From page 209 of this PDF:
http://judiciary.house.gov/Media/PDFS/OLA828-1143.pdfHere is the exchange:
From: Scott-Finan, Nancy
Sent: Friday, February 02,2007 12:11 PM
To: Blackwood, Kristine; Seidel, Rebecca
Subject: RE: (Partial) Passback:
1. Schumer is chairing even though it is a full Committee hearing. That should answer the DPC question.
2. Both by the Senate--We should leave in because the Senators have raised the issue and are saying that we are using the interim appointments to avoid Senate confirmation.
3. We feel very strongly about that paragraph; it is key to our argument.(break)
From: Blackwood, Kristine
To: Seidel, Rebecca
CC: Scott-Finan, Nancy
Sent: Fri Feb 02 11:55:05 2007
Subject: RE: (Partial) Passback:
United States Attorney Independence Act of 2007
Rebecca - there are some other minor comments.
1. Question whether we should address to "Chairman Schumer" because Schumer's not actually the chairman.
2. Question whether we should say "the appointment of USAs by and with the advice and consent of the Senate is unquestionably the apptmt method preferred by BOTH THE SENATE and the Administration – is DOJ really in a position to speak for the Senate? Surely the observation is correct, but it may appear presumptuous to some Senators for the Administration to state it.
3. A couple of stylistic edits on page six.
4. A comment on something we already took out
(the "oddity" phrase) .
What do you advise re those???
These seem to be in regard to one of these two paragraphs - note the comment - this is on page 206 of that PDF:
Comment (b4): I worry about pushing -
this argument too far because the very
same arguments can be turned around and
used to critique the President's power to
appoint judges. (E.g., "judicial appointees
would have authority for deciding cases
where one of the parties is the very
government to whom he or she was
beholden for the appointment"). Won't
insist on moving or changing this, but
would ask WJ to reconsider devoting
even this much room to it.
We are aware of no other agency where federal judges-members of a separate branch of
government-appoint the interim staff of an agency. Such a judicial appointee would have
authority for litigating the entire federal criminal and civil docket before the very district court to
whom he or she was beholden for the appointment. This arrangement, at a minimum, gives rise
to an appearance of potential conflict that undermines the performance or perceived performance
of both the Executive and Judicial Branches. A judge may be inclined to select a U.S. Attorney
who shares the judge's ideological or prosecutorial philosophy. Or a judge may select a
prosecutor apt to settle cases and enter plea bargains, so as to preserve judicial resources. See
Wiener, Inter-Branch Appointments After the Independent Counsel: Court Appointment of
United States Attorneys, 86 Minn. L. Rev. 363,428 (2001) (concluding that court appointment
of interim U.S. Attorneys is unconstitutional)^
Prosecutorial authority should be exercised by the Executive Branch in a unified manner,
consistent with the application of criminal enforcement policy under the Attorney General. S.
2 14 would undermine the effort to achieve a unified and consistent approach to prosecutions and
federal law enforcement. Court-appointed U.S. Attorneys would be at least as accountable to the
chief judge of the district court as to the Attorney General, which could, in some circumstances
become untenable. In no context is accountability more important to our society than on the
front lines of law enforcement and the exercise of prosecutorial discretion, and the Department
contends that the chief prosecutor should be accountable to the Attorney General, the President,
and ultimately the people rather than a court.
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