U.S. Attorneys Who Have Served Less than Full Four-year Terms, 1981-2006

Order Code RL33889 U.S. Attorneys Who Have Served Less than Full Four-year Terms, 1981-2006 February 22, 2007 Kevin M. Scott Analyst in American National Government Government and Finance Division U.S. Attorneys Who Have Served Less than Full Fouryear Terms, 1981-2006 Summary United States attorneys, who prosecute violations of federal law and defend the federal government in civil suits, are nominated by the President and confirmed by the Senate, and, once confirmed, serve four-year terms. The President may terminate the appointment of a U.S. attorney at any time. Recent controversy over the termination of seven U.S. attorneys, and the method by which the interim appointments were made to replace them, has focused attention on reasons for departure of U.S. attorneys. This report provides data on U.S. attorneys who did not complete their full fouryear term after confirmation by the Senate and whose terms did not carry over a change in presidential administration. The data collected employ records of presidential appointment and Senate confirmation of U.S. attorneys, and rely on secondary sources to provide information on reasons U.S. attorneys left office before completion of their four-year terms. At least 54 U.S. attorneys appointed by the President and confirmed by the Senate left office before completion of a four-year term between 1981 and 2006 (not counting those whose tenure was interrupted by a change in presidential administration). Of those 54, 17 left to become Article III federal judges, one left to become a federal magistrate judge, six left to serve in other positions in the executive branch, four sought elective office, two left to serve in state government, one died, and 15 left to enter or return to private practice. Of the remaining eight U.S. attorneys who left before completing a four-year term without a change in presidential administration, two were apparently dismissed by the President, and three apparently resigned after news reports indicated they had engaged in questionable personal actions. No information was available on the three remaining U.S. attorneys who resigned. Interim U.S. attorneys are appointed by the Attorney General and serve until the President nominates, and the Senate confirms, a successor. Legislation has been introduced in the 110th Congress (H.R. 580; S. 214) to revert the system of appointment of interim U.S. attorneys to the system in place from 1986 to 2006. Under that system, the appointment of an interim U.S. attorney by the Attorney General expired after 120 days. After that appointment expired, district courts could appoint interim U.S. attorneys who could serve until the President nominated, and the Senate confirmed, a permanent replacement. This report will be updated as events warrant. Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Appointment of U.S. Attorneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Interim U.S. Attorneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statutory Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Legislation in the 110th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 List of Tables Appendix. U.S. Attorneys Who Left Office After Serving Less than Full Four-Year Terms During the Tenure of One President (1981-2006) . . . . . . . 9 U.S. Attorneys Who Have Served Less than Full Four-year Terms, 1981-2006 Introduction The primary responsibilities of United States attorneys are twofold: the prosecution of violations of federal criminal and civil law, and defense of the United States in civil actions brought against the federal government in the districts to which they are assigned.1 By law, U.S. attorneys are appointed by the President with the advice and consent of the Senate for terms of four years.2 There are 93 U.S. attorneys, generally one for each of the 94 U.S. district courts (Guam and the Northern Mariana Islands district courts share one U.S. attorney.) Appointment of U.S. Attorneys Presidential nominations to the position of U.S. attorney are referred to the Senate Judiciary Committee; if the Judiciary Committee reports the nomination, then the nomination may be considered by the entire Senate. If the Judiciary Committee does not report the nomination before the end of a Congress, the nomination is returned to the President, who may resubmit the nomination. As is the case with nominations for Article III federal judgeships and U.S. marshals, nominations to the position of U.S. attorney are the subject of “blue slips,” where Senators who represent the state that includes the district to which an individual is nominated are invited to offer their approval or disapproval of the nominee. If a home state Senator returns a negative blue slip or fails to return a positive blue slip, the chair of the Senate Judiciary Committee, by tradition and in deference to the Senator, may decline to schedule a hearing or other committee action on the nomination.3 Interim U.S. Attorneys Once confirmed by the Senate, U.S attorneys can have their appointments terminated at any time by the President.4 Upon completion of a four-year term, and in the absence of a successor, “a United States attorney shall continue to perform the 1 28 USC § 547. 2 28 USC § 541 (a). 3 See CRS Report RL32013, The History of the Blue Slip in the Senate Committee on the Judiciary, 1917-Present, by Mitchel A. Sollenberger. 4 28 USC § 541 (c). CRS-2 duties of his office until his successor is appointed and qualifies.”5 If the U.S. attorney resigns or has his or her appointment terminated by the President, an interim U.S. attorney may be appointed by the Attorney General to fill the position until the President nominates, and the Senate confirms, a replacement to the position. As discussed below, legislation has been introduced in the House of Representatives and the Senate in the 110th Congress to alter the mechanism by which interim U.S. attorneys are appointed and how long interim appointees may serve. The two legislative proposals take as their starting point earlier mechanisms for appointing interim U.S. attorneys. Statutory Changes. In the past 21 years, there have been two changes in how vacant U.S. attorney positions may be filled on an interim basis, pending nomination and Senate confirmation of a permanent successor. In 1966, Congress enacted 28 U.S.C. 541,6 which governs the appointment of U.S. attorneys. The language for filling vacancies with interim U.S. attorneys enacted at that time reflected existing language.7 That language read as follows: The district court for a district in which the office of United States attorney is vacant may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court.8 In 1986, Congress amended the language to allow for the district court to continue to make an interim appointment, but first allowed the Attorney General to make an interim appointment of no more than 120 days. The revised language read as follows: (a) Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant. (b) The Attorney General shall not appoint as United States attorney a person to whose appointment by the President to that office the Senate refused to give advice and consent. (c) A person appointed as United States attorney under this section may serve until the earlier of — (1) the qualification of a United States attorney for such district appointed by the President under section 541 of this title; or (2) the expiration of 120 days after appointment by the Attorney General under this section. 5 28 USC § 541 (b). 6 P.L. 89-554, § 4(c), Sept. 6, 1966, 80 Stat. 617. 7 Before 1966, 28 USC § 506 (62 Stat. 909) used the same language as enacted in P.L. 89554. 8 P.L. 89-554, § 4(c), Sept. 6, 1966, 80 Stat. 618. This language, and all amending language, refers to 28 USC § 546. CRS-3 (d) If an appointment expires under subsection (c)(2), the district court for such district may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court.9 In 2006, as part of the reauthorization of the USA PATRIOT Act, the method for filling vacancies was again altered, allowing the Attorney General to fill a vacancy indefinitely, not for just 120 days. The current language reads as follows: (a) Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant. (b) The Attorney General shall not appoint as United States attorney a person to whose appointment by the President to that office the Senate refused to give advice and consent. (c) A person appointed as United States attorney under this section may serve until the qualification of a United States Attorney for such district appointed by the President under section 541 of this title.10 As a result of the 2006 law, district courts now play no role in appointing interim U.S. attorneys to fill vacancies. Supporters of the 2006 law have argued that district courts occasionally failed to appoint individuals put forward by the Department of Justice to interim U.S. attorney positions,11 and that allowing federal judges to appoint interim U.S. attorneys raises separation-of-powers concerns.12 Critics of the 2006 law have claimed that the new law allows U.S. attorneys to be dismissed for “political reasons”13 and that interim replacements for terminated U.S. attorneys may serve indefinitely without presidential nomination or Senate confirmation to four-year terms.14 Identification of U.S. Attorneys Serving Less than Four Years The recent dismissal of seven U.S. attorneys has raised interest in patterns in departures of U.S. attorneys not related to completion of a four-year term or a change in presidential administration. The dismissal has also renewed focus on how interim U.S. attorneys are appointed, with several Members of Congress asserting that the 9 P.L. 99-646, § 69, Nov. 10, 1986, 100 Stat. 3616. 10 P.L. 109-177, § 502, Mar. 9, 2006, 120 Stat. 246. 11 Marcia Coyle, “In Wake of Seven Firings, Branches Clash Over Interim U.S. Attorney Nominees,” National Law Journal, Feb. 13, 2007. 12 Ibid. 13 Sen. Charles Schumer, “Unanimous-Consent Request — S. 214,” remarks in the Senate, Congressional Record, daily edition, vol. 153 (Feb. 15, 2007), p. S1995. 14 Sen. Dianne Feinstein, “Unanimous-Consent Request — S. 214,” remarks in the Senate, Congressional Record, daily edition, vol. 153 (Feb. 15, 2007), p. S1995. CRS-4 2006 change was “slipped into”15 the reauthorization of the USA PATRIOT Act. CRS attempted to ascertain how often, prior to 2007, U.S. attorneys left office before completing their four-year terms without a change in presidential administration. Methodology In order to determine how many U.S. attorneys had served less than four years with tenure uninterrupted by a change in presidential administration, CRS began by contacting the Executive Office for United States Attorneys (EOUSA), which serves as the liaison between U.S. attorneys and the Department of Justice. CRS first contacted the EOUSA January 24, 2007, to seek records on the appointment and termination dates for U.S. attorneys. As of February 20, 2007, EOUSA had not provided the requested data. CRS also contacted the Office of Personnel Management (OPM), which maintains the Central Personnel Data File (CPDF). CRS spoke with a representative in OPM’s Congressional Liaison Office and was told that the database could not produce the information needed. The OPM representative referred CRS to the Department of Justice. Absent direct information on starting and termination dates of U.S. attorneys, as well as reasons for their termination, CRS collected data on presidential nomination and Senate confirmation of U.S. attorneys during the 97th (1981-1982) through 109th (2005-2006) Congresses. The Legislative Information System (LIS)16 provides a searchable database of all nominations submitted to the Senate for consideration, which allowed CRS to build records of succession for Senateconfirmed occupants of the 93 U.S. attorney positions. Using the LIS database, CRS identified each U.S. attorney who was nominated to the position less than four years after his or her predecessor was confirmed to the same position. Nomination of a successor less than four years after the confirmation of a predecessor suggests that the predecessor had served less than four years in the office.17 Excluded from these calculations were U.S. attorneys appointed after a change in presidential administration; U.S. attorneys have typically been removed from office by a new President so that the new President could appoint his own U.S. attorneys.18 Two examples may prove illustrative. In 1991, President George H.W. Bush nominated, and the Senate confirmed, Maurice Ellsworth to the position of U.S. Attorney for the District of Idaho. In September 1993, President Clinton appointed, and the Senate confirmed, Betty Richardson to the same position. Although Maurice Ellsworth served less than four years, CRS did not conduct further analysis of this 15 Ibid. 16 [http://www.congress.gov/nomis]. LIS only provides this data in electronic format for the 1981-2006 time period. 17 The President may nominate a successor before the term of a U.S. Attorney expires, anticipating the incumbent’s departure at the end of his or her term. Of the 54 cases identified and listed in the appendix, CRS found no instances where the U.S. Attorney served a full four-year term. 18 Dan Eggen, “U.S. Attorney Firings Set Stage for Congressional Battle,” Washington Post, Feb. 4, 2007, p. A07. CRS-5 incomplete term because different Presidents made the initial and new appointments. By contrast, President George W. Bush appointed (and the Senate confirmed) Michael Mosman to the position of U.S. Attorney for the District of Oregon in 2001. President George W. Bush then appointed (and the Senate confirmed) Karin Immergut to the same position in 2003. Given that Michael Mosman left office before the completion of his four-year term, and his replacement was appointed by the same President, CRS attempted to ascertain the reason for his departure. Using this methodology, CRS identified 54 instances from 1981 through 2006 in which the tenure of a U.S. attorney fell short of the four-year term specified by statute (see the appendix). This approach likely underestimates the number of U.S. attorneys who departed office before completion of their four-year terms. A U.S. attorney would not have been included in the appendix if the individual resigned (of his or her own initiative or at the President’s request) before completing a four-year term, was replaced by someone appointed by a district court or the Attorney General, and the President did not make a nomination to replace the individual until after four years from the start of the resigned U.S. attorney’s term. If, for example, a U.S. attorney confirmed in 1993 resigned in 1996, but a nomination to replace that individual was not made until 1998, the data collection method utilized by CRS would not have captured the individual who resigned in 1996. Once CRS identified all U.S. attorneys who met these criteria, CRS used secondary sources, including Martindale Hubbell Lawyer Locator,19 Nexis news searches,20 and the LIS nominations database21 to ascertain the dates and the reasons that the identified U.S. attorneys left office.22 Findings The appendix identifies 54 U.S. attorneys who were appointed between 1981 and 2006, left office before completing their four-year terms, and whose terms did not extend beyond one President’s tenure in office. The entries in the appendix are sorted in ascending order of confirmation date. In each case, CRS has annotated the results of secondary source searches regarding the approximate date of departure and the reason for departure from the position. Seventeen of the 54 U.S. attorneys left office early to take positions as Article III federal judges. For each of those individuals, the appendix provides the month that the individual was confirmed to the federal judgeship as the departure date from the position of U.S. attorney. One additional U.S. attorney, Paul Michael Warner, left in January 2006, before the completion of his second term, to become a U.S. magistrate judge. Six U.S. attorneys left their posts early to take other positions in the executive branch; all but one of those (Jim J. Marquez, who left in February 1984 to become General Counsel 19 [http://lawyers.martindale.com/marhub]. 20 [http://www.nexis.com/research]. 21 [http://www.congress.gov/nomis/]. 22 Heather Negley and Maureen Bearden, CRS Information Research Specialists, performed these searches. CRS-6 to the Department of Transportation) took positions elsewhere in the Department of Justice. Four other individuals appear to have left office to seek elective office; two more left to serve in state government. One U.S. attorney died while in office. All of the above categories account for 31 of the 54 U.S. attorneys listed in the appendix. Of the remaining 23 U.S. attorneys, the secondary sources indicate that 15 left to enter or return to private practice. Included in this category are individuals who explicitly indicated (in news reports or elsewhere) that their intent was to take a position with a law firm or as house counsel for a business. Of the remaining eight individuals, two were apparently dismissed by the President. Those two were: ! William Kennedy, U.S. Attorney for the Southern District of California. Kennedy, appointed by President Reagan, was reportedly dismissed in 1982 “for charging that the Justice Department, at the request of the Central Intelligence Agency, was blocking his attempt to prosecute Mr. [Miguel] Nassar [Haro], because he had been a key CIA informant on Mexican and Central American affairs.”23 ! J. William Petro, U.S. Attorney for the Northern District of Ohio. Petro, appointed by President Reagan, was reportedly dismissed in 1984 because the Department of Justice was “investigating allegations that Mr. Petro disclosed information about an indictment pending from an undercover operation and that the information reached a subject of the investigation.”24 Petro was later convicted on the charges.25 For the remaining six U.S. attorneys, the only information available was that they had resigned from office. News reports suggested that, in at least three of those cases, their resignations were the result of questionable conduct. Briefly, those three cases were as follows: ! Larry Colleton, U.S. Attorney for the Middle District of Florida. Colleton, appointed by President Clinton, according to news reports, “had been U.S. attorney for Florida’s middle district for only five months on May 6 [1994] when he was videotaped grabbing Jacksonville television reporter Richard Rose by the throat. The newsman had been trying to question him about recent decisions in his office.”26 He resigned in July 1994. 23 “Mexican Security Official Held on Auto Theft Charge,” Christian Science Monitor, Apr. 26, 1982, p. 2 (Midwestern Edition). 24 Leslie Maitland Weber, “U.S. Attorney in Cleveland Is Discharged by President,” New York Times, Oct. 3, 1984, p. A16. 25 “Conviction Clouding Future for Ohio Republican,” New York Times, Mar. 10, 1985, p. A23. 26 Anne Groer, “Colleton Resigns as U.S. Attorney, Gets Another Post,” Orlando Sentinel, (continued...) CRS-7 ! Kendall Coffey, U.S. Attorney for the Southern District of Florida. Coffey, appointed by President Clinton, resigned on May 12, 1996, according to news reports, “amid accusations that he bit a topless dancer on the arm during a visit to an adult club after losing a big drug case.”27 ! Frank L. McNamara, Jr., U.S. Attorney for the District of Massachusetts. McNamara, appointed by President Reagan, reportedly resigned on January 30, 1989, because he had “been the focus of heated dispute since the Justice Department announced in November [1988] that he was the target of an internal probe.”28 That probe sought to identify “whether he had lied to federal officials when he accused his predecessor as U.S. attorney, William F. Weld, of smoking marijuana. McNamara also admitted experimenting with the drug.”29 The same news story reported that had McNamara not resigned of his own accord, he would have been suspended by Attorney General Richard Thornburgh.30 For the remaining three individuals, CRS was unable to locate additional information on the reasons for their resignations. In one of these cases, Humberto Garcia, the tenure was nearly four full years (from March 2003 to January 2007). Legislation in the 110th Congress Companion legislation has been introduced in the House and the Senate to change the method of appointing interim U.S. attorneys. Both the House bill, H.R. 580, sponsored by Representative Berman, and the Senate bill, S. 214, sponsored by Senator Feinstein, as amended, would allow the Attorney General to make an interim appointment that would expire after 120 days. After 120 days, the district court would be empowered to appoint an interim U.S. attorney whose tenure would last until the President nominates, and the Senate confirms, a successor. These proposals would return the method for appointing interim U.S. attorneys to the system used between 1986 and 2006. S. 214 contains an additional provision not currently in H.R. 580 that would terminate the appointments of any existing interim U.S. attorneys 120 days after the legislation is enacted (or a successor is confirmed by the Senate, whichever comes 26 (...continued) July 30, 1994, p. A1. 27 Associated Press, “U.S. Attorney Resigns Amid Turmoil,” Tulsa World, May 18, 1996, p. A13. 28 Elizabeth Neuffer and Stephen Kurkjian, “McNamara Resigns as US Attorney; Prosecutor Cites Swirl of Controversy,” Boston Globe, Jan. 31, 1989, p. 1. 29 Ibid. 30 Ibid. CRS-8 earlier.) Under S. 214, vacancies created by the expiration of the term of an interim U.S. attorney would be filled by the district court. A hearing was held on S. 214 on February 6, 2007, and the bill, as amended, was approved by the Senate Judiciary Committee on February 8, 2007. The chairman reported the bill, as amended, on February 12, 2007. H.R. 580 was referred to the Commercial and Administrative Law Subcommittee of the House Judiciary Committee on February 2, 2007. CRS-9 Appendix. U.S. Attorneys Who Left Office After Serving Less than Full Four-Year Terms During the Tenure of One President (1981-2006) District N.OK W.OK S.IN W.TX NH N.IL ID S.CA CT KS DC NV C.CA N.OH E.OK E.NY N.FL S.IN M.GA E.WI N.FL W.OK U.S. Attorney Francis Anthony Keating II David L. Russell Sarah Evans Barker Edward C. Prado W. Stephen Thayer III Dan K. Webb Guy Gordon Hurlbutt William H. Kennedy Alan H. Nevas Jim J. Marquez Stanley S. Harris Lamond Robert Mills Stephen S. Trott J. William Petro Gary Loy Richardson Raymond J. Dearie William Thomas Dillard III John D. Tinder Joe D. Whitley Joseph P. Stadtmueller K. Michael Moore William S. Price Nomination Date 05/14/81 05/14/81 06/25/81 06/16/81 07/29/81 09/22/81 09/17/81 09/17/81 10/07/81 09/17/81 11/04/81 12/04/81 12/09/81 12/11/81 03/29/82 07/28/82 12/14/82 06/04/84 03/17/86 05/14/86 04/23/87 04/23/87 Confirmation Date 06/10/81 06/10/81 07/15/81 07/15/81 09/16/81 10/21/81 10/29/81 11/10/81 11/18/81 11/24/81 12/16/81 02/08/82 02/08/82 03/04/82 04/21/82 08/20/82 02/23/83 06/15/84 04/23/86 06/06/86 05/19/87 07/01/87 Departure Date 1983 12/81 03/84 03/84 1984 02/01/85 1984 04/05/82 10/85 02/84 11/83 1985 07/83 10/02/84 1984 03/86 1986 08/87 1987 05/87 05/19/87 1989 Departure Reason Sought Elective Office Federal Judge Federal Judge Federal Judge State Government Private Sector Private Sector Dismissed Federal Judge Executive Branch Federal Judge Private Sector Executive Branch Dismissed Private Sector Federal Judge Private Sector Federal Judge Executive Branch Federal Judge Executive Branch Sought Elective Office CRS-10 District MA NJ W.WI SC UT W.OK N.AL S.OH SC S.FL M.FL M.GA N.GA W.KY DC S.IA OR W.NC MD E.MO W.AR N.GA E.MI S.GA W.NY S.NY U.S. Attorney Frank L. McNamara, Jr. Samuel A. Alito, Jr. Patrick J. Fiedler E. Bart Daniel Dee V. Benson Vicki Lynn Miles-LaGrange Claude Harris Jr. Edmund A. Sargus, Jr. Joseph Preston Strom, Jr. Kendall Brindley Coffey Larry Herbert Colleton James Lamar Wiggins Kent Barron Alexander Stephen Beville Pence Roscoe Conklin Howard, Jr. Steven M. Colloton Michael W. Mosman Robert L. Conrad Jr. Thomas M. DiBiagio Raymond. W. Gruender Thomas C. Gean William S. Duffey, Jr. Jeffrey Gilbert Collins Richard S. Thompson Michael A. Battle James B. Comey Nomination Date 04/02/87 08/03/87 11/19/87 05/16/89 05/31/89 07/29/93 09/07/93 09/07/93 08/06/93 10/13/93 11/19/93 11/19/93 01/26/94 08/03/01 08/02/01 09/05/01 08/01/01 08/03/01 09/05/01 08/02/01 08/02/01 09/05/01 09/05/01 10/25/01 11/15/01 03/04/02 Confirmation Date 11/05/87 12/08/87 02/25/88 06/22/89 06/22/89 09/21/93 09/30/93 09/30/93 09/30/93 11/20/93 02/10/94 02/10/94 03/25/94 09/14/01 09/14/01 10/12/01 10/12/01 10/23/01 10/23/01 10/23/01 10/23/01 11/06/01 11/06/01 11/30/01 01/25/02 04/12/02 Departure Date 01/30/89 04/90 01/91 1992 09/91 11/94 10/02/94 08/96 1996 05/17/96 07/94 1996 1997 2003 05/28/04 09/03 09/03 2004 2005 05/04 06/07/04 06/04 08/22/04 2004 06/05 12/09/03 Departure Reason Resigned Federal Judge State Government Private Sector Federal Judge Federal Judge Died Federal Judge Private Sector Resigned Resigned Sought Elective Office Private Sector Sought Elective Office Resigned Federal Judge Federal Judge Private Sector Resigned Federal Judge Private Sector Federal Judge Private Sector Private Sector Executive Branch Executive Branch CRS-11 District N.TX S.IL S.FL W.WI PR UT U.S. Attorney Jane J. Boyle Miriam F. Miquelon Marcos D. Jimenez J.B. Van Hollen Humberto S. Garcia Paul Michael Warner Nomination Date 12/20/01 05/23/02 04/15/02 05/15/02 11/19/02 07/14/03 Confirmation Date 04/12/02 07/29/02 07/29/02 08/01/02 03/07/03 08/01/03 Departure Date 06/04 09/01/03 05/20/05 01/31/05 01/07 01/06 Departure Reason Federal Judge Private Sector Private Sector Private Sector Resigned Magistrate Judge Source: Nomination and Confirmation data from Legislative Information System (LIS), at [http://www.congress.gov/nomis]. CRS obtained information for departure dates and departure reasons from secondary sources.