just last week, the Eastern District of Arkansas joined at least two other courts addressing the interim appointment of U.S. attorneys, the First Circuit in Hilario, and the Ninth Circuit in United States v. Gantt, in concluding that U.S attorneys are ``inferior officers.'' Thus, the Constitution contemplates exactly what our statutes and practices had previously provided and what our bill will restore. Congress is well within its authority when it vests in the courts a share of the appointment power for those who appear before them.

One of the finest Attorneys General of the United States ever to serve was Robert H. Jackson. He also served as one of our most admired Justices on the U.S. Supreme Court. He was a principal prosecutor at the International Military Tribunal for German war criminals in Nuremberg after World War II.

The day after I was born, on April 1, 1940, as a new Attorney General, he spoke to the U.S. attorneys from across the country. They were assembled in the Great Hall at the Department of Justice in Washington. He told them about the responsibilities of being a Federal prosecutor. I think it is appropriate today to recall his guidance. His words serve to show the Senate and the American people how wrong this Administration's practices are and how far off the mark.

This is what then-Attorney General Jackson said and they are words that serve today. He said:

The prosecutor has more control over life, liberty, and

reputation than any other person in America. His discretion

is tremendous. While the prosecutor at his best is one of the

most beneficent forces in our society, when he acts from

malice or other base motives, he is one of the worst.

Because of this immense power to strike at citizens, not

with mere individual strength, but with all of the force of

government itself, the post of Federal District Attorney from

the very beginning has been safeguarded by presidential

appointment, requiring confirmation of the Senate of the

United States.

Your responsibility in your several districts for law

enforcement and for its methods cannot be wholly surrendered

to Washington.

Robert H. Jackson continued:

If the prosecutor is obliged to choose his cases, it

follows that he can choose his defendants. Therein is the

most dangerous power of the prosecutor: That he will pick

people that he thinks he should get, rather than pick cases

that need to be prosecuted.

It is in this realm in which the prosecutor picks some

person whom he dislikes or desires to embarrass, or selects

some group of unpopular persons and then looks for an

offense, that the greatest danger of abuse of prosecuting

power lies. It is here that law enforcement becomes personal,

and the real crime becomes that of being unpopular with the

predominant or governing group, being attached to the wrong

political views, or being personally obnoxious to or in the

way of the prosecutor himself.

In times of fear or hysteria political, racial, religious,

social, and economic groups, often for the best of motives,

cry for the scalps of individuals or groups because they do

not like their views. Those who are in office or apt to

regard as ``subversive'' the activities of any of those who

would bring about a change of administration.

Mr. President, I ask unanimous consent that a copy of Attorney General Jackson's full statement be printed in the Record at the conclusion of my remarks.

Mr. President, I have said many times on this floor that one of the greatest opportunities I have ever had in my public life was to serve for 8 years as a prosecutor. Prosecutors have to be independent. Prosecutors have to prosecute without fear of favor. Prosecutors can never not prosecute someone because they are a Republican or Democrat; they have to do it because they have to uphold the law.

Let us restore the situation where our Federal prosecutors, whether we have a Democratic President or a Republican President, serve the law and not a political purpose. That is what prosecutors have to do. Many of us in this Chamber have served as prosecutors and know that is what we meant when we took our oath of office. Let's not have a system that at the outset subverts that oath of office.

I wish to commend Senator Feinstein for leading this effort and Senator Specter, the ranking Republican on our committee, for joining her. We have all cosponsored the substitute to restore the statutory checks that existed. I commend the many Senators who contributed to this debate, including the majority leader, Senator Kennedy, Senator Durbin, both Senators from Arkansas, Senator Whitehouse, Senator McCaskill, Senator Schumer, Senator Murray, Senator Cardin, and Senator Klobuchar.

Many speak from their own experiences as former prosecutors.

Let's pass this bill without amendments. We have a piece of legislation to protect the integrity of prosecutors and law enforcement. Let's pass it without amendment, pass it as it is, and strike a blow for the integrity of our Federal prosecutors and strike a blow for law enforcement. Because if you politicize a prosecutor, you politicize everybody in the whole chain of law enforcement. We should never do that. Let's pass this bill and restore integrity to Federal law enforcement.

Mr. President, I yield the floor.

Exhibit 1

The Federal Prosecutor

(By Robert H. Jackson, Attorney General of the United States, April 1,

1940)

It would probably be within the range of that exaggeration

permitted in Washington to say that assembled in this room is

one of the most powerful peace-time forces known to our

country. The prosecutor has more control over life, liberty,

and reputation than any other person in America. His

discretion is tremendous. He can have citizens investigated

and, if he is that kind of person, he can have this done to

the tune of public statements and veiled or unveiled

intimations. Or the prosecutor may choose a more subtle

course and simply have a citizen's friends interviewed. The

prosecutor can order arrests, present cases to the grand jury

in secret session, and on the basis of his one-sided

presentation of the facts, can cause the citizen to be

indicted and held for trial. He may dismiss the case before

trial, in which case the defense never has a chance to be

heard. Or he may go on with a public trial. If he obtains a

conviction, the prosecutor can still make recommendations as

to sentence, as to whether the prisoner should get probation

or a suspended sentence, and after he is put away, as to

whether he is a fit subject for parole. While the prosecutor

at his best is one of the most beneficent forces in our

society, when he acts from malice or other base motives, he

is one of the worst.

These powers have been granted to our law enforcement

agencies because it seems necessary that such a power to

prosecute be lodged somewhere. This authority has been

granted by people who really wanted the right thing done--

wanted crime eliminated--but also wanted the best in our

American traditions preserved.

Because of this immense power to strike at citizens, not

with mere individual strength, but with all the force of

government itself, the post of Federal District Attorney from

the very beginning has been safeguarded by presidential

appointment, requiring confirmation of the Senate of the

United States. You are thus required to win an expression of

confidence in your character by both the legislative and the

executive branches of the government before assuming the

responsibilities of a federal prosecutor.

Your responsibility in your several districts for law

enforcement and for its methods cannot be wholly surrendered

to Washington, and ought not to be assumed by a centralized

Department of Justice. It is an unusual and rare instance

in which the local District Attorney should be superseded

in the handling of litigation, except where he requests

help of Washington. It is also clear that with his

knowledge of local sentiment and opinion, his contact with

and intimate knowledge of the views of the court, and his

acquaintance with the feelings of the group from which

jurors are drawn, it is an unusual case in which his

judgment should be overruled.

Experience, however, has demonstrated that some measure of

centralized control is necessary. In the absence of it

different district attorneys were striving for different

interpretations or applications of an Act, or were pursuing

different conceptions of policy. Also, to put it mildly,

there were differences in the degree of diligence and zeal in

different districts. To promote uniformity of policy and

action, to establish some standards of performance, and to

make available specialized help, some degree of centralized

administration was found necessary.

Our problem, of course, is to balance these opposing

considerations. I desire to avoid any lessening of the

prestige and influence of the district attorneys in their

districts. At the same time we must proceed in all districts

with that uniformity of policy which is necessary to the

prestige of federal law.

Nothing better can come out of this meeting of law

enforcement officers than a rededication to the spirit of

fair play and decency that should animate the federal

prosecutor. Your positions are of such independence and

importance that while you are being diligent, strict, and

vigorous in law enforcement you can also afford to be just.

Although the government technically loses its case, it has

really won if justice has been done. The lawyer in public

office is justified in seeking to leave behind him a good

record. But he must remember that his most alert and severe,

but just, judges will be the members of his own profession,

and that lawyers rest their good opinion of each other not

merely on results accomplished but on the quality of the

performance. Reputation has been called ``the shadow cast by

one's daily life.'' Any prosecutor who risks his day-to-day

professional name for fair dealing to build up statistics of

success has a perverted sense of practical values, as well as

defects of character. Whether one seeks promotion to a

judgeship, as many prosecutors rightly do, or whether he

returns to private practice, he can have no better asset than

to have his profession recognize that his attitude toward

those who feel his power has been dispassionate, reasonable

and just.

The federal prosecutor has now been prohibited from

engaging in political activities. I am convinced that a good-

faith acceptance of the spirit and letter of that doctrine

will relieve many district attorneys from the embarrassment

of what have heretofore been regarded as legitimate

expectations of political service. There can also be no doubt

that to be closely identified with the intrigue, the money

raising, and the machinery of a particular party or faction

may present a prosecuting officer with embarrassing

alignments and associations. I think the Hatch Act should be

utilized by federal prosecutors as a protection against

demands on their time and their prestige to participate in

the operation of the machinery of practical politics.

There is a most important reason why the prosecutor should

have, as nearly as possible, a detached and impartial view of

all groups in his community. Law enforcement is not

automatic. It isn't blind. One of the greatest difficulties

of the position of prosecutor is that he must pick his cases,

because no prosecutor can even investigate all of the cases

in which he receives complaints. If the Department of Justice

were to make even a pretense of reaching every probable

violation of federal law, ten times its present staff would

be inadequate. We know that no local police force can

strictly enforce the traffic laws, or it would arrest half

the driving population on any given morning. What every

prosecutor is practically required to do it to select the

cases for prosecution and to select those in which the

offense is the most flagrant, the public harm the greatest,

and the proof the most certain.

If the prosecutor is obliged to choose his cases, it

follows that he can choose his defendants. Therein is the

most dangerous power of the prosecutor: that he will pick

people that he thinks he should get, rather than pick cases

that need to be prosecuted. With the law books filled with a

great assortment of crimes, a prosecutor stands a fair chance

of finding at least a technical violation of some act on the

part of almost anyone. In such a case, it is not a question

of discovering the commission of a crime and then looking for

the man who has committed it, it is a question of picking the

man and then searching the law books, or putting

investigators to work, to pin some offense on him. It is in

this realm--in which the prosecutor picks some person whom he

dislikes or desires to embarrass, or selects some group of

unpopular persons and then looks for an offense, that the

greatest danger of abuse of prosecuting power lies. It is

here that law enforcement becomes personal, and the real

crime becomes that of being unpopular with the predominant or

governing group, being attached to the wrong political views,

or being personally obnoxious to or in the way of the

prosecutor himself.

In times of fear or hysteria political, racial, religious,

social, and economic groups, often from the best of motives,

cry for the scalps of individuals or groups because they do

not like their views. Particularly do we need to be

dispassionate and courageous in those cases which deal with

so-called ``subversive activities.'' They are dangerous to

civil liberty because the prosecutor has no definite

standards to determine what constitutes a ``subversive

activity,'' such as we have for murder or larceny. Activities

which seem benevolent and helpful to wage earners, persons on

relief, or those who are disadvantaged in the struggle for

existence may be regarded as ``subversive'' by those whose

property interests might be burdened or affected thereby.

Those who are in office are apt to regard as ``subversive''

the activities of any of those who would bring about a change

of administration. Some of our soundest constitutional

doctrines were once punished as subversive. We must not

forget that it was not so long ago that both the term

``Republican'' and the term ``Democrat'' were epithets with

sinister meaning to denote persons of radical tendencies that

were ``subversive'' of the order of things then dominant.

In the enforcement of laws which protect our national

integrity and existence, we should prosecute any and every

act of violation, but only overt acts, not the expression of

opinion, or activities such as the holding of meetings,

petitioning of Congress, or dissemination of news or

opinions. Only by extreme care can we protect the spirit as

well as the letter of our civil liberties, and to do so is a

responsibility of the federal prosecutor.

Another delicate task is to distinguish between the federal

and the local in law enforcement activities. We must bear in

mind that we are concerned only with the prosecution of acts

which the Congress has made federal offenses. Those acts we

should prosecute regardless of local sentiment, regardless of

whether it exposes lax local enforcement, regardless of

whether it makes or breaks local politicians.

But outside of federal law each locality has the right

under our system of government to fix its own standards of

law enforcement and of morals. And the moral climate of the

United States is as varied as its physical climate. For

example, some states legalize and permit gambling, some

states prohibit it legislatively and protect it

administratively, and some try to prohibit it entirely.

The same variation of attitudes towards other law-

enforcement problems exists. The federal government could not

enforce one kind of law in one place and another kind

elsewhere. It could hardly adopt strict standards for loose

states or loose standards for strict states without doing

violence to local sentiment. In spite of the temptation to

divert our power to local conditions where they have become

offensive to our sense of decency, the only long-term policy

that will save federal justice from being discredited by

entanglements with local politics is that it confine itself

to strict and impartial enforcement of federal law, letting

the chips fall in the community where they may. Just as there

should be no permitting of local considerations to stop

federal enforcement, so there should be no striving to

enlarge our power over local affairs and no use of federal

prosecutions to exert an indirect influence that would be

unlawful if exerted directly.

The qualities of a good prosecutor are as elusive and as

impossible to define as those which mark a gentleman. And

those who need to be told would not understand it anyway. A

sensitiveness to fair play and sportsmanship is perhaps the

best protection against the abuse of power, and the citizen's

safety lies in the prosecutor who tempers zeal with human

kindness, who seeks truth and not victims, who serves the law

and not factional purposes, and who approaches his task with

humility.

I suggest the absence of a quorum.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I ask unanimous consent that between the votes there be 2 minutes equally divided in the usual fashion.

Mr. President, I move to reconsider the vote.

Mr. President, I ask unanimous consent that the next two votes be 10 minutes in duration.

Mr. President, we are trying to put the law back to the way it was before this little amendment was slipped into the PATRIOT Act. We should oppose the amendment of the Senator from Alabama. It would not put it back the way it was. Actually, under this amendment, the Senator from Alabama could not have been appointed U.S. attorney, and former Attorney General Thornburg and former Deputy Attorney General Larry Thompson could not have been.

The President should move quickly to appoint the U.S. attorney if there is a vacancy, but in the meantime, the judges are in the best position to appoint somebody. I hope a district court never has to make an appointment. But let's assume you have a case where there is widespread corruption. The judge has to be able to put in someone independent. It worked well for 100 years. It was changed by something slipped into the PATRIOT Act. Let's go back to the way we were, Mr. President.

I oppose this amendment and ask for the yeas and nays.

Mr. President, I ask for the yeas and nays.

Mr. President, I believe there are 2 minutes equally divided. I simply ask all Senators, send a very strong signal. We want to correct the mistake made in the PATRIOT Act, a mistake that has been utilized the wrong way. We want to go back to the appointment of U.S. attorneys the way they should be appointed. We want to have the advice and consent of the Senate. I urge all Senators to vote for the legislation Senator Feinstein and I and Senator Specter and others have introduced.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I am going to speak on two timely issues. I would like to first speak on the issue of S. 214, the bill pending before the Senate.

I would like to ask my colleagues in the Senate who followed this debate over the firing of eight U.S. attorneys to reflect a little bit about history. It was over a century ago that the U.S. Department of Justice undertook plans to fire certain Federal prosecutors in the U.S. Attorney's Office in Alabama for political reasons. It was August 9, 1904, when Republican President Theodore Roosevelt wrote a letter to his Attorney General, William H. Moody. In this letter, President Theodore Roosevelt opposed the political firing of Federal prosecutors. This is what he said:

Of all of the officers of the Government, those of the

Department of Justice should be kept most free from any

suspicion of improper action on partisan or factional grounds

. . . so that there will be gradually a growth, even though a

slow growth, in the knowledge that the Federal courts and the

representatives of the Federal Department of Justice insist

on meting out even-handed justice to all.

Those words were spoken over 100 years ago. They ring true today. Our democracy is based on the rule of law. It is based on meting out evenhanded justice, as President Theodore Roosevelt said.

The forced firing of eight U.S. attorneys, nearly all of whom had been judged qualified and favorably reviewed, calls into question the credibility and integrity of Federal prosecutors. It calls into question our Nation's commitment to even-handed justice.

I have heard my colleagues on the floor today and in committee say: This is much ado about nothing because whenever a new President comes along, they replace all of the U.S. attorneys; that is clearly political. They are replacing those serving as U.S. attorneys with people of their own choosing after they have replaced the Attorney General. There is truth to that.

The fact is, with the new Attorney General, a new team is in place. We have 93 U.S. attorneys. As President George W. Bush took office a little over 6 years ago, he replaced all of those U.S. attorneys appointed by President Clinton with his own. No one called for an investigation. No one screamed

``scandal.'' It is a tradition. It is one we accept. A new President has that chance. But we know those U.S. attorneys serve at the President's discretion and can be removed at any time for any reason.

We have an unusual circumstance we face right now. Never before in history has a President and an Attorney General fired a group of U.S. attorneys en masse, in a group, other than the expected turnover, as I mentioned, with the change of administration.

We asked the Congressional Research Service if they could undertake an analysis of U.S. attorney firings that occurred other than the changeover of a Presidency. This is what they found: Only 2 U.S. attorneys out of 486 confirmed by the Senate over the past 25 years have been fired in the middle of a Presidential term for reasons unrelated to misconduct--2 out of 486. So for some to argue that this is routine, to fire those attorneys, the facts say otherwise. Only 2 out of 486 have been fired in the midst of their term.

Why is that the case? Why have U.S. attorneys been insulated from Presidential politics? Because Federal prosecutors are supposed to be independent. They are nominated by the President and confirmed by the Senate, but, unlike other Federal public servants, they have a measure of independence.

Former Supreme Court Justice and Attorney General Robert Jackson once said: The prosecutor has more control over life, liberty, and reputation than any other person in America.

Discussing Justice Jackson's words, a scholar of the Justice Department named Lincoln Caplan has written:

The power of law enforcement to tarnish reputations, end

people's liberty and ruin lives, in other words, is so great

that it has to be exercised judiciously and, above all,

nonpolitically. That's one basic element of the rule of law.

That is what is at stake here. Eight U.S. attorneys who did not play ball with the political agenda of this White House were dropped from the team. Members of Congress have a responsibility to ask: What was that political agenda? Why were they dismissed? Does this scandal rest at the feet of the Attorney General, Mr. Gonzales; Harriet Miers, the former counsel to the President; Karl Rove, the President's political adviser; or does it reach the President's office itself?

Over the next several weeks, we are going to look into this. Passage of S. 214, the bill we will vote on at the end of this debate, will not end the inquiry. We have a lot more work to do. We need to learn whether Attorney General Gonzales and his deputies told Congress the truth when they testified just a few weeks ago. We need to have Karl Rove, Harriet Miers, and other top administration officials testify under oath about their role in these firings. I hope they will come voluntarily. If they do not, the Senate Judiciary Committee should subpoena each and every one of them. I am a member of that committee. We plan to vote on these subpoenas this Thursday.

The White House is reluctant to have senior officials testify. That is understandable. But when the shoe was on the other foot--a Democratic President and a Republican Congress--administration officials testified all the time. Under President Clinton, 47 White House officials testified before congressional committees during their service. We need to hear the truth--all of it and nothing but the truth--about the firing of the eight U.S. attorneys.

There is a second question we have to ask which is equally important: How many other U.S. attorneys were approached by the White House and asked to play ball and did play ball? Of the Nation's 93 U.S. attorneys, how many of them kept their jobs as a result of political cooperation?

We gained some insight into this question from a new study by two professors, John Cragan of Illinois State University and Donald Shields at the University of Missouri. They compiled a database of Federal indictments and investigations undertaken by U.S. attorneys against elected officials and political candidates since President Bush took office in 2001. Here is what their study found: U.S. attorneys across the Nation have investigated 298 Democrats and just 67 Republicans-- nearly 5 times as many Democratic officials as Republicans. These statistics are troubling, and we have to look into them. The firings of the U.S. attorneys and documents that have been turned over to Congress really call into question the legitimacy of all prosecutions brought by the U.S. attorney in cases involving partisan interests.

This is regrettable. There is no place for politics when it comes to prosecution, especially when it comes to public corruption and voting rights cases. If there is belief that people in the White House in either party are pushing for prosecutions to seek a political advantage, we have seriously undermined the integrity and credibility of our system of justice.

As President Teddy Roosevelt warned: Even the appearance of political interference in the process of justice is damaging to public faith in Government. Last night, as I left a Chicago restaurant, a young man and his wife were sitting at a table. He asked me to come over. He introduced himself and said he was an assistant U.S. attorney in Chicago. That is a hard job to get. It is not a political job at all. In fact, you have to be really talented to be qualified to serve in the U.S. Attorney's Office for the Northern District of Illinois.

He said to me: Senator, I would like to ask you to do your best to get to the bottom of this. We think we are doing a professional job. This suggestion that some U.S. attorneys were fired for political reasons really casts a shadow over all of us who are trying to represent the people of the United States effectively through our Department of Justice.

We owe it to him. We owe it to the U.S. attorneys across this country who have been independent in their judgment and all of the assistants who work with them to get to the bottom of this and ask the important questions. I hope the Senate Judiciary Committee will be able to move this week, perhaps next week, to get to the bottom of this and call these witnesses before us.

Mr. President, today marks a somber milestone. It was 4 years ago today that President Bush ordered our military to launch a preemptive invasion of Iraq. I can recall the vote on the Senate floor--I have spoken of it many times--which led to that decision by the President. We cast thousands of votes as Members of the Senate, the House, and most of them are hard to remember. One can never forget a vote cast about war. You know people will die as a result of that decision. We focus on eliminating the enemy--as we do in our war in Afghanistan--but we know good American soldiers will give their lives as well, and innocent people will die.

I can remember well that decision. It was a tough one, a very difficult one. But now we face 4 years of this war having been completed. As of today, we start the fifth year of this war, a war that has lasted longer than World War II.

Yesterday, on the ABC News program ``This Week,'' Stephen Hadley, the President's National Security Adviser, was asked: If the President had known 5 years ago how much this war would cost--in dollars and in lives--would he have still ordered this invasion of Iraq?

Mr. Hadley replied:

I think he would. The point is, this war has made the U.S.

safer.

Those were the words of Stephen Hadley. Unfortunately, they are wrong.

A National Intelligence Estimate released last spring warns that the war in Iraq has helped create a whole new generation of terrorists around this world.

The latest report from the Defense Department confirms our troops are now trapped in a civil war. For the longest time, we danced around using the words ``civil war.'' But even that term does not adequately express the complexity of the deadly situation we find ourselves in today.

Before our military was diverted to fight this war of choice in Iraq, they had driven the Taliban from power in Afghanistan and splintered the leadership of al-Qaida. We were in the hunt for Osama bin Laden. We knew who was responsible for 9/11, and we were determined to get him and those who worked for him. We were on track to demolish the terrorists who brought such grief to our Nation on 9/11.

What is the story today? According to Mr. Hadley in his comments yesterday on television, the war has made us ``safer.'' The fact is, today al-Qaida is regrouping and the Taliban is still fiercely fighting for control of Afghanistan.

Our military--especially the Army--is stretched to the breaking point.

There is not one Active or Reserve Army combat unit outside of Iraq and Afghanistan today that is rated ``combat ready''--not one. If we were called on to respond to another military emergency in the world with our great military, they would be hard pressed to respond because they have been depleted in terms of personnel and resources and training and equipment by this war in Iraq.

National Guard units in Illinois and across the Nation have about one-third of the equipment they need to respond to a domestic crisis or to train for an overseas mission. A recent audit by the Department of Defense inspector general found the Pentagon has failed to properly equip the soldiers it already has in Iraq and Afghanistan. Many soldiers have found themselves short on guns and ammunition, body armor, communications equipment, armored vehicles, and electronic jammers to disable IEDs.

Two hours ago, I was at Walter Reed Hospital. I make visits there and try to meet with soldiers and talk to them about how they are doing. I go to the rehab unit where amputees are trying to learn to walk. Some have lost one leg, some two. Some have lost an arm. They are struggling to get their lives back together. These are real heroes for America, and they are profiles in courage, as they struggle every single day to try to put their lives back together again.

I sat down with a group of these soldiers, all of whom had lost a leg, in this rehab room. I went around, and I said: What happened to you? Each one of them said the same thing: Well, it was an IED that hit my humvee. It was an IED that hit my humvee. It was an IED that hit my humvee.

I thought to myself: When this war started, in my first visit to Walter Reed, I met a member of the Ohio National Guard who lost his left leg. He could not wait to get back to his unit. I doubted if he ever would. I asked him what happened? He said: Well, this homemade bomb, this IED, hit my humvee. That was 4 years ago, and we still have soldiers coming into our hospitals with similar injuries without the protection they need.

The President's response to this terrible situation is to order 30,000 more troops into battle.

We will pay for this war for the rest of our lives. But the people who have paid the highest price, by far, are the men and women of the military and their families. Many soldiers and marines, sailors and airmen in Iraq are on their second, even their third or fourth tour of duty. We are pushing them to the absolute limit. They have endured great danger. Their families have endured great hardships.

As of this morning, it is sad but must be reported that 3,210 American soldiers, including 123 from my home State of Illinois, have given everything. They have given their lives in Iraq.

This is a hallowed rollcall. These are the names of every Illinois servicemember killed in Iraq since the start of this war. As we begin the fifth year of this war, I ask unanimous consent to honor these great men and women by having printed immediately after my remarks in the Congressional Record this list of those Illinois brave soldiers and marines, airmen and sailors who have given their lives in Iraq.

In addition to these fallen heroes, thousands of our troops have come home with serious injuries, disabilities--blindness, amputations, and the signature injury of this war, traumatic brain injury. We have been outraged in recent weeks to read about the shabby way some of these wounded veterans have been treated.

I went out today and I asked to finally see this infamous Building 18, which is about a block away from Walter Reed Hospital. It is a rundown, old motel that our military took over. Under Secretary Rumsfeld, they had this passion to privatize--taking the men and women who were responsible for maintaining this building and removing them and bringing in a private contractor. That is when the worst happened. The men and women who were involved in the private contract clearly did not do the job.

As a result, the Washington Post ran this well-publicized series about mold and mice droppings and evidence of bugs and the general rundown condition of Building 18--an outpatient facility for our soldiers at Walter Reed Hospital.

Every day, we learn--as I have learned back in Illinois--of wounded soldiers who have been denied proper medical care, housed in substandard and even deplorable living conditions, and forced to fight a massive bureaucracy and endure long waits for decisions about disability compensation. Meanwhile, their families suffer and many of the wounded soldiers go without medical care.

Sadly, these problems are not unique to Walter Reed, nor are they new to many of the top Pentagon officials.

Mark Benjamin is a reporter who has written some of the groundbreaking stories on the veterans health care crisis. He wrote an article in 2003, 4 years ago, about wounded National Guard soldiers being housed in sweltering cinder-block buildings at Fort Stewart in Georgia.

The Pentagon pledged then, in 2003, that no wounded soldier would be subjected to that shabby treatment again. That was 4 years ago. Yet 2 years later, in 2005, Jeff Romig, a physician's assistant from Danville, IL, and a captain in the Army National Guard, found himself living in similar conditions at a military base in Indiana after he ruptured his Achilles tendon during training.

Captain Romig had a cast on up to his hip following surgery, but he had to walk a half a mile on crutches every day to eat lunch. When it rained, mud washed into the cinder-block barracks and coated the cement floors where he was asked to live. His foot became infected. He has had five surgeries on it. He still has a hole in the back of his foot and his foot drops. He needs a brace to walk properly.

When he was released from active duty, the Army told Captain Romig the VA would pay for the brace. But then the Veterans' Administration refused. They told Captain Romig he was not entitled to VA health care until he received a disability rating, which takes 2 years. In the meantime, he would have to pay the bills himself or go without the brace and any other VA health care.

Now, who is Captain Romig? He happens to be a soldier who has served 23 years in the military--12 in the regular Army and 11 in the National Guard. He was one of the lucky ones, though. Through his employer he had private health coverage. They paid for the brace and his medical care when the VA and our Government failed him.

He worries about other wounded veterans. In an e-mail he sent me recently, he said:

Who is going to help pay the bills for a soldier's family

if he or she is disabled? The mortgage companies won't wait

two years to receive their payment and the VA made it

perfectly clear to me that if I didn't pay my bill, they

would send me to [a collection agency]; they don't want to

wait two years for payment, either. So why should a soldier

be expected to wait two years for care and financial

assistance?

There is another story I would like to share. It is about SGT Garrett Anderson of Champaign, IL. He and his wife Sam share a similar worry. He is 30 years old. She is 29. They have a 6-month-old daughter. On Wednesday, they will celebrate their second wedding anniversary.

Three months after they were married, he went to Iraq with the Illinois National Guard. Four months after that, an IED exploded next to his armored humvee in Baghdad.

The blast tore off Sergeant Anderson's right arm below the elbow, shattered his jaw, severed part of his tongue, took away much of his hearing, and punctured his body with shrapnel.

He spent 7 months at Walter Reed, and he praises the care that was given him there recently in Ward 57. He said the amputee ward could not have treated him better. I have heard the same thing. There are many outstanding individuals at Walter Reed who should not be lumped into the critical articles about Building 18. These are men and women, medical professionals, who are literally working miracles every day on these soldiers. So criticizing the situation at Walter Reed should not bring them in as well. Many of them are extraordinary and receive the highest praise from men and women who are treated there.

But after the treatment at Walter Reed for Sergeant Anderson, the months of outpatient care that followed were filled with ``massive paperwork and red tape.'' After 3 years in the Army and 4 in the National Guard, Garrett Anderson finally retired from the military last June.

Last week, 9 months later, he received his disability rating from the VA. You will recall the injuries I told you he sustained. His disability rating, after waiting, 90 percent. His wife Sam said the VA ruled that some of her husbands's shrapnel wounds were not service related because Walter Reed had not taken the time to document each and every one of them.

The Andersons are appealing the rating. They are hoping for a 100- percent disability rating, which would make Sergeant Anderson eligible for better health coverage and other benefits. Do you know how long that appeal will take? Two years--2 more years for Sergeant Anderson to wait to determine whether the VA is going to rate him as 100 percent disabled.

In the meantime, he is looking for a civilian doctor with experience treating amputees, and doing without the speech therapy and PTSD counseling he needs.

He is also going to college. His wife is trying to finish law school. They are both speaking out to try to change the system. Here is what his wife Sam says:

Each obstacle renews our desire to fix the system so that

future soldiers can serve proudly and take comfort knowing

that their country will take care of them just as they took

care of their country.

I applaud Defense Secretary Gates for the decisive steps he has taken to fix the problems at Walter Reed and to determine how widespread they are. But firing a few people--even a few generals--is not enough. The stories about wounded soldiers being mistreated raise serious questions about our planning for this war, about the capacity of the Pentagon and the VA to deal with the long-term health needs of our soldiers--post- traumatic stress disorder, traumatic brain injury, amputations. Ten years ago, the VA could never have anticipated all these challenges. Today they face them.

Every year since the war in Iraq began, the President has failed to request adequate funding for the VA. The President's proposed budget for next year would enable the VA to serve 54,000 Iraq and Afghanistan veterans--54,000. It sounds like a large number. It is. But it is 50,000 patients short of the VA's expected demand.

The President's budget provides for half of what is needed. Unbelievably, it would cut funding for defense health facilities such as Walter Reed by 13 percent. I think about that $12 billion in cash-- $12 billion in U.S. taxpayer dollars--that was flown into Iraq and cannot be accounted for, sent to Mr. Bremer and his Coalition Provisional Authority. How far would that money go to help the VA?

Here is another great statistic. In late January, the Army Times reported that in the last few years, the number of soldiers approved for permanent disability retirement decreased by more than two-thirds-- from 642 in 2001, to 209 in 2005. Think about that: a two-thirds drop in permanent disability ratings in the midst of a war? It does not make sense.

With the horrific wounds our troops are suffering--and thanks to the outstanding care they receive in the field--surviving, how can permanent disability rates be declining? Declining disability rates are part of the pattern of failing to plan properly for this war.

I know Dr. David Chu, who is an economist and mathematician by training, and he holds one of the top positions at the Pentagon. He is the Under Secretary for Defense for Personnel and Readiness. He is one of the two top Pentagon officials responsible for making sure that returning vets receive prompt outpatient care and fair compensation.

In January 2005, Dr. Chu told the Wall Street Journal that America was spending too much on benefits for soldiers and veterans. He said:

The amounts have gotten to the point where they are

hurtful. They are taking away from the Nation's ability to

defend itself.

The truth is, health care and disability benefits for wounded soldiers are not threats to our national security; they are an essential part of the cost of war and part of our national security. Somehow the Pentagon has to come to realize this.

I want to tell my colleagues one more story and then turn the floor over to my colleague from Arkansas. This is about an Illinois soldier, Army 1LT Terry Peterson of Warrenville, IL. I first met Lieutenant Peterson in January 2006 when he was recuperating at Walter Reed. I invited him to come to the President's State of the Union Address last year as my guest. He was 23 years old. He is a graduate of the Citadel. From the time he was a little boy, he wanted to be a soldier.

On December 8, 2005, 3 weeks after he arrived in Iraq, an IED ripped apart a humvee in which he was riding in Baghdad. The blast killed one soldier in the humvee and nearly killed Lieutenant Peterson. It shattered his right foot, ripped three knuckles off his right hand, and severed an artery in his left arm. He has had 20 surgeries so far. If he is lucky, he will only need two more surgeries. He has five screws in his foot, and he deals with pain all the time. He can't stand for more than 30 minutes, and it will take a miracle for him to ever be able to run again.

Lieutenant Peterson received outpatient care at Walter Reed for 9 months. Someone from home was always with him--usually his mother, his girlfriend, or his sister--trying to cut through the redtape, trying to make sure he received the very best care. His mom spent $8,000 flying back and forth between Illinois and Washington to be with her son. Lieutenant Peterson spent $10,000 out of pocket to rent hotel rooms near Walter Reed for 6 months because there was no room for him in the infamous Building 18. He has yet to be reimbursed for that expenditure. The Army says he still needs to turn in more paperwork.

Terry Peterson suffers from PTSD. He didn't see a psychiatrist until months after his injury, and then only because his father insisted. When he went back for a follow-up appointment a month later, they told him his records had been lost.

Today Lieutenant Peterson is back at Fort Stewart in Georgia waiting to finish his surgeries and get his disability rating to leave the Army. He says:

It took me a long time to stop making excuses for the

system.

Some days he says he feels like he was abandoned by the Army. But he is determined to try to fix this system so other soldiers won't go through the same thing.

Before the State of the Union Address, some 15 months ago, Terry and I met with some reporters. Terry said: I don't know if I ought to say this, but I am a conservative and a Republican. He said:

What I'm really looking forward to is just hearing that the

President is behind us.

He said he didn't want the sacrifices that he and other soldiers had made to be for nothing.

As we enter the fifth year of this war, America needs to demonstrate to all our troops and families that we are behind them, and that takes more than words. It requires that we stand with our soldiers on the battlefield and when they come home wounded, for as long as they need our help.

I yield the floor.

Exhibit 1

Operation Iraqi Freedom Casualties Listed in Chronological Order

Marine Corporal Brian Kennedy, 25, of Glenview, IL.

Marine Captain Ryan Anthony Beaupre, 30, of St. Anne, IL.

Marine Private Jonathan L. Gifford, 30, of Decatur, IL.

Marine Corporal Evan James, 20, La Harpe, IL.

Army Specialist Brandon Rowe, 20, of Roscoe, IL.

Army Reserve Specialist Rachael Lacy, 22, of Lynwood, IL.

Marine First Sergeant Edward Smith, 38, of Chicago, IL.

Army Staff Sergeant Lincoln Hollinsaid, 27, of Malden, IL.

Marine Lance Corporal Jakub Henryk Kowalik, 21, of

Schaumburg, IL.

Marine Lance Corporal Nicholas Brian Kleiboeker, 19, of Iuka,

Mr. President, I ask unanimous consent that at the conclusion of my remarks a letter I wrote to all of my colleagues in the Senate, dated March 19, regarding interviewing U.S. attorneys be added to my statement as well.

Mr. President, there has been a lot of discussion over the course of the last couple of hours about the firing of seven U.S. attorneys and a lot of speculation about why that occurred. I suggest it is important to find out the facts and then we can quit speculating and we will know what those facts were.

I wish to change the subject a little bit to what we are going to do about it. Actually, the Judiciary Committee passed a bill which is on the floor and will be amended tomorrow, I hope, and then we will vote on that bill tomorrow. It relates to what was conceived to be at least part of the problem here. The problem was that in the PATRIOT Act, a provision of law relating to appointment of U.S. attorneys was amended to allow the Attorney General to put into office what is called an interim U.S. attorney who would never have to come before the Senate for confirmation. Early on, there was speculation that the reason these seven U.S. attorneys were asked to resign was so the administration could put someone else in their place without going through the regular confirmation process of a nominee by the President. Except for the U.S. attorney in Arkansas, however, there appears to be no evidence that was the case.

In the case of Arizona, for example, it is clear it was not the case. There was no one ready to be appointed as interim U.S. attorney. In fact, Senator McCain and I have recommended an individual to the President for his consideration to be nominated to fill the

vacancy that now exists. Nonetheless, there was concern this statute shouldn't remain on the books, that it shouldn't be that the Attorney General can appoint an interim U.S. attorney who never has to come to the Senate for confirmation.

I think there is a general consensus that that statute should be changed and that the President should nominate people and the Senate should have an opportunity to act on the nomination.

An interesting thing has occurred, however. The legislation which has been proposed doesn't achieve the objective. It doesn't even begin to achieve the objective. So I drafted an amendment which I will be offering tomorrow that actually achieves the objectives. It says: The President has to nominate to fill the vacancy and the Congress has to act on the nomination, and it provides a very strong incentive for the President to comply with the law because if he doesn't, then Congress's requirement to act on any of his U.S. attorney nominations for the entire remainder of his term is vitiated. So if he wants strong and quick action by Congress on his nominees, he has to do his part and actually nominate somebody within the 120 days required by my amendment.

Now, that achieves both objectives we are trying to achieve here: that the President will actually nominate and the Congress will have a chance to act on the nomination. The underlying bill, unfortunately, does not achieve that objective. It reverts to the old law which doesn't require the President to nominate, and if he doesn't, it has U.S. district court judges nominating U.S. attorneys, something they don't want to do and they haven't been very good at, and, in any event, confuses their article 3 responsibilities with the article 2 responsibilities of U.S. attorneys. It is not a good idea, and it doesn't solve the problem that people perceive existed.

My amendment also eliminates the current statute relating to interim nominees so the President could no longer appoint these interim nominees who would have to be confirmed by the Senate, or at least acted upon by the Senate. So I believe my amendment goes directly to the concern that our Democratic colleagues have had regarding this issue. I would hope politics wouldn't play a part in the consideration of my amendment. This issue generally has been so politicized-- everybody has chosen up teams. I would hope that conversation would not be confused with the practical solution to the problem everybody has agreed exists, and that Members on both sides, in a very clear-eyed way, could consider which of the solutions represents the best option of solving the problem.

My colleague Senator Sessions has a proposed solution which, in the event my amendment were not adopted, I would support as well, because it at least improves somewhat on the underlying bill. But the reality is we shouldn't have Federal district judges making these nominations, and if our goal is to have the President make the nomination and enable the Senate to act on the nomination, the only amendment that does that is my amendment.

I ask my colleagues on both sides of the aisle to remember we are not always going to have a Republican President and a Democratic Senate. We are going to have a Democratic President some day and a Democratic Senate or a Republican Senate or a Republican President and a Republican Senate. All the permutations will exist and politics should play no role in it. We should want the President to nominate to fill the vacancy and we should want the Congress to have a chance to act on that nomination. That is what my amendment provides.

The committee-passed bill, the number is S. 214, restores the interim U.S. attorney appointment statute that existed between 1986 and 2006. As I said, that system, which delegates to Federal judges the authority to appoint interim attorneys, has several flaws. First, as I said, S. 214 does not ensure the President will nominate a U.S. attorney. Whoever serves in a district should be someone who is nominated by the President, not a district judge. It is the President, not the district court, who is charged by the Constitution with ensuring that the laws are faithfully executed. It is the President's job to enforce the law. To do that effectively, he needs to have in place U.S. attorneys who are accountable to him. If he is not bringing important prosecutions or enforcing particular statutes, he and his superiors need to be held accountable. But if that U.S. attorney were appointed by a district judge, there is no one to complain to. Judges, after all, have lifetime tenure. It is only by ensuring that U.S. attorneys are appointed by the President that we can ensure there is ultimate accountability in the system.

This is, after all, the way in which the Constitution envisioned that accountability for enforcing the laws would be charged--by charging the President with the duty to enforce the law.

The second flaw in the underlying bill is that the Senate has no say in the selection of U.S. attorneys appointed by a district judge. One of the major complaints about the administration's handling of the interim U.S. attorney appointment authority is that it did not consult with home State Senators; that, in fact, some individuals sought to use the authority to avoid consulting with Senators.

It is right that the Senate take action in an effort to protect its prerogatives, but letting judges pick U.S. attorneys does not protect the Senate's rights. Senators have absolutely no say in the selection of a U.S. attorney who is picked by a judge. There is no confirmation of the judge's selection as there is when the President nominates someone. This system, which S. 214 puts back in place, is a solution that doesn't solve the problem that we have set out to address.

There is a third problem with this underlying bill. The judges don't want the authority. In the past, when district judges have had the authority to appoint interim U.S. attorneys, some have simply refused to do so. Incidentally, the statutory language is ``may,'' not ``shall.'' If they don't appoint judges, then the very concern that the Democratic Senators have had that an interim U.S. attorney is appointed and serves is exactly what happens. So judges don't want the authority, and there have been at least three such occasions during the current Bush administration when a district judge has refused to appoint an interim U.S. attorney and, in fact, they have had good reason. It is at least a potential conflict of interest for the district judge, who presides over criminal cases, to also select a U.S. attorney who prosecutes those cases. It is for this reason that some judges have refused to intervene in this area and select U.S. attorneys.

Yet with the committee-reported bill, we once again foist this authority on the judges. Why are we doing this--restoring power to the district judges that those judges don't want and have refused to use in the first place? Why are we forcing them to take actions that judges themselves, for good reason, see as a potential conflict of interest?

There is a fourth reason why this is not a good idea. Unfortunately, some district judges have not acquitted themselves very well when they have exercised the power to appoint U.S. attorneys. A Federal district judge may have the measure of the legal abilities of the lawyers who practice in his district, but he has no way to gauge their managerial skills, which is an important quality in a successful U.S. attorney. A district judge doesn't even have access to a candidate's personnel file and would not know of potentially disqualifying information or conflicts of interest in that file.

Allow me to describe two cases under the old system where the appointment of a U.S. attorney by a district judge led to a situation that can only be described as a fiasco:

In the Southern District of West Virginia, in 1987, the U.S. attorney for the District of West Virginia was confirmed to be a Federal judge. When the term of the interim U.S. attorney expired, the chief district judge appointed another individual as U.S. attorney. This individual was not a Justice Department employee and had not undergone an FBI background investigation. The court's appointee came into office and started asking about ongoing public integrity investigations, including investigations involving the mayor of Charleston and the State's Governor. Not only were this mayor

and Governor under investigation by the U.S. Attorney's Office at the time, both were later indicted and convicted of various Federal crimes.

The first assistant U.S. attorney, who knew that the district court's U.S. attorney had not undergone a background investigation, believed that these inquiries about pending investigations of local politicians were inappropriate and reported them to the Executive Office for United States Attorneys in Washington, DC. The Justice Department eventually had to remove the investigative files involving the Governor from that U.S. Attorney's Office for safekeeping. The Justice Department also had to direct the court's appointee to recuse herself from some criminal matters until a background check could be completed. This situation wasn't resolved until another U.S. attorney was confirmed by the Senate.

Mr. President, at the very time that some Democrats are suggesting that it just might be--there is no evidence, but it just might be that one or more of these U.S. attorneys was removed because they were hot on the trail of some Republican officeholder, they were involved in a political investigation or an investigation of a political person, and that was the reason they were removed--again, there is no evidence, but that is the suggestion--why would you want to substitute for that situation a statute that goes back to the way it used to be, which allowed the same thing to occur as in the case in West Virginia that I just cited? Why not change the situation so that the President must nominate, and the Senate explicitly has a right to act on that nominee by either confirming or rejecting the nominee?

That is the check and balance we need, rather than going back to the way it used to be, where the judge can appoint and we end up with problems like this involving investigations of political corruption.

Another case occurred in the District of South Dakota. In 2005, when the term of an interim U.S. attorney was about to expire, the chief district judge told the Justice Department he wanted to appoint an individual who didn't have any Federal prosecutorial experience, had not undergone a background check, and did not have the necessary security clearances. The Justice Department strenuously objected. Once the Justice Department believed the matter had been resolved, the Attorney General appointed another candidate. A Federal judge executed the oath of office for this appointee and copies of the Attorney General's order were sent to the district court.

Ten days later, the Justice Department received a fax indicating that the chief district judge had changed his mind and ``appointed'' the earlier, unacceptable candidate as U.S. attorney.

This created a situation where two different people claimed to be the U.S. attorney for the District of South Dakota. Defense lawyers representing criminal defendants in the district indicated that they would challenge ongoing investigations and cases on the basis that they could not know who was in charge. The chief judge then refused to negotiate a resolution to the situation. Eventually, in order to protect ongoing criminal cases, the President was forced to resolve the situation by firing the district judge's U.S. attorney. The matter was not completely resolved until another U.S. attorney was confirmed by the Senate the next year.

Don't we want to avoid this situation in the future? We are going to be asking for this kind of problem if we pass S. 214, the bill pending before us now. Far better it would be to adopt the amendment that I will offer that precludes this from occurring.

Let me point out another very serious problem that I don't think the authors of the legislation have even thought of or they clearly would have tried to fix it. S. 214 does not prevent the Attorney General from making multiple consecutive appointments of the same interim U.S. attorney. In other words, the very thing they are afraid of--that the President got rid of these people so the Attorney General could put his own person in office--is precisely what would be permitted under the bill pending before the Senate because it reinstates the exact language that existed before the statute was amended in 2006: the Attorney General could make consecutive 120-day appointments of interim U.S. attorneys.

Has this ever been done? There is at least one case where the Attorney General appointed a U.S. attorney to four consecutive 120-day interim terms. Well, that is a year and a half, by my reckoning. This incident occurred in the Eastern District of Oklahoma during the years 2000 and 2001. As a result, that district had an interim U.S. attorney who had been appointed by the Attorney General for over a year. Similarly, in Florida, in 2005, an interim U.S. attorney was appointed by the Attorney General. After the 120-day term ran out, the Attorney General appointed that individual to another interim term. After that term ran out, the Attorney General appointed him to a third interim term.

This practice is what the language of the 1986 law allowed. It is the same language that is in the bill that is before us now. It is obvious that much of the impetus for the present legislation is a desire to rein in the Attorney General's authority to appoint interim U.S. attorneys without Senate confirmation. Yet I submit that such power hasn't exactly been ``reined in,'' and 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. That system clearly falls short of ensuring that U.S. attorneys are subject to U.S. Senate confirmation, which is one of our two goals.

Finally, I note that S. 214's system of judge-made interim appointments is duplicative of the designation of acting U.S. attorneys under the Vacancies Act. We are effectively creating two different and redundant systems for appointing ``temporary'' U.S. attorneys. That makes no sense and creates obvious potential problems. For example, this system would make it possible for an individual to be consecutively designated as an acting U.S. attorney and serve in that post for 210 days and then be appointed as interim U.S. attorney and serve another 120 days. So he can be reappointed and reappointed again, if the Attorney General wanted to do so. This is nearly a whole year that someone could serve as U.S. attorney without ever being confirmed or acted upon by the Senate, without the nomination ever being sent to us.

Mr. President, we can all agree there is a problem. The solution, which was very quickly devised, is not a solution at all, as I have demonstrated. We can do better. There is nothing partisan about what I suggest. It would work equally for Republican and Democratic Presidents and Republican and Democratic Senates. To that end, I will offer an amendment on Tuesday that will achieve these goals of ensuring that U.S. attorneys are promptly nominated by the President and that the Senate has an opportunity to act on the nomination.

My amendment, again, requires that the President nominate a U.S. attorney candidate within 120 days of vacancy. It then requires that the Senate consider the nomination within 120 days after it is submitted. In order to encourage the President to abide by these time limits, the amendment provides that if the President fails to nominate an attorney candidate in any district within the time limit, then the 120-day limit on Senate consideration is vitiated for all U.S. attorney nominations for the remainder of the President's term in office. In effect, in order to enjoy the substantial benefits of prompt Senate consideration of his nominees, the President would be required to, himself, nominate promptly.

My amendment makes one other important change. It completely repeals the interim U.S. attorney statute, as I said, which is what people have gotten all concerned about in the first instance but seem to have forgotten. The interim authority is unnecessary in light of the Vacancies Act and has caused a host of problems. By repealing this authority, my amendment would effectively bar the President or a judge from appointing any long-term U.S. attorney without Senate confirmation. Any temporary gap in the office of U.S. attorney would be addressed by the Vacancies Act, which applies to all Senate-confirmed executive appointments and allows another employee or officer-- presumptively the first assistant--to carry out the function and duties of the office subject to various time limits and other requirements.

Mr. President, especially those who are upset about recent events should support a complete repeal of the interim authority. It is only a complete repeal that will ensure that U.S. attorneys are appointed by the President by and with the advice and consent of the Senate. It is only a complete repeal that will prevent consecutive appointments of U.S. attorneys by the Attorney General. It is only a complete repeal that will prevent the stacking of the interim and acting terms as U.S. attorney. Only a complete repeal ensures that Senators will always have a say in who serves for the long term as the U.S. attorney in their State.

The interim appointment authority has lately become a contentious and very politicized issue. It need not be. It is particularly in times such as these that the Senate must do what was designated by the Framers to do: cool the passions and look to the long term. I hope my colleagues will do this when I present my amendment tomorrow. I hope we will lay partisanship aside and that my amendment will be supported.

Exhibit 1

U.S. Senate

Washington, DC, March 19, 2007.

Re Interim U.S. Attorneys.

Dear Colleague: There is a consensus that the changes made

to the interim U.S. attorney statute, 28 U.S.C. Sec. 546, by

the Patriot Improvement and Reauthorization Act, Pub. L. 109-

177, were a mistake. It is my hope that we will not compound

that mistake with another--namely, involving Federal district

judges in the appointment of U.S. attorneys.

During Monday's debate and Tuesday's vote, I urge you to

consider that in the future both Democrats and Republicans

will control the Senate, and both a Democrat and a Republican

will serve as President. The solution that we adopt should be

one that we are ready to live with under all combinations of

these circumstances. It should be a solution that ensures

that the President timely nominates U.S. attorneys, and that

those U.S. attorneys are subject to confirmation by the

Senate.

S. 214, the committee-reported U.S. attorneys bill, does

not meet these goals. My proposed amendment does. S. 214

restores the interim U.S. attorney appointment statute that

existed between 1986 and 2006. That statute, which delegates

to Federal judges the authority to appoint interim U.S.

attorneys, has several flaws. First, it does not ensure that

the President will nominate a U.S. attorney. Second, the

Senate has no say in the selection of a U.S. attorney who is

appointed by a district judge.

Moreover, judges do not want this authority. Some have

simply refused to appoint interim U.S. attorneys, finding it

a potential conflict of interest for the district judge who

presides over criminal cases to also select the U.S. attorney

who would prosecute those cases. And finally, some district

judges have not acquitted themselves well when they have

exercised the power to appoint U.S. attorneys. A Federal

district judge may have the measure of the legal abilities of

the lawyers who practice in his district, but he is in no

position to gauge an individual's management skill--an

important quality in a successful U.S. attorney. A district

judge does not even have access to a candidate's personnel

file and would not know of disqualifying information in that

file or of potential conflicts of interest.

An additional problem, which may be of concern to those who

are eager to respond to recent events, is that the permissive

language of the pre-2006 statute--the same language that S.

214 restores--was understood to allow the Attorney General to

make consecutive 120-day appointments of interim U.S.

attorneys. In at least one case, the Attorney General

appointed a U.S. attorney to four consecutive 120-day

``interim'' terms. Such a system falls short of ensuring that

U.S. attorneys are subject to Senate confirmation. And

finally, S. 214's approach is duplicative of the designation

of Acting U.S. attorneys under the Vacancies Act, 5 U.S.C.

Sec. 3345 et seq., and potentially allows an individual to be

consecutively designated as an Acting U.S. attorney, and then

as an interim U.S. attorney--again avoiding Senate

confirmation for a substantial period of time.

I believe that we can do better. To that end, I will offer

an amendment on Tuesday that will achieve our goals of

ensuring that U.S. attorneys are promptly nominated by the

President and that the Senate has an opportunity to act on

those nominations. My amendment: (1) Would require the

President to nominate a U.S. attorney candidate within 120

days of a vacancy. It then would require the Senate to

consider the nomination within 120 days after it is

submitted. In order to encourage the President to abide by

these time limits, the amendment also would provide that if

the President fails to nominate a U.S. attorney candidate in

any district within the time limit, the l20-day limit on

Senate consideration is vitiated for all U.S. attorney

nominations for the remainder of that President's term in

office. In effect, in order to enjoy the substantial benefits

of prompt Senate consideration of his nominees, the President

would be required to nominate promptly.

Finally, my amendment: (2) Would completely repeal the

interim U.S. attorney statute, 28 U.S.C. Sec. 546. The

interim authority is unnecessary in light of the Vacancies

Act and has caused a host of problems. By repealing this

authority, my amendment would effectively bar the President

(or a judge) from appointing any long-term U.S. attorney

without Senate confirmation. Any temporary gap in the office

of U.S. attorney would be addressed by the Vacancies Act,

which applies to all Senate-confirmed executive appointments

and allows another employee or officer (presumptively the

First Assistant) to carry out the functions and duties of the

office subject to various time limits and other requirements.

The interim appointment authority has lately become a

contentious and very politicized issue. It need not be. It is

particularly in times like these that the Senate must do what

it was designed by the Framers to do: To cool the passions

and look to the long term. I hope that you will do so--and

that you will support my amendment.

Sincerely,

Jon Kyl.

Amendment No. 459

Mr. President, I call up my amendment which, I understand, is at the desk.

Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. President, I have listened with interest to all of my colleagues who have made a case for changing the law, but I have yet to hear any of them discuss the specific proposal they presumably intend to support. The disconnect is that it does not solve the problem they have identified. It doesn't even begin to solve the problem.

I urge my colleagues, before simply voting on a partisan basis for a bill which is allegedly designed to solve a problem, that they at least ask the question whether it solves the problem they have identified. It does not.

That is why I proposed an amendment that does solve the problem. I urge my colleagues, before they vote in 45 minutes, to read the underlying bill--it is only 2\1/2\ pages--to read my amendment--it is about the same length--and perhaps to listen to 5 minutes of what I have to say.

This is not partisan. We are going to have Republicans and Democrats as President and a Republican- and Democratic-controlled Senate. We want the U.S. attorneys to be nominated by the President, and we want the Senate to be able to act on the nominees. The underlying bill does not guarantee that. In fact, it does not even provide for it. My amendment ensures that happens.

So I urge my colleagues, you have stated the case for a change. Please listen to what I have to say because I think you will see that the bill, the underlying bill, was drafted in great haste; it does not solve the problem. My amendment does. I made several arguments yesterday on behalf of this amendment. I argued that it corrects the flaws in the underlying bill that all of us should want to correct.

Briefly, yesterday, I noted that the committee-reported bill does not ensure the President will nominate a U.S. attorney. That is the first thing we want to happen. Secondly, as a result, therefore, it certainly does not solve this problem my colleagues have been trying to identify here this morning about being accountable for Federal criminal prosecutions.

Secondly, the Senate would have no say in the selection of a U.S. attorney who is appointed by a Federal judge, which the committee- reported bill allows to happen.

Third, I noted that even the district judges themselves do not want to be

placed in the position of selecting the U.S. attorneys. They have found this to be a conflict of interest, and they have refused in some cases to appoint a U.S. attorney.

Fourth, I have argued that the district judges are ill-equipped in selecting U.S. attorneys. By the way, to my knowledge, no one has sought to dispute what I have been saying here.

Fifth--I think this would be of interest to my Democratic colleagues--the committee-reported bill does not even end the practice of allowing an individual to serve as a U.S. attorney without Senate confirmation and without a nomination even being sent to the Senate. The committee-reported bill restores the 1986 to 2006 statutory language, and that language allowed consecutive appointments of interim U.S. attorneys by the Attorney General--the exact practice my Democratic colleagues are criticizing here today. So they permit the continuation of exactly what they object to. It would allow an administration to stack the terms of acting U.S. attorneys and interim U.S. attorneys, which would allow an individual to serve as U.S. attorney for nearly a year without confirmation ever being submitted to the Senate, and perhaps beyond that.

I made these same arguments in a ``Dear Colleague'' I circulated Monday morning. I am going to try to have that letter distributed to the desks of all Senators, so when they arrive, they can at least take a look at it and evaluate what I am saying.

Yesterday, I had expected that opponents of my amendment would come to the floor and respond as to why they disagreed with my amendment. A significant number of Democratic Senators did come to the floor yesterday and today to speak to the bill. All of them urged passage of the bill. Not one of them even mentioned my amendment, an amendment the Senate will be voting on in about 45 minutes.

My staff ran a computer search this morning to see if someone at least had the decency to submit a statement for the record explaining why they opposed my amendment. No such statement exists. I listened carefully to the speeches this morning. All made a case for a change. Not one referred to the underlying bill or showed how it solves the problem, because it does not, and not one referred to my amendment, which, as I said, does solve the problem they have identified.

I understand this issue has become very political. I understand there is great pressure within the Democratic caucus to vote down any amendments to preserve an undiluted victory over the administration. But this has nothing to do with the political issue that is raging out there; it has to do with solving a specific problem we have all agreed exists with the existing law, a problem not solved by the underlying bill.

I would urge my colleagues to think before they jump over this cliff. We are all elected to a 6-year term for a reason: We are given this much time so we can stop and think about things and not be rushed into decisions that in retrospect do not appear to be a very good idea. That is how the legislation got into the PATRIOT Act that everybody is complaining about today. We are going to be compounding one mistake, I expect, with another.

Allow me, therefore, to make one final pitch to my colleagues on the Democratic side who presumably simply will follow the leader and vote against my amendment without having read it or the underlying bill. If you think about the long term, I think you will agree that my proposal is the one that makes sense. But let us think about the short term and compare how the committee-reported bill and my amendment would operate over the remaining 2 years of this administration. Let's see how they work.

Under the committee-reported bill, which presumably would be signed into law maybe in April, all interim U.S. attorneys would continue to serve for another 120 days until sometime in July. What would happen then, after that 120 days? One of three things could happen.

A district judge could pick a U.S. attorney. Well, the Senate has no say in that. Most judges who do so are very likely to reappoint the current interim U.S. attorney. If the judge does so, that interim U.S. attorney could serve through the remainder of this administration without a nomination ever having been sent to the Senate.

The second alternative is that if the district judge does not choose to appoint an interim U.S. attorney, the Attorney General could then reappoint the current one to one or more consecutive terms--the very thing all of my colleagues on the Democratic side have objected to here, that the Attorney General could appoint an interim U.S. attorney. That judicial district would have a U.S. attorney, likely for the remainder of the administration, who was not submitted to or confirmed by the Senate.

The third possibility under the committee-reported bill is that after the 120 days are up, sometime in July, the administration could simply designate the interim U.S. attorney as the acting U.S. attorney--a designation that could last until March of 2008 without a nomination having ever been submitted the Senate. By March of 2008, it is likely that no nomination would ever be submitted to the Senate and that the acting or interim U.S. attorney would simply be recess-appointed for the remainder of the President's term.

In all three scenarios, no Presidential nomination, no Senate confirmation or consideration of the nominee--the very thing the Democrats here are objecting to would continue to exist under the bill so many of them have spoken in support of.

The bottom line is, if the Senate blindly votes down my amendment and passes the committee-reported bill without fixing any of its flaws, the judicial districts that have no Senate-confirmed U.S. attorney today will stand an excellent change of having no Senate-confirmed U.S. attorney for the remainder of this administration.

Compare this to the result that would happen if my amendment were adopted. Under my amendment, the interim authority is repealed in its entirety. In other words, the main thing my Democratic colleagues have complained about--that Attorney General Gonzales can make an interim U.S. attorney appointment--would be gone. He would not be able to do that anymore. Not so under the bill.

Under my amendment the President would be required to nominate a U.S. attorney candidate within 120 days; obviously, by the middle of summer. Under my amendment, even if the President doesn't comply with this deadline because acting authority expires after 210 days if no nomination is submitted, the President would be forced to nominate a U.S. attorney before the end of the year. The bottom line is, if my amendment is adopted, all judicial districts in the country will have a Senate-confirmed U.S. attorney or at least a nomination pending in the Senate for most of the remainder of the administration.

Just in case my colleagues think I am kidding, lets look at the underlying bill. This is all there is to it. There is not a whole lot here. Let's read what it says. First, it says:

The Act may be cited as the ``Preserving United States

Attorney Independence Act of 2007.''

That is a misnomer if I ever heard one. Why? The code is amended by striking the provision above and inserting the following:

A person appointed as United States Attorney under this

section may serve until the earlier of--

(1) the qualification of a United States attorney appointed

by the President--

That is the normal process--

or

(2) the expiration of 120 days after appointment by the

Attorney General under this section.

Wait. I thought the object was not to have the Attorney General appoint U.S. attorneys. Let's read this again:

Or . . . the expiration of 120 days after appointment by

the Attorney General under this section.

So under the underlying bill, the Attorney General still gets to appoint interim U.S. attorneys. Not so under my amendment. That section is repealed. Or, third:

If an appointment expires under subsection (c)(2), the

district court for such district may appoint a United States

attorney until the vacancy is filled.

The district court, for all the reasons we have discussed, is not the best entity to be appointing a U.S. attorney. All of us would agree it would be preferable not to have the district court do that. In any event, if the object is to preserve the Senate's ability to evaluate a

nominee and to act on that nomination and reject it or confirm the individual, we have no such authority if the district judge appoints the U.S. attorney.

So there are three possibilities. That the President would nominate is one; but if he does not, there is no penalty. For those who argue that the President is trying to get by with something by having his Attorney General appoint interim U.S. attorneys who never have to be confirmed by the Senate, under this first point the President can simply do nothing, and then his Attorney General can appoint an interim U.S. attorney. I thought that was what we were trying to avoid. If the Attorney General doesn't do it, then a Federal court judge can do it. In none of those cases does the Senate have anything to say about it.

Clearly, the bill doesn't solve the problem that everybody has identified. My amendment, on the other hand, does. It does so in three specific ways. This is all of one page and three lines. It is not hard to read. What we say is that under the new law, if my amendment is adopted, section 546 of title 28 is repealed. That is the interim appointment authority of the Attorney General, the thing that everybody is objecting to: Alberto Gonzales is going to appoint an interim, and the Senate will never have a chance to act on that nominee. My amendment eliminates his ability to do that or any subsequent Attorney General, unlike the underlying bill.

So how would we fill the vacancy?

Not later than 120 days after the date on which a vacancy

occurs in the office of United States attorney for a judicial

district, the President shall submit an appointment for that

office to the Senate.

My amendment, unlike the underlying bill, requires the President to make a nomination within 120 days. Why? A, the President should be making these nominations--as we all agree--B, the Senate would then have the ability to act on that nomination. How do we know? Because we also say that 120 days after the date of submission of an appointment under paragraph 1, ``the Senate shall vote on that appointment.'' So we have ensured that the President will make a nomination and that the Senate will act on that nominee.

People have said: But you can't sue the President for not actually nominating someone. So we have a final provision that creates a very strong incentive for the President to nominate to fill the vacancy:

If the President fails to comply with paragraph (1) with

regard to the submission of any appointment for the office of

United States attorney, paragraph (2) of this subsection

shall have no force or effect with regard to any appointment

to the office of U.S. Attorney during the remainder of the

term of that President.

What that means is that the President has a very strong incentive to nominate people to fill the vacancy so that the Senate can act on that nomination because, if he fails to do so, the requirement that the Senate act on his nominations for U.S. attorney is vitiated for the remainder of his term. He no longer has any assurance that his nominees will be acted upon by the Senate.

This is about as simple--it is all on one page--a way of solving the problem that I can imagine. Let me summarize. The problem my colleagues have suggested is that in the PATRIOT Act we put a provision that allows the Attorney General to fill vacancies with an interim U.S. attorney, and the Senate has no say-so. Under the bill, that exact process continues. It is not changed. We haven't solved a thing in that regard.

What we have said is, if he doesn't do that, a district judge could fill the vacancy. That is a great solution. Actually, it is not great. District judges don't want the authority. They haven't exercised it well in the past. They are not the best people; in fact, they have an inherent conflict of interest to be appointing prosecutors who are going to appear before them. In any event, the Senate has no ability to act on the nominee. It is not even a nominee, it is an appointment. The Attorney General can appoint or a Federal district judge can appoint. In neither case does the Senate get an opportunity to confirm or reject the nominee.

The underlying bill does not solve the problem that everybody is talking about. Only my amendment solves the problem which says, first, the ability of the U.S. Attorney General to fill these vacancies with an interim U.S. attorney is now gone. He cannot do that anymore. The very thing we don't like can't happen under my amendment.

Secondly, instead of having a Federal district judge appoint a prosecutor with no Senate confirmation, we require the President to make his nomination, that the Senate will act within 120 days of receiving that nomination, and if the President fails to do so, the Senate no longer has to act on any of his U.S. attorney nominations for the remainder of his Presidency.

Those who have argued that there is a problem have an obligation to explain how their proposed solution solves the problem. I issue this challenge to any of my Democratic colleagues who plan to vote for the underlying legislation, S. 214.

Please come to the floor within the next 40 minutes and explain to me what it is in these two pages that solves the problem. Can they point to where the Attorney General can no longer appoint a U.S. attorney? No, they cannot. It says right here that the Attorney General can appoint an interim U.S. attorney, and the Senate can't do anything about it.

Can they show how the Senate would be able to act on the appointment by a Federal district judge? No. It says that a Federal district judge may appoint the U.S. attorney. Not nominate, appoint. Again, the Senate has nothing to say about it.

I challenge my Democratic colleagues--they have done a great job of saying we have a problem--to show me how their bill solves the problem. Have enough humility to come to the Senate floor and say: We made the case for a change. We are willing to acknowledge that actually your solution is a better solution than ours, and we are willing to say we will support your solution.

That would solve the problem. For the future we would all be happy. We wouldn't have politics dictate the solution that in the end doesn't work to anybody's satisfaction.

I urge colleagues, vote yea on the Kyl amendment to solve the problem that has been presented.

Absolutely.

Mr. President, there are two alternatives in that situation. Either the President's Attorney General could appoint an interim U.S. attorney with no Senate confirmation or a district judge could appoint that U.S. attorney with no Senate confirmation.

Actually, there are two alternatives. Let me read them. I am reading from the bill. I urge my colleagues to read the bill. It really helps.

There are two options if the President does not submit a nomination. This is No. 2, if the President hasn't nominated someone, ``the expiration of 120 days after appointment by the Attorney General under this section.''

The first option is that the President could try to submit another nomination. But if he chose not to do so, his Attorney General could appoint the U.S. attorney. Or the third possibility is, if an appointment expires under this section, the district court for such district may appoint a U.S. attorney. So

there are two options if the President doesn't nominate another candidate. His Attorney General can appoint the U.S. attorney, with no Senate confirmation, or a Federal district judge can appoint the U.S. attorney with no Senate confirmation.

Mr. President, that is exactly correct. Let's go to the other side of the coin. The President's own Attorney General could appoint someone who very aggressively followed his policies, and the Senate would have nothing to say about it.

Mr. President, the first vote will be on the amendment which I have offered which solves the problem that has been described here, unlike the underlying bill which does not solve the problem.

The problem is that the U.S. Attorney General can appoint interim attorneys and the Senate doesn't have a chance to confirm them. My amendment repeals that section of the law; the underlying bill does not. So it is still possible in the future, under the underlying bill, for the Attorney General to appoint interim U.S. attorneys without Senate confirmation. If he doesn't do that, then a Federal district judge makes the appointment, again without the Senate having the ability to act on the nomination. Again, my amendment solves that problem by requiring the President to nominate a candidate for U.S. attorney and requiring the Senate to act on that nomination. Should the President not fulfill his responsibility, the requirements for the Senate to act are vitiated. So there is a powerful incentive for the President to nominate.

The underlying bill reinstates the old law. The Senator from California has said the old system, which is the basis for her legislation, has worked well for 20 years. It hasn't worked well. The Senate has no ability to act on a nominee when there is no nominee. Under the existing law, the district court judge appoints the U.S. attorney. We have no ability to say yes or no to that individual. So I would argue that, from the Senate's prerogative and point of view, it has not worked well.

Secondly, yesterday, I noted two situations, one in the district for West Virginia in 1987, where the system of having a Federal judge appoint the

U.S. attorney did not work well at all. It is a case that perhaps the Presiding Officer is aware of. Eventually, the Justice Department had to remove the investigative files from the U.S. Attorney's Office and had to direct the nominee to recuse herself from some criminal matters until a background check could be effectuated. The situation was not resolved until another U.S. attorney was approved by the Senate.

We had the odd situation 2 years ago in South Dakota where we ended up having two U.S. attorneys serving at the same time because of the appointment by a district judge. The point is, the old system did not work well. In any event, the Senate has no say in the matter when a district judge appoints the U.S. attorney.

Conclusion: We have all recognized a problem exists. The problem is a U.S. attorney can be appointed without the Senate ever having a say in it, either by the Attorney General, as an interim, or by a district judge. The underlying bill permits both of those practices to continue. My amendment precludes both of those practices. It eliminates the Attorney General's ability to appoint an interim U.S. attorney and it eliminates the district court's ability to do so. It puts the responsibility where it belongs, on the shoulders of the President and the Senate.

Mr. President, I ask for the yeas and nays.