Memo describes installing unconfirmed prosecutors
Justice official asked how to bypass Senate
WASHINGTON -- More than a year before the Bush administration has said it first considered firing US attorneys, a top Justice Department official asked lawyers to determine how the administration could temporarily fill vacant US attorney positions with appointees who had not been confirmed by the Senate.
In a September 2003 memo, the Justice Department's Office of Legal Counsel, which answers legal questions for the president and his appointees, described a way to install a replacement US attorney who could serve up to 330 days without Senate confirmation.
But the memo also said that any appointee would eventually still have to win confirmation from the Senate or be approved by a federal court to continue serving. Two years later, the administration quietly got a provision inserted into the USA Patriot Act reauthorization bill giving itself the power to permanently appoint replacement US attorneys without Senate or court approval.
That provision was a key component in the planning for what became a mass firing of eight US attorneys last year, documents have shown. Administration officials have told congressional investigators that the idea of firing US attorneys first arose shortly after the 2004 election.
While the memo suggests that the administration had considered replacing US attorneys as early as 2003, Guy Lewis -- the official who requested the opinion -- said he was not aware of any plan to dismiss them all at once. Lewis was director of the Executive Office of US Attorneys, which oversees federal prosecutor offices, from 2002 to 2004.
"I remember asking for it," Lewis said of the memo. "Some US attorney had left and I was trying to figure out what the options were."
Lewis, a former career prosecutor who had been Miami's top federal prosecutor, is now in private practice. He said he did not know whether anyone else saw the memo, or whether it had any connection to the later events.
Senator Charles Schumer , a New York Democrat who is a leading member of the Senate panel investigating the firings, said the memo raised new questions about the events that led to the purge.
"This shows that the Justice Department was looking into questions about replacing US attorneys far earlier than we knew," Schumer said in an e-mail yesterday. "We will need to investigate further to determine what connection, if any, this has to the unexplained firings of eight US attorneys last year."
Congress wants to know whether the Bush administration's plan to dismiss the US attorneys last year was motivated by politics, including scrapping those who were looking into alleged Republican corruption or who failed to aggressively pursue allegations of Democratic corruption or complaints of voter fraud .
The Bush administration, including Attorney General Alberto Gonzales, has denied wrongdoing.
Justice Department spokesman Brian Roehrkasse said there was no connection between the Sept. 5, 2003, memo and the decision to replace US attorneys.
The memo, which is on the Justice website, is titled "Temporary Filling of Vacancies in the Office of United States Attorney." It examined two federal laws governing how to fill vacancies temporarily in positions that ordinarily must be confirmed by the Senate.
One law allows the president to designate an "acting" replacement for any such position to serve for 210 days. The other law, which addressed only US attorneys, allowed the attorney general to appoint an "interim" replacement for 120 days, according to the memo.
However, one person could have been designated as an acting US attorney and -- after serving 210 days -- later receive the interim designation for an additional 120-day term, the memo also noted. That would have allowed the administration to install the person of its choice to serve as a US attorney for nearly a year without Senate confirmation.
That proposal became moot after March 2006, when Congress passed the Patriot Act reauthorization bill. The bill contained a little-noticed provision that eliminated the 120-day limit on the second statute, allowing the attorney general to appoint interim US attorneys who could serve indefinitely without Senate confirmation.
In the months before the firings last year, Kyle Sampson , a former top aide to Attorney General Alberto Gonzales , strongly urged using the new Patriot Act power to install replacements, documents and testimony have shown. Sampson's writings suggested such a move could be used to install new US attorneys whom the Senate might otherwise reject.
For example, the administration installed Tim Griffin , a former aide to White House political adviser Karl Rove , as a replacement US attorney in Arkansas. Griffin did not have the support of the state's senators .
Lawmakers of both parties have said they didn't know the provision had been slipped into the Patriot Act reauthorization bill, and both chambers have voted to repeal the change. 