A little-noticed provision slipped into the Patriot Act in 2005 allows the President to appoint “interim” U.S. attorneys for an indefinite period of time, without Senate confirmation. On Jan. 18, Attorney General Alberto Gonzales assured the Senate Judiciary Committee that the administration never intended to take advantage of it:
GONZALES: And so let me publicly sort of preempt perhaps a question you’re going to ask me, and that is: I am fully committed, as the administration’s fully committed, to ensure that, with respect to every United States attorney position in this country, we will have a presidentially appointed, Senate-confirmed United States attorney.
I think a United States attorney who I view as the leader, law enforcement leader, my representative in the community — I think he has greater imprimatur of authority, if in fact that person’s been confirmed by the Senate.
But in mid-December, an e-mail by Gonzales’s chief of staff, D. Kyle Sampson (who resigned yesterday), showed that the Justice Department clearly intended to skirt the Senate altogether and use the Patriot Act provision to appoint U.S. attorneys that would serve until the end of Bush’s term:
There is some risk that we’ll lose the authority, but if we don’t ever exercise it then what’s the point of having it?
Gonzales also told the Senate Judiciary Committee that the Justice Department was “working with home state senators to get U.S. attorneys nominated.” But as the Washington Post notes, e-mails show that “as early as last August,” Justice officials “discussed bypassing the two Democratic senators in Arkansas, who normally would have had input into the appointment.”
UPDATE: Also on Jan. 18, Gonzales stated, “I think I would never, ever make a change in a United States attorney for political reasons or if it would in any way jeopardize an ongoing serious investigation. I just would not do it.”