U.S. Attorneys and the USA Patriot Act

The USA Patriot Act allows the president to appoint new U.S. attorneys without confirmation hearings when a vacancy arises. Some former U.S. attorneys say the flexibility puts pressure on prosecutors to pursue Washington's agenda instead of using their own judgment.

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RENEE MONTAGNE, host:

The Justice Department has quietly asked some U.S. attorneys to leave their posts, and some senators see political motivations behind the move. The Justice Department says that is, quote, "inconceivable." NPR's justice reporter Ari Shapiro is here to tell us more about that. Hello.

ARI SHAPIRO: Hi, Renee.

MONTAGNE: Remind us what U.S. attorneys do. Just let's begin there.

SHAPIRO: They're basically the local face of federal law enforcement. There are 93 of them across the country. While the Justice Department in Washington sets the national priorities for federal law enforcement, the U.S. attorneys are the ones out in the field who actually file the cases, prosecute the cases, bring the indictments. And there's not always agreement between the local U.S. attorneys and the folks in Washington about what the priorities for federal law enforcement ought to be.

MONTAGNE: So is that what happened here, an issue about priorities?

SHAPIRO: That's what the Justice Department said. They say, listen, there's, you know, a limited number of dollars for federal law enforcement. We have our priorities. For example, we want to see violent crime prosecuted more as violent crime rates around the country are going up.

And the Justice Department says when U.S. attorneys are not doing what we consider an adequate job of prosecuting the kinds of cases that we want, well then we have the right to replace them with other U.S. attorneys. So people who have been asked to leave recently include U.S. Attorney Carol Lam in San Diego, Daniel Bogden, the U.S. attorney in Nevada, David Iglesias in New Mexico, Paul Charlton in Arizona.

Not all of these people have formally announced their departure, but our sources tell us that they all have been asked to go.

MONTAGNE: Which senators are suggesting that politics are at play? And are they the only ones making this charge, if you will?

SHAPIRO: Well, three senators have introduced legislation to address it. So they are certainly the most public ones. They are all three Democrats. They include Patrick Leahy of Vermont, Dianne Feinstein of California and Mark Pryor of Arkansas. And they're basically focusing in on an amendment to the Patriot Act reauthorization last year.

That amendment says whereas in the past when a U.S. attorney left, the attorney general could appoint somebody as an interim replacement for 120 days without Senate confirmation. The amendment said that the attorney general could appoint someone indefinitely without Senate confirmation.

So these three senator see the Justice Department requests to replace these U.S. attorneys with others as sort of an end run around the Senate. They think that the attorney general's trying to evade Senate confirmation, put his political friends in these posts and sort of go around the check that the Senate is supposed to play.

MONTAGNE: Well, calling this all inconceivable by the Justice Department suggests it doesn't feel too good about all of this?

SHAPIRO: That's right. You know, the senator's proposal is to give judges the power to appoint U.S. attorneys in the interim when someone steps down, and the Justice Department hates that idea. They think it's terrible. You know, they say basically you're asking members of the judicial branch to appoint members of the executive branch. That was the law back in 1986 and prior to that. But it hasn't been since then.

The Justice Department spokesman Brian Roehrkasse said to me it is inconceivable for the a member of Congress to believe that the use of an appointment authority to fill a vacancy is in any way an attempt to circumvent the confirmation process. So they're basically denying outright that politics is at play.

This may come out very publicly tomorrow because Attorney General Alberto Gonzales is scheduled to testify before the Senate Judiciary Committee. And the chairman of the committee, Democrat Patrick Leahy of Vermont, is one of the three senators who has made this a major issue.

MONTAGNE: Ari, thanks very much.

SHAPIRO: You're welcome.

MONTAGNE: NPR's justice reporter Ari Shapiro.

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