U.S. attorney scandal update: Who's to blame for those alarming Patriot Act revisions?

The law, lawyers, and the court.
March 5 2007 6:58 PM

Specter Detector

U.S. attorney scandal update: Who's to blame for those alarming Patriot Act revisions?

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Arlen Specter. Click image to expand.
Sen. Arlen Specter

The U.S. attorneys purge scandal is heating up. The House and Senate have convened hearings for Tuesday, promising an orgy of named names and pointed fingers. Sen. Pete Domenici, R-N.M., now admits what he once denied: that he may have had a hand in the removal of New Mexico's U.S. attorney. And the senior Justice Department official who personally canned the U.S. attorneys has just announced the date of his resignation.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

But as the political scandal spreads, the question at its heart gets less and less public attention: Who changed the Patriot Act to make it easier to replace U.S. attorneys without oversight, and how did it happen with nobody looking?

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U.S. attorneys are well aware that they serve at the president's pleasure, but new wording in the Patriot Act made it worth the president's while to fire a big, fat lot of them and hire a group of new ones. And while certainly half the scandal is that the Justice Department did that—let eight U.S. attorneys go, seemingly for no reason—we seem to have forgotten that even without the mass firings, this law had been changed in the sneakiest way imaginable.

The background: When Congress reauthorized the Patriot Act last year, it included little-noticed language that changed the way U.S. attorneys would be appointed if their predecessors were removed in the middle of their term. Under the old regime, interim U.S. attorneys needed to be confirmed by the Senate after 120 days. If they weren't, federal district judges could select their replacement. The new language removed both judicial and congressional oversight of the interim U.S. attorneys, letting DOJ anoint them indefinitely. This served three important goals: consolidating presidential power, diminishing oversight, and ensuring that "interim" prosecutors had permanent jobs.

On Feb. 6, when the Senate held hearings on the issue of prosecutorial independence, former judiciary committee Chairman Sen. Arlen Specter, R-Pa., proudly claimed to have been as clueless as the rest of us. Denying New York Democratic Sen. Charles Schumer's claim that he or his staff had "slipped the new provision into the Patriot Act in the dead of night," Specter asserted, "The first I found out about the change in the Patriot Act occurred a few weeks ago when Sen. [Dianne] Feinstein approached me on the floor."

Specter added that he only looked into how the provision was altered after Feinstein told him about it. As he explained, "I then contacted my very able chief counsel, Michael O'Neill, to find out exactly what had happened. And Mr. O'Neill advised me that the requested change had come from the Department of Justice, that it had been handled by Brett Tolman, who is now the U.S. attorney for Utah, and that the change had been requested by the Department of Justice because there had been difficulty with the replacement of a U.S. attorney in South Dakota."

Thus, at least according to Specter, O'Neill had merely been following orders from the Department of Justice when he snuck new language into the Patriot Act that would consolidate executive branch authority. Huge relief there.

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