WASHINGTON — The Bush administration's controversial firing of eight US attorneys sets up a major clash between the White House and the new Congress, as Democrats step up efforts to rein in new presidential powers.
At issue is whether the Justice Department's decision to replace these top federal prosecutors was a political purge and, if so, what Congress can do about it.
As a start, lawmakers are revisiting a last-minute provision added to last year's reauthorization of the USA Patriot Act at the request of the Justice Department. It gives the president authority to replace a US attorney without going back to the Senate for confirmation. At the time, no lawmaker noticed. But dramatic testimony Tuesday from fired attorneys, who appeared only after Congress began issuing subpoenas, is fueling a push to strike the provision.
The back-to-back Senate and House hearings also raised questions about whether three Republican lawmakers tried to influence public corruption investigations, in violation of congressional ethics rules.
"This week, the House and Senate have launched hearings into two scandals – the neglect of wounded soldiers at Walter Reed Army Medical Center and the firing of several US attorneys by the Bush administration – that profoundly demonstrate just how important it is that Democrats have restored broad and vigorous oversight," said House majority leader Steny Hoyer, in a statement on Wednesday.
A first move is to revoke the single sentence in the USA Patriot Act that allows the president to replace a US attorney without Senate confirmation.
"For over 150 years, the process of appointing interim US attorneys has worked with virtually no problems. Now, just one year after receiving unchecked authority in a little-known section added to the Patriot Act last spring, the administration has significantly abused its discretion," said Sen. Dianne Feinstein (D) of California at Tuesday's Senate hearing.
Last month, the Senate Judiciary Committee approved a bill sponsored by Senator Feinstein that limits the term for an interim appointment to 120 days – returning the law to what it was prior to the reauthorization of the Patriot Act.
"That's to create an incentive to go to the Senate for confirmation," says Feinstein. If a nominee is not confirmed by the Senate in 120 days, the appointment would be made by the district court.
So far, Senate Republicans have blocked moves to take the bill to the floor for debate. But lawmakers on both sides of the aisle predict that this week's hearings will give the bill more traction.
What emerged from the hearings are two starkly different versions of events.
No one disputes that the president has the right to remove political appointees.
"Each of us was fully aware that we served at the pleasure of the president and that we could be removed for any, or no, reason," said Carol Lam of San Diego, in a joint statement for herself and other fired US attorneys who appeared before Senate and House Judiciary panels. "In most of our cases, we were given little or no information about the reason for the request for our resignations. This hearing is not a forum to engage in speculation, and we decline to speculate about the reasons."
But in a full day of questioning, lawmakers pressed witnesses on whether they felt pressured to lay off corruption cases against Republicans – or step up prosecutions of Democrats.
Ms. Lam, who served as US attorney from 2002 until this year, declined to speculate on whether she had been fired because of her prosecution of former GOP Rep. Randy "Duke" Cunningham for corruption.
In response to the same questions, US Attorney David Iglesias told lawmakers he had been contacted by Rep. Heather Wilson and Sen. Pete Domenici, both New Mexico Republicans, who wanted to know whether he planned to indict a local Democrat for corruption before last November's elections. "I suspect they believed that I was not a help to them during the campaign, and I just started to kind of put the dots together," he told the Senate panel.
Both lawmakers acknowledge the phone calls to Mr. Iglesias but deny that they tried to influence an ongoing investigation – a violation of ethics rules. Another witness, former US Attorney John McKay in Seattle, said a former aide to Rep. Doc Hastings (R) of Washington called to ask whether he would convene a grand jury to investigate voter fraud in the 2004 governor's race. Congressman Hastings chaired the House ethics committee in the 109th Congress.
In testimony before the House panel, Justice Department official William Moschella told lawmakers that no US attorneys were "removed [or] asked or encouraged to resign in an effort to retaliate against them." He also testified that the Justice Department never intended to use interim appointments to "circumvent the Senate confirmation process."
The sharp questioning was to be expected, observers say.
"Many of those US attorneys had very strong evaluations from the Justice Department, so it shouldn't be surprising that they're questioning why they were fired," says Carl Tobias, a law professor at the University of Richmond.
Republicans on both panels say they are troubled by the way the Justice Department handled the firings, especially its decision to inform seven US attorneys on the same day without citing a reason for the firings.
"To replace seven United States attorneys all at once is not exactly a discreet thing to do," said Sen. Arlen Specter (R) of Pennsylvania, the ranking Republican on the Senate Judiciary Committee.
On Tuesday, Sen. Jon Kyl (R) of Arizona, who has been opposing moves to rewrite the rules on interim appointments of prosecutors, said he would have no objection to the bill proceeding if federal district courts were removed from the nomination process.