You have asked whether President Bush should remove and replace US Attorneys whose four year terms have expired. I recommend that the Department of Justice and the Office of Counsel to the President work together to seek the replacement of a limited number of US Attorneys.
United States Attorneys are appointed to a four year term of office and thereafter may hold over until a successor is appointed as the US Code provides.
(a) The President shall appoint by and with the advice and consent of the Senate a US attorney for each judicial district.
(b) Each US Attorney shall be appointed for a term of four year. On the expiration of this term, a US attorney shall continue to perform the duties of this office until his successor is appointed and qualifies.
(c) Each US Atty is subject to removal by the President.
28 USC 54 (?) During the Reagan and Clinton Administrations, Presidents Reagan and Clinton did not seek to remove and replace US Attys they had appointed whose four-year terms had expired, but instead permitted such US Attys to serve indefinitely under the holdover provision.
There likely are several explanations for this. In some instances, Presidents Reagan and Clinton may gave been pleased with the work of the US Attys who after all they had appointed. In other instances, Presidents Reagan and Clinton may simply have been unwilling to commit the resources necessary to remove the US Attorneys, find suitable replacements (seek the advice of the home state senators) complete background investigations and secure Senate confirmations.
There are practical obstacles to removing and replacing US Attys. First, wholesale removal of US Attys would cause significant disruption of the work of the Department of Justice. Second, individual US Atty’s who were originally recommended for appointment by home state Senators who may be opposed to the President’s determination to remove the US Atty. A suitable replacement must be found in consultation with the home state Senator, the difficulty of which would vary from state to state. Fourth, a background investigation must be completed on the replacement, a task often complicated if the outgoing US Atty remains in office. Fifth, after nomination the Senate must confirm the replacement.
None of the above obstacles are insuperable. First, a limited number of US Attys could be targeted for removal and replacement, mitigating the shock to the system that would result from an across the board firing at the Department of Justice. Executive Office of the US Attorneys (EOUSA) could work with the targeted US attorneys to encourage them to leave governement. This would allow targeted US Attys to make arrangements for work in the private sector and to save face both in the DoJ community and in the local legal communities. Third, after targeted US Attorneys have left office or indicated publicly their intention to leave office the the Office of the Counsel to the President can work with home state Senators and/or other political leaders in the state to secure recommendadtions for a replacement US Atty. Finally, after background investigations are completed and the replacement candidate is nominated, the AG can appoint the nominee to serve as Interim US Atty, reducing the time during which the leadership of the office is uncertain.
If a decision is made to remove and replace alimited number of US Attorneys, then the following mught be considered for removal and replacement:
Margaret M. Chiara – US Atty for the Westerns District of Michigan.
Term expired 1/2/2005
Replacement Candidate: Rachel Brand
Home State Senators/political leaders: Levin and Stabenow, numerous
Harry E. “Bud” Cummins III US Atty for the Eastern District of Arkansas
Term expires 9/2/2006
Replacement candidates: Tim Griffin
Home State senators/political leaders: Pryor (D) and Lincoln (D) Gov Huckabee )
Kevin V. Ryan US Atty for the Northern District of California
Term expires 8/2/2006
Replacement candidates Dan Levin
Home state senators/political leaders Feinstein(D) and Boxer (D), Parsky commission.
Carol Lam US Atty for the Southern District of California
Term expires 1/18/2006
Replacement candidates Jeff Taylor, Deb Rhodes
Home State Senators/political leaders Feinstein (D) and Boxer (D), Parsky commission.
I like these folks based on my review of the evaluations of their offices conduced by the EOUSA and my interviews with officials in the Office of the Attorney General, Office of the Deputy Attorney General, and their Criminal Division. If a determination is made to seek the removal of these folks then we should similarly seek to remove and replace.
Please let me know how you would like to proceed.
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