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End Of Acting U.S. Attorney's Term May Signal Battle

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By BILLY HOUSE, The Tampa Tribune

Published: October 23, 2007

WASHINGTON - With only days left before the expiration of James Klindt's appointment as the acting U.S. attorney for the Middle District of Florida, the Senate Judiciary Committee is watching closely what the Bush administration will do.

A battle may be brewing over any decision by the Department of Justice to reappoint Klindt when his term expires Friday.

Such a move could extend Klindt's stay for 120 days, potentially bringing to 330 days his service in a post that Democrats who control the Senate say normally should be filled by people whose nominations are reviewed and confirmed by the Senate.

Klindt became the acting U.S. attorney after Paul Perez stepped down from the job in March to work for Fidelity National Financial.

The job is based in Tampa and is the highest-ranking federal law enforcement position for a large swath of state stretching from the Georgia border past Naples.

The chairman of the Senate Judiciary Committee, Democrat Pat Leahy of Vermont, doesn't know what the administration plans to do, but he is concerned, a committee spokeswoman said.

The concern is because President Bush hasn't announced a permanent nominee for the post, and he has less than 15 months left in his own job.

Florida Sens. Mel Martinez, a Republican, and Bill Nelson, a Democrat, sent the names of three potential candidates to the White House this summer, but no action was taken.

Klindt, a registered Republican, was not among those three. He did not apply.

It's not Klindt's performance on the job as acting U.S. attorney that is being raised as an issue. Klindt, a career federal prosecutor who has worked more than 18 years in the district office, served as first assistant under Perez.

Rather, Leahy in recent weeks has been upset over what he has described as the Bush administration's newest tactic in trying to "circumvent Congress and the law."

The issue also is the latest chapter in the ongoing feuds between the administration and Congress that erupted last fall over accusations that former Attorney General Alberto Gonzales forced the resignations of some U.S. attorneys for political reasons. Perez has said his departure had no relation to those events.

It was amid that uproar, however, that Democrats complained the Bush administration was replacing its fired U.S. attorneys with long-term replacements in a way that evaded congressional approval through a provision of the USA Patriot Act.

A quietly incorporated provision was allowing the Bush administration to name interim U.S. attorneys without Senate confirmation.

In response, Congress passed a bill to overturn that language. The new process restores the previous role of the local U.S. District Courts in deciding whether to reappoint interim prosecutors once their 120-day interim period expires -- or appoint someone else temporarily -- if there is no permanent nominee announced and confirmed by the Senate.

But now, Leahy says the Bush administration has found yet another way to do an end-run around the Senate confirmation process.

"I had hoped when the Senate voted overwhelmingly to close this [Patriot Act] loophole, ... it would send a clear message to the administration to nominate Senate-confirmable U.S. attorneys and begin to restore an important check on the partisan influence in law enforcement," Leahy said last month.

But "regrettably," Leahy said, the administration "seems to have chosen to ignore that message."

He said that the administration, under the guidance of "an erroneous opinion of the Justice Department's Office of Legal Counsel, has been employing the Vacancies Act authority to use 'acting' U.S. attorneys and the power to appoint 'interim' U.S. attorneys sequentially."

"They have used this misguided approach to put somebody in place for 330 days without the advice and consent of the Senate. This approach runs afoul of congressional intent and the law," Leahy said.

Leahy said there are more than 20 districts with acting or interim U.S. attorneys out of 94 U.S. attorney's offices nationwide. The White House has nominated only five people for these spots, he said.

White House spokesman Blair Jones declined to comment on when the president intends to nominate a permanent successor to Perez.

Martinez said all he knows is that "we're waiting on the White House."

The Department of Justice released a written statement that confirms Klindt is acting as U.S. attorney under the Vacancies Reform Act.

Chief U.S. District Judge Patricia C. Fawsett accepts the administration's stance.

Fawsett said the Department of Justice has taken the position that once Klindt's term is up Friday, the department will make the next 120-day appointment.

If the next 120-day term expires without a presidential appointment, Fawsett said, the court has the option of making the next appointment. If the court chooses not to, the Justice Department can make the appointment.

"The court is not eager to make an appointment," the judge said.

"The court's only interest in this is that the position be filled. ... But the position needs to be filled because there are criminal cases to be brought. Somebody needs to be at the helm of the U.S. attorney's office," Fawsett said.

Reporter Elaine Silvestrini contributed to this story. Reporter Billy House can be reached at bhouse@tampatrib.com or (202) 662-7673.

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