From the beginning, one of the things that has been a huge red flag in this whole affair is the fact that the 2006 reauthorization of the Patriot Act (signed by the President on 3/9/06) contained a change in the way that US Attorneys were to be replaced. Under the pre-2006 system, the AG appointed an interim and if the Senate had not confirmed a permanent replacement after 120, the courts named an new interim. Under the 2005 Patriot Act reauthorization, the AG can name an interim for an indefinite amount of time, essentially removing Senate confirmation from the process. It is that new process that was used to replace the recently fired USAs.
One of the many questions that abound is how did this item get into the reauthorization of the Patriot Act? We knew that William Moeschella has taken at least some of the blame (via a McClatchy story):
William Moschella, principal associate deputy attorney general, said that he pursued the changes on his own, without the knowledge or coordination of his superiors at the Justice Department or anyone at the White House.Moschella maintained his intent was not to strip the Senate of the power to reject U.S. attorneys that might be objectionable. Justice Department officials noted that 16 U.S. attorneys nominations have been sent to the Senate since the passage of the law in March 2006.
“I did not intend nor was it the department position that this provision be used to circumvent the Senate’s confirmation’s role,” Moschella said.
But neither Moschella nor other department officials disclosed at what point Moschella or anyone else at Justice realized the provision could be used as part of the wider strategy of replacing U.S. attorneys.
Moschella and department officials also could not explain why the then-assistant attorney general for legislative affairs was in a position to pursue such a change without input from others within the department or permission from superiors.
It is a legitimate question to be sure (emphasis mine).
The recent document dump gives us some clues as to how the whole notion unfolded.
(Side note: And contrary to assertions made here, the source of this policy change was not a recommendation from the 9/11 Commission, but rather from someone inside the DoJ. Indeed, the 9/11 Commission issued its report on 7/22/04, over a year after the first e-mail below (dated 7/9/03).)
While the documents don’t tell us the exact genesis of the notion, the e-mail in question between William Moschella (then Assistant Attorney General for Legislative Affairs and now principal associate deputy attorney general) and Dan Collins demonstrates that it has been around since at least mid-year of 2003. Based on an e-mail address in one of the notes, I am assuming that the Dan Collins in question was the Associate Deputy Attorney General (see here). It is noteworthy that Collins left that position in September of 2003, but continued to correspond with Moeschella about the issue.
Part of the same e-mail exchange discusses the pre-2005 process and indicates that Moschella wasn’t especially familiar with it. (and the Dan Bryant listed as a recipient is, I believe, an Assistant Attorney General).
I identified Collins via this e-mail from 2004, after he had left the DoJ and was in private practice in California:
Perhaps most intriguing is this e-mail from Brett Tolman to Moeschella regarding the “Dan Collins special” wherein Tolman states that he “will get the comprehensive fix done.” Tolman was the staffer for Senator Hatch who got the change to the process of appointing interim USAs into the reauthorization of the Patriot Act. (An interesting side note, Tolman has a new job as a USA–although he was confirmed by the Senate and not appointed as an interim under the provision under discussion).
The following is an e-mail from Moeschella to others in the DoJ about the pending change to the Patriot Act:
At a minimum this provides some background to the current situation. It also shows that the initiator of the change to the Patriot Act was from within the DoJ and that the idea to initiate that change dates back to at least 2003.
The e-mails from above are in this PDF file, available via the McClatchy Washington Bureau
My initial inspiration for looking for these specific e-mails came from Paul Kiel at the TPMmuckracker.
Sphere: Related Content
March 24th, 2007 at 11:02 pm
Quite frankly I’ve found this Dept. of Justice firings business very complicated, and a bit boring. Thankfully, Jon Stewart keeps us up to date in this video:
http://minor-ripper.blogspot.com/2007/03/jon-stewart-keeps-us-up-to-speed-on.html
March 25th, 2007 at 11:51 am
[...] First, political scientist Steven Taylor does a bit of investigative work: From the beginning, one of the things that has been a huge red flag in this whole affair is the fact that the 2006 reauthorization of the Patriot Act (signed by the President on 3/9/06) contained a change in the way that US Attorneys were to be replaced. Under the pre-2006 system, the AG appointed an interim and if the Senate had not confirmed a permanent replacement after 120, the courts named an new interim. Under the 2005 Patriot Act reauthorization, the AG can name an interim for an indefinite amount of time, essentially removing Senate confirmation from the process. It is that new process that was used to replace the recently fired USAs. [...]
March 26th, 2007 at 11:10 am
Reading some of the emails now. To my knowledge no one has mentioned that these discussions also circumvent the District Court appointment process.
April 1st, 2007 at 9:31 am
[...] Second, the usage of a provision of the Patriot Act, which was allegedly in the bill to insure efficient prosecution of terrorism cases, to make it easier to replace these USAs is curious at a minimum. An examination of the e-mails clearly demonstrates that they knew about the provision in the law and, indeed, suggests that the DoJ orchestrated the provision for the purpose of greater control over USA appointment, not to aid in terrorism prosecutions. [...]
April 1st, 2007 at 9:51 am
[...] Second, the usage of a provision of the Patriot Act, which was allegedly in the bill to insure efficient prosecution of terrorism cases, to make it easier to replace these USAs is curious at a minimum. An examination of the e-mails clearly demonstrates that they knew about the provision in the law and, indeed, suggests that the DoJ orchestrated the provision for the purpose of greater control over USA appointment, not to aid in terrorism prosecutions. [...]