Authority for office disputed
Posted on Wednesday, January 24, 2007
A Little Rock attorney appointed Friday to represent a man charged with capital murder and possibly facing the death penalty has filed a motion to declare Tim Griffin’s appointment last month as U. S. attorney for the Eastern District of Arkansas unconstitutional.
John Wesley Hall Jr., who represents Antoine Demetrius Baker, said in a 16-page motion filed Tuesday that Griffin’s appointment last month by U. S. Attorney General Alberto Gonzales violates Article II, Section 2, of the U. S. Constitution, which covers presidential appointments. He said it also violates a section of the U. S. Code altered last year during Congressional reauthorization of the USAPATRIOT Act.
The reworded section of the act omits a subsection that previously caused an attorney general’s appointment of a U. S. attorney to expire within 120 days. The effect is that an appointee may now serve indefinitely without having to go through the standard procedure of being nominated by the president and then scrutinized by the Senate, which then votes to confirm or deny the appointment.
Little noticed at the time, the revision has stirred anger since the discovery that a handful of U. S. attorneys across the country were inexplicably forced to resign recently and then were replaced under the new provision by appointees who had not gone through the standard procedure — although the Justice Department says it is subjecting all of them to the process.
Among those ousted was Bud Cummins, U. S. attorney for the Eastern District of Arkansas, whose job as chief federal prosecutor has generated praise in the legal community. Cummins said he was asked to resign so that Griffin, who had worked in the White House as a Republican strategist, could have a chance to serve as U. S. attorney.
Cummins, also a Republican, began serving as U. S. attorney in 2001 after being nominated by President Bush and confirmed by the Senate.
Griffin declined to comment on Hall’s challenge to the method in which Griffin secured the top legal position in the eastern part of the state. But the challenge was rebuffed Tuesday by the U. S. Department of Justice with more of the same language that the department has used over the past few weeks to defend its appointment of Griffin.
“Congress provided the Attorney General the authority in federal law (28 United States Code § 546 ) to appoint a United States Attorney because we must ensure that someone is able to carry out the important function of leading a U. S. Attorney’s office in the event a vacancy arise,” said Brian Roehrkasse, deputy director of public affairs. “We have clearly stated our commitment to having a U. S. Attorney in every district who is confirmed by the Senate, and thus there is no merit to the assertion that we are using this authority in an attempt to circumvent the confirmation process.” Roehrkasse continued, in an e-mail, “Furthermore, our record since this appointment authority was amended clearly demonstrates we are committed to working with the Senate to nominate candidates for U. S. Attorney positions. Every single time that a United States Attorney vacancy has arisen, the President either has made a nomination or the Administration is working, in consultation with home-state senators, to select candidates for nomination.” Michael Teague, spokesman for Sen. Mark Pryor, D-Ark., confirmed Tuesday that Griffin met a couple of weeks ago in Washington with Pryor, and apparently also met with the state’s other Democratic senator, Blanche Lincoln.
Teague said that while Griffin’s meeting with Pryor was cordial, “the senator still contends that the way the White House is handling this is a disservice to Bud Cummins and, in the long run, to Tim Griffin.” Teague said Pryor still expects Griffin to go through the nomination process although Griffin’s name has not yet been submitted to begin that process.
Hall’s motion states, “This is a death penalty case. Defendant alleges his chief prosecutor unlawfully (both statutorily and constitutionally ) holds office, and his prosecutor will be asking a grand jury to add an aggravator [to an existing indictment ] and will be asking a jury to sentence him to death.” If that isn’t a “case or controversy” worthy of closer examination, Hall asserted, “then nothing is.” Baker, the purported leader of a gang who has been convicted of first-degree murder in another case in state court, is charged in federal court with instructing two men to kill Jerry Otis, 21, in December 2002. Otis was to testify against Baker but was killed at Baker’s instructions, according to the indictment.
The case is assigned to U. S. District Judge G. Thomas Eisele. No hearing will be set until the government files a response to Hall’s motion.
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