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?

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.

Now, it's not necessarily outrageous that Sen. Specter didn't know what his subordinate slipped into the legislation. The Patriot Reauthorization was a long and hotly debated bill. While one might hope that the committee chairman would have read the legislation, you can understand that he might skip a clause or two in the melee. But this was not some minor technical amendment. It was a substantial enhancement of executive power. So, Specter now finds himself in an exceedingly strange position: His staff either lied to him or misled him about what he acknowledges to be a significant legal change. He himself observed at that same hearing: "I did not slip it in and I do not slip things in. That is not my practice. If there is some item which I have any idea is controversial I tell everybody about it."

So, Specter concedes that the item is controversial. He denies knowing about it. That implies it was O'Neill who slipped the new language in, and misled Specter and the Senate. And yet, at least as far as I can tell, nobody in power has said a word about O'Neill's conduct, and not one iota of blame has been laid at his doorstep. Joe Conason noted in Salon last month that 1) O'Neill is a former Clarence Thomas clerk, and 2) he joined Specter's staff at the same time Specter was fighting accusations of being wobbly in his fealty to the White House.

The Justice Department has been quite clear that this change was needed to do away with judicial incursions into an executive function: They felt it improper that judges were effectively making executive-branch appointments. And it now seems that either the DOJ snookered O'Neill, O'Neill snookered Specter, or Specter snookered his colleagues. But any way you slice it, the executive seems to have encroached on congressional turf in order to expand executive turf.

Whether Specter actually knew that O'Neill was carrying water for Karl Rove and turned a blind eye, or whether he was duped by O'Neill may never be known. But either way, it seems to me that Specter's office has done terrible damage to the very notion of independent and co-equal branches of government in this affair, and has yet to be called to account for it. Given that respect and esteem for co-equal independent branches of government is one of the senator's sacred cows, it's doubly ironic that no one has questioned him on this.

It's a good thing that the ousted U.S. attorneys will testify before the House and the Senate. It will clear up a good deal of confusion about the Justice Department's claim that there was something wrong with their job performance. But it seems to me that that's precisely 50 percent of the scandal here. And there are some other folks deserving of subpoenas as well. Mr. O'Neill and Mr. Tolman spring to mind. The outrage isn't merely that the Justice Department abused its power to hire and fire. The real scandal is that it rewrote federal laws to do so, yet nobody seems to know who did it or why.