It’s hard to match this hilarity.
In the evolving story of the US Attorney Purge, you know that a principal part is played by this little known provision of the USA Patriot Act which allows the Attorney General to appoint US attorneys without senate confirmation (TPMmuckraker played the central role uncovering how the provision ended up in the bill). Up until — what? days ago? — the White House was promising to veto any attempts to overturn this critical bit of legislation packed with constitutional import and critical to the prosecution of the war on terror. Now, says the Justice Department, in the words of McClatchy News Service, the provision was “designed by a mid-level department lawyer without the knowledge of his superiors or anyone at the White House.”
It’s like some pulsing gyre of Anglomania — George Orwell meets Monty Python, with Benny Hill along for the ride.
The separation of powers issue is just down the memory hole. Now it was just some Justice Department lawyer freelancing.
So not withstanding the fact that we now have emails of the Attorney General’s Chief of Staff discussing the importance of using the AG’s new power to avoid senate confirmation, apparently this is how the whole thing came about …
The e-mails released Wednesday show Moschella corresponding in 2004 with a Los Angeles attorney named Daniel Collins, who had previously worked for the Justice Department.
In telephone interviews, Moschella and Collins both said Collins had floated the idea of taking district judges out of the vacancy-filling process back in 2003, when he was still at Justice. A former assistant U.S. attorney, Collins said the ability of a district court judge to appoint an interim U.S. attorney if the Senate did not confirm a nominee raised constitutional questions about the separation of powers.
In 2004, Collins said Moschella e-mailed him saying he wanted to pursue such a change. Collins said he did not ask Moschella what triggered his interest and Moschella did not volunteer it.
Collins warned Moschella that if district judges lost their appointment power, the Justice Department would have to figure out how to fill the vacancies. Among the options were making rolling appointments; putting the deputy U.S. attorney in the job temporarily, or allowing the interim appointee to remain indefinitely, Collins said Wednesday.
Collins said that the last option “was certainly never my intention.” He added that he did not know why Moschella chose to draft the provision that way.
Just sort of thinking out loud. Just the sort of option two pals come up with when brainstorming about how to solve a critical separation of powers issue that had never occured to anyone before.
