A veteran Little Rock, Ark., attorney has lodged the first constitutional challenge to the Bush administration's attempt to appoint a U.S. attorney without seeking Senate approval.
John Wesley Hall alleged in a brief filed Tuesday in U.S. District Court in Little Rock that Atty. Gen. Alberto R. Gonzales' Dec. 20 appointment of Tim Griffin as U.S. attorney for the Eastern District of Arkansas violated the presidential appointments clause of the Constitution.
Griffin, who used to work for Bush political advisor Karl Rove, replaced Bud Cummins, a Bush appointee and one of seven U.S. attorneys around the country whom the administration has ousted since late December. The top federal prosecutors in San Diego and San Francisco were among those dismissed.
Some Democrats have suggested that the moves were made to reward friends of the White House or punish prosecutors who had taken actions that angered the administration.
Administration officials have denied that the moves were political and assert that Gonzales has the authority to take these actions under a 2006 amendment to the Patriot Act that allows recess appointments.
But Hall's challenge contends that the section of the Patriot Act that Gonzales is relying on is an attempted "end run" around the appointments clause, which mandates that the Senate confirm the president's appointees.
"Under the Constitution, only the president can appoint a U.S. attorney, not the attorney general, so this appointment is void," Hall asserted.
Hall raised the challenge in the case of Antoine Demetris Baker, who is accused of murder. Hall contends that the illegitimacy of Griffin's appointment means that the U.S. attorney's office can't take any action in the case.
He said he decided to raise the challenge in Baker's case because U.S. attorneys "have special responsibilities" in cases where they are seeking capital punishment.
Justice Department spokesman Brian Roehrkasse said that "Congress provided the attorney general the authority in federal law ... 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 arises.
"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."