U.S. Attorney Appointment Deemed Legal


	Print or Email This Page U.S. Attorney Appointment Deemed Legal Judge Finds Prosecutor’s Status Not Issue in Death-Penalty Case March 17, 2007 Arkansas Democrat-Gazette By Linda Satter LITTLE ROCK— A judge on Friday denied a Little Rock attorney’s request to declare the appointment of Tim Griffin as interim U.S. attorney for the Eastern District of Arkansas unconstitutional. U.S. District Judge G. Thomas Eisele said in a 25-page ruling that, “Whether good policy or not,” a change in federal law that many say was surreptitiously slipped into last year’s reauthorization of the USAPATRIOT Act was authorized by Congress. The newly worded Section 546 of the U.S. Code allows the U.S. attorney general to appoint an interim U.S. attorney to fill a vacancy for an indefinite period. The previous wording limited the interim appointment to 120 days. A national furor that has since exploded over the dismissal of Griffin’s predecessor, Bud Cummins, and seven other U.S. attorneys across the country, and U.S. Attorney General Alberto Gonzales’ subsequent appointment of replacements, has prompted legislation to change the wording back the way it was. Circumstances of the firings have also led to a congressional investigation into how they came about and why. In late January, before many of the fired U.S. attorneys testified before Congress, Little Rock attorney John Wesley Hall filed a motion challenging the constitutionality of the change,noting that his client, Antoine Demetrius Baker, could face the death penalty. That, he said, made it crucial to determine if Baker’s chief prosecutor legally held the job. Eiesle wrote that regardless of whether the change constitutes good policy, it “clearly expresses the will of Congress that the Attorney General have the authority to make interim appointments of U.S. Attorneys.” Eisele also addressed Hall’s arguments that the altered Section 546 interferes with another section - Section 541 - that pertains to presidential appointments of U.S. attorneys. “Such appointments do not in any way interfere with, or undercut, the power of the President under Section 541, the Appointment Clause, or the Recess Appointment Clause,” Eisele concluded on Friday. “Mr. Griffin can be removed at any time and a Presidential Appointment made with the advice and consent of the Senate. That Section 546 can be manipulated to avoid Senate confirmation under Section 541 is simply the consequence of the language chosen by the Congress.” While the U.S. Department of Justice has said it intends to put each interim U.S. attorney through the regular hoops of Senate confirmation, internal e-mails released earlier this week revealed that some highlevel officials within the Justice Department actually advocatedstalling the process as long as possible to “run out the clock” and allow the interims to serve without confirmation. Griffin said on Feb. 15 that he had informed the department that he no longer wanted his name to “go forward to the Senate” for the confirmation process. Citing negative remarks about his appointment by U.S. Sen. Mark Pryor, DArk., Griffin said he didn’t believe he would get a fair confirmation hearing. He compared an attempt to be confirmed to “volunteering to stand in front of a firing squad in the middle of a three-ring circus.” Grffin said he will stay on the job, however, until the White House nominates someone else and the Senate confirms the nominee - a process that could take months, even though U.S. Rep. John Boozman, R-Ark., said he is compiling a list of three names to submit to the White House. Griffin said Friday, upon receiving Eisele’s ruling, “As I’ve said from the beginning, I was honored to be offered this job. ... Every day, I’m doing my deadlevel best to focus on the job at hand and not be distracted” by the controversy. Hall, reached in Chicago where he was attending a meeting of the National Association of Criminal Defense Lawyers, of which he will become presidentelect in July, said after reviewing Eisele’s ruling, “Legally, he’s probably correct, although I have an immensely hard time fathoming how a guy subjected to the death penalty doesn’t have standing.” Eisele said Baker lacks standing to challenge the legality of Griffin’s appointment because the relief requested - a declaration that the appointment is unconstitutional - “would not redress any injury claimed to have been suffered by him, or which might be suffered by him in the future.” Eisele said that although he was dismissing Hall’s claim because Baker lacks standing to bring it, and that ordinarily he would not then “reach and deal with the underlying constitutional question,” he addressed the question anyway, “out of an abundance of caution and in light of defendant’s status as one charged with a capital crime and who therefore may face the death penalty.” Eisele also noted in the written ruling that although Hall challenged the legality of the secondsuperseding indictment - an indictment updated for a second time - the original indictment and the first superseding indictment both were filed during Cummins’ tenure. The judge pointed out that the chief prosecutor is not required to sign an indictment in any criminal case, capital or otherwise. He said the law requires only that the indictment be signed by “an attorney for the government,” which in this case is Assistant U.S. Attorney Patrick Harris. Baker, accused of instructing two men to kill another man who was scheduled to testify against Baker, is set for trial in July. However, if prosecutors decide to seek the death penalty - a question that must be decided at the Department of Justice in Washington - the trial will be postponed until fall.
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