The National Association of Assistant U.S. Attorneys called on Senate leaders to schedule votes on non-controversial judicial nominees, saying the vacancies were making it hard for prosecutors to be effective.

John E. Nordin, the NAAUSA vice president for membership and operations, wrote in a letter last week to Senate Majority Leader Harry Reid (D-Nev.) and Senate Minority Leader Mitch McConnell (R-Ky.) that federal judicial vacancies “are reaching historic highs.” The full Senate has yet to consider 26 nominees the Senate Judiciary Committee endorsed for judgeships on U.S. District Courts and U.S. Circuit Circuit Courts of Appeal.

“Our members – career federal prosecutors who daily appear in federal courts across the nation – are concerned by the increasing numbers of vacancies on the federal bench,” Nordin wrote in the Dec. 17 letter. “These vacancies increasingly are contributing to greater caseloads and workload burdens upon the remaining federal judges. Our federal courts cannot function effectively when judicial vacancies restrain the ability to render swift and sure justice.”

The NAAUSA said Senators should vote on nominees who received the backing of the Senate Judiciary Committee, the panel said Tuesday.

During the first two years of the Bush administration, when Democrats in the opposite party controlled Senate, the chamber confirmed 100 judicial appointments. By contrast, the 111th Congress has confirmed 53 circuit and district nominations to date.

Last week the Senate Judiciary Committee had 38 pending judicial nominees awaiting a Senate floor vote, but nine of those nominees were confirmed on Friday and over the weekend.

As of today there are 26 pending judicial nominations, with the Senate scheduled to vote on two more nominations this afternoon. Many of these nominations were reported as early as last January and from the 26 vacant slots, 15 are considered judicial emergencies by the Administrative Office of the U.S. Courts.

The executive director of the NAAUSA, Dennis Boyd, said such a letter is unusual for the association to send to Senate leaders.

“These vacancies increasingly are contributing to greater caseloads and workload burdens upon the remaining federal judges. Our federal courts cannot function effectively when judicial vacancies restrain the ability to render swift and sure justice,” said Nordin.

Retired Federal Bureau of Investigation agents do not like to see the actions of special agents become political fodder, but that’s just what happened with the politicization of the handling of alleged Christmas day bomber Umar Farouk Abdulmutallab.

A comment last week from Senate GOP leader Mitch McConnell, who said that “Larry King would have a more thorough interrogation of one of his [guests] than the Christmas bomber had by the Justice Department,” seems to have upset former FBI officials, according to Politico.

“It’s not just Mr. McConnell — these things go on on both sides, and it has for some time, and agents find this kind of behavior to be detestable, really,” Craig Dotlo, a retired FBI agent and the spokesman for the Society of Former Special Agents of the FBI, told Politico. “When these things are said or happen, agents just roll their eyes.”

“The members of Congress, on both sides of the aisle, like to pretend they do everything right and they’re trying to protect the American people from these bumbling idiots” who work for the FBI, he told Politico.

But, said Dotlo, McConnell may have raised some good questions about the FBI’s handling of the suspect that should be answered. He questioned whether the best agents available conducted the interview and whether 50 minutes was a long enough period of time to get all the necessary information.

Dotlo believes that the FBI is capable of conducting interviews with terror suspects, though he told Politico he would rather the FBI conduct interviews in the context of military tribunals.

Attorney General Eric Holder (DOJ)

This story was updated on Feb. 9.

As Republican criticism of Attorney General Eric Holder’s judgment mounted in recent weeks, the Justice Department at first seemed caught off guard.

Nearly two weeks lapsed between a demand from Sen. Jeff Sessions (R-Ala.) that the department identify who decided to criminally charge the alleged al-Qaeda associate who tried to blow up an airplane on Christmas Day, and Holder’s admission in a Feb. 3 letter that, “I made the decision.”

In that period Holder — and his boss, President Barack Obama — took a beating from conservatives.

Since then, the White House and the Justice Department have stepped up their messaging campaigns. But their communications strategies have been different and, at some points, seemingly uncoordinated, highlighting what outside observers say are underlying tensions between Holder’s law enforcement role and Obama’s political imperatives.

After Sessions, the top Republican on the Senate Judiciary Committee, asked on Jan. 21 who decided to read Miranda rights to Nigerian national Umar Farouk Abdulmutallab, White House press secretary Robert Gibbs pointed to Holder.

Gibbs’ comments during a press briefing were followed by Justice Department spokesman Matthew Miller issuing a statement defending the prosecution of Abdulmutallab as in line with Bush administration policies, but notably not identifying Holder with the decision directly.

Similar information appeared on the Justice Department’s blog. And a page was added to department’s Web site, titled “The Criminal Justice System as a Counterterrorism Tool.”

Then last Tuesday, the White House — not the Justice Department — summoned reporters to the White House for a briefing, in which officials speaking on background explained that the Nigerian suspect, Umar Farouk Abdulmutallab, has been cooperating with the FBI since last week.

The day after the White House briefing, Holder sent a letter to Senate Minority Leader Mitch McConnell (R-Ky.) and other Republicans, taking responsibility for the Abdulmutallab prosecution and forcefully making his case for criminally charging the man alleged to have tried to blow up the airplane with explosives hidden in his underwear.

But in recent days, White House officials — including Obama himself – have been more visible in countering the Republican attacks than Holder, at least in terms of reaching a mass audience through television.

On Sunday, Obama told CBS News in an interview, “The most important thing for the public to understand is we’re not handling any of these cases any different than the Bush administration handled them all through 9/11.” Also Sunday, White House counterterrorism adviser John Brennan said on “Meet the Press” that he is “tiring of politicians using national security issues such as terrorism as a political football.”

Holder, by contrast, delivered his most vigorous defense of terrorism prosecution decisions in the letter to the Republican senators, and in a New Yorker profile by Jane Mayer published last Thursday. He did not take to the air waves to make his case.

Andrews Kurth partner Roscoe Howard Jr., a former U.S. Attorney in D.C., said Holder exhibited “a natural prosecutor’s reaction” to the criticisms.

“I don’t think it’s anything more than him being careful,” said Howard, who was U.S. Attorney here from 2001 to 2004. “A judge might fault you for a lot of things, but they’re not going to fault you for refusing to hold a press conference.”

The New Yorker story, which had apparently been in the works for months, quoted the Attorney General himself at length laying out arguments for using the criminal justice system to try terrorists, and framing the national security debate as a battle of politics versus principles.

The piece, however, also presented the clearest argument yet that President Barack Obama’s advisers view Holder as a potential political liability, and the opinion polls appear to back them up.

A CNN/Opinion Research Corporation poll conducted Jan. 8 to Jan. 10, for example, showed that 57 percent of respondents said they would rather see Abdulmutallab charged in a military commission versus 42 percent who favored a civilian trial. Holder’s decision to try the self-proclaimed mastermind of the 9/11 attacks, Khalid Sheikh Mohammed, in federal court also met with profound disapproval in earlier opinion polls.

The pollster for Scott Brown, the Republican victor in the Massachusetts Senate race, told The New York Times recently that voters supported him 63 percent to 26 percent when told Brown favored charging suspected terrorists in military commissions while his Democratic opponent would give them constitutional rights and a civilian trial.

“This moved voters more than the health care issue did,” said Neil Newhouse, the pollster. “The terrorism stuff resonated, and it wasn’t just from the advertising we did.”

That means Holder needs to be more political — in shaping his message, not in the execution of his duties as Attorney General, his supporters say. And they hope last week was a sign he’s going to get tougher on his opponents.

“The Attorney General is his own best spokesperson. It appears that he is assuming that role and is taking a more aggressive public posture,” said James Flood, a former prosecutor and counsel to the Senate Judiciary Committee.

Flood, a shareholder in the Washington office of Brownstein Hyatt Farber Schreck, said that the Attorney General was constrained by legal considerations when speaking publicly, as are all prosecutors. But he added that he hoped to see more of Holder in print and on television.

Holder, like former Attorney General Janet Reno, has kept a busy schedule of public speaking engagements. And he has appeared on Capitol Hill (and will do so again). But his media exposure has been more limited. He has granted only a handful of extended interviews. In July, he spoke on camera with Pierre Thomas of ABC News and gave an interview to Daniel Klaidman of Newsweek.

When Holder gives print interviews, he often chooses writers and publications who run the kind of long-form profiles that can present him and his decisions in context. And they convey a sweep that rarely does the Attorney General disservice. For example, the Newsweek piece last summer began this way: “It’s the morning after Independence Day, and Eric Holder Jr. is feeling the weight of history.”

By contrast, Holder has not appeared on a Sunday talk show, where his words risk being reduced to more simplistic sound-bites, since his confirmation a year ago. And he’s held few news conferences to field questions from the media.

Reno, whose parents were reporters, gave weekly news conferences, though they weren’t always useful. (Sometimes, they consisted of her declining to answer one question after another.) But her accessibility was part of a carefully cultivated persona, which also stressed her independence from politics.

She became popular with the public, and that helped carry her through eight years of the Bill Clinton administration, in which she was on the outs with the president for appointing Independent Counsel Kenneth Starr, whose investigation led to Clinton’s impeachment by the House.

In the New Yorker piece, an unnamed lawyer close to the administration said the White House believes Holder isn’t doing enough to protect the president from political fallout, comparing him unfavorably to Reno. “They think he wants to protect his own image, and to make himself untouchable politically, the way Reno did, by doing the righteous thing,” the lawyer told the New Yorker.

But others say Holder’s not doing enough to insulate himself.

Reno overcame withering criticism of a deadly 1993 siege of a religious cult in Waco, Texas, by publicly accepting responsibility. Some say the act defined her as Attorney General.

Holder recently has had trouble getting out in front of the story. As Republicans grew more bold in their criticism of Holder’s handling of Abdulmutallab, he remained silent. And after White House press secretary Robert Gibbs identified Holder as the decision-maker in a Jan. 21 briefing, the Attorney General waited two weeks to send his letter to Congress.

In the meantime, Republican arguments — some of which were plainly false — gained traction.

“I wish Holder and the press apparatus were just a little more passionate in explaining their position,” said Carl Stern, who covered 15 attorneys general as a reporter before joining the Clinton administration as Reno’s chief spokesman. “I can understand as professionals they like to stay cool and above the fray, but then they shouldn’t complain if they become the victims of this ideological stuff.”

But, he added, last week’s activity was a step in the right direction.

President Obama’s nominee to lead the Justice Department Tax Division received her first endorsement for the post in 2010 from an American Indian organization.

Mary L. Smith (Schoeman, Updike & Kaufman)

The All Indian Pueblo Council, a group representing 20 Pueblo Indian Nations in the Southwest, announced its support for Tax Division nominee Mary L. Smith, a member of the Cherokee Nation, in a letter to Senate leaders last week. This is the second time the Smith nomination has been before the Senate. She was first nominated early last year, but the full Senate never took up her confirmation.

“Ms. Smith is an accomplished litigator who has the skills to succeed as the head of the Tax Division,” All Indian Pueblo Council chairman Joe A. Garcia wrote in a letter to Senate Majority Leader Harry Reid (D-Nev.), Minority Leader Mitch McConnell (R-Ky.), Judiciary Committee Chairman Patrick Leahy (D-Vt.) and ranking member Jeff Sessions (R-Ala.)

The endorsement letter from the Pueblo council is the first that the Judiciary Committee has received since Smith was renominated last month.

Her nomination languished in the Senate for several months last year before it was returned to the White House on Dec. 24. Obama re-nominated her last month and she was reported out of the Senate Judiciary Committee last week on a party-line vote.

Republican senators have complained that Smith has virtually no tax law experience. Democrats have touted her past litigation work as an in-house counsel at Tyco International and as a DOJ trial attorney. We reported on Saturday that Smith has been appointed to the DOJ Civil Division pending the outcome of her nomination to lead the Tax Division.

The Senate Judiciary Committee received seven letters in support of Smith from American Indian organizations in 2009. If confirmed, Smith would be the first American Indian to serve as an Assistant Attorney General. Read our previous report on the support she has received from American Indians leaders here.

“In addition to her impressive legal credentials, Ms. Smith is also a dedicated member of the Native American community,” Garcia wrote in his letter. “Over her career, she has worked tirelessly to improve the visibility and access of Native Americans in the legal profession and to advance Native American civil rights.”

Attorney General Eric Holder on Wednesday said he made the decision to bring criminal charges against the alleged Christmas Day bomber and responded to escalating criticisms of the Obama administration’s handling of the suspect, Umar Farouk Abdulmutallab.

Eric Holder (file photo by Ryan J. Reilly / Main Justice)

In a letter to Senate Minority Leader Mitch McConnell (R-Ky.), Holder defended the move, saying that “without a single exception” alleged terrorists apprehended in the U.S. since Sept. 11, 2001, have been detained under federal criminal law. He emphasized that “no agency supported the use of law of war detention” in high-level meetings immediately after Abdulmutallab’s arrest.

“I made the decision to charge Mr. Abdulmutallab with federal crimes, and to seek his detention in connection with those charges, with the knowledge of, and with no objection from, all other relevant departments of the government,” Holder said in the letter.

The five-page letter (embedded below) was the Attorney General’s first public response to Republican critics who argue that the alleged bomber should have been transferred to military custody rather than charged criminally. He sent identical copies of the letter to 10 other Republican senators: Christopher Bond (Mo.), Tom Coburn (Okla.), Susan Collins (Maine),  John Cornyn (Texas), Lindsey Graham (S.C.), Charles Grassley (Iowa), Orrin Hatch (Utah), Jon Kyl (Ariz.), John McCain (Ariz.) and Jeff Sessions (Ala.). According to the Justice Department all of those senators had written Holder requesting information on the matter.

The debate has been fierce, with Republican members of Congress charging that the Justice Department squandered an opportunity to gather intelligence — a strange argument, Democrats counter, given Republicans’ silence when alleged terrorists were given the same treatment during the Bush administration.

The Obama administration, for its part, pushed back Tuesday evening by leaking information that Abdulmutallab has been cooperating with the FBI since being read his Miranda rights.

Director of National Intelligence Dennis Blair told the House Intelligence Committee on Wednesday that the political battle was interfering with intelligence work.

“The political dimension of what to me ought to be a national security issue has been quite high. I don’t think it has been very particularly good, I will tell you, from the inside, in terms of us trying to get the right job done to protect the United States,” Blair said, according to Politico.

McConnell and other Republican senators sent numerous letters to Attorney General condemning the decision to treat Abdulmutallab like a civilian, instead of an enemy combatant. Read our previous reports on three of the letters here, here and here.

The Senate Judiciary Committee Republicans announced shortly after the release of the Holder letter that they had sent a letter urging panel Chairman Sen. Patrick Leahy (D-Vt.) to call the Attorney General to testify before the committee. Leahy promptly issued his own letter rebuking Sessions, the ranking Republican on the panel, for sending the letter without discussing it with him. Leahy said that if Sessions had only asked, he would have learned that Leahy was already working on scheduling a hearing with Holder.

This report was updated 4:22 p.m.

Andrew Ramonas contributed to this report.

AG Letter 2-3-10

Former Attorney General Michael Mukasey spoke to Senate Republicans this afternoon, hours after he blasted Attorney General Eric Holder’s handling of the civilian trials for the five alleged planners of the Sept. 11 attacks.

Michael Mukasey

Republican leaders declined to say what Mukasey spoke about at the Senate GOP’s weekly lunch. The last Attorney General of the George W. Bush administration, Mukasey said on the Fox News program “Fox and Friends” this morning that Holder’s decision to try self-proclaimed Sept. 11 mastermind Khalid Sheikh Mohammed and four alleged co-conspirators in a New York civilian court made it look like “amateur night” at the DOJ.

“[Mukasey] has been a leader, as you know, not only as Attorney General, but since leaving as Attorney General, in helping everyone understand the difference between someone who tries to bomb a convenience store on one hand and someone who tries to blow up a plane on another,” Senate Minority Leader Mitch McConnell (R-Ky.) said at press conference following the lunch meeting.

McConnell went on to praise Sen. Lindsey Graham for bipartisan legislation the South Carolina Republican unveiled today that would prohibit the DOJ from using funds to prosecute KSM and his alleged accomplices.

“I think the administration is going to retreat here,” the minority leader said.

Elsewhere on Capitol Hill Tuesday, National Intelligence Director Dennis Blair and FBI Director Robert Mueller testified before the Senate Select Committee on Intelligence about the man who allegedly tried to ignite explosives in his underpants on a Dec. 25 Detroit-bound airplane flight as a civilian.

Sen. Christopher Bond (Mo.), the panel’s ranking Republican, criticized the Obama administration’s decision to treat Umar Farouk Abdulmutallab as a civilian.

The Republican senator said “treating terrorists like common criminals can cost us life-saving information.”

Mary Jacoby contributed to this report.

Key Senate Republicans today called on Attorney General Eric Holder to testify before Congress about the decisions that the Justice Department made about a man who allegedly tried to ignite explosives in his underpants on a Dec. 25 Detroit-bound airplane flight.

Senate Minority Leader Mitch McConnell (R-Ky.), and four top Republican committee members wrote in a letter to Holder that the decision to have FBI agents interrogate Umar Farouk Abdulmutallab and read the Nigerian his Miranda rights was “hasty.” They added that it appears that there was “little, if any, coordination” between the DOJ and national security officials.

“It is critical that the American people have a full and timely understanding of the policy and legal rationale upon which this ill-advised decision was made,” Sens. McConnell, Jeff Sessions, (R-Ala.), Christopher “Kit” Bond (R-Mo.), Susan Collins (R-Maine) and John McCain (R-Ariz.) wrote. Sessions is the ranking Republican on the Judiciary Committee; Bond is the top Republican on the Intelligence panel; Collins is the ranking Republican on the Homeland Security panel; and McCain is the ranking Republican on the Armed Services Committee.

DOJ spokesman Matthew Miller defended the decision, saying in a statement last week that the DOJ consulted national security officials before Abdulmutallab was charged in federal court and not taken into military custody. It is  not clear exactly when in the decision-making process the DOJ consulted the national security officials on Abdulmutallab.

FBI Director Robert Mueller testified last week before the Senate Judiciary Committee that the events surrounding the alleged attempted bombing were “fast-moving” and authorities had “no time” to get other investigators in place. But Mueller said decisions were made “appropriately,” including the decision to read Abdulmutallab his Miranda rights.

The letter is the latest in a series of efforts by members of Congress to address the Abdulmutallab case.

Sessions previously wrote a letter to Holder last week demanding to know who made the decision to treat Abdulmutallab as a civilian. Earlier this week, Senate Homeland Security and Governmental Affairs Committee Chairman Joe Lieberman (I-Conn.) and ranking member Collins asked Holder to remove Abdulmutallab from federal custody and treat him as a military prisoner.

Rep. Lamar Smith (R-Texas), ranking member of the House Judiciary Committee, introduced legislation yesterday that would compel the DOJ to confer with the Director of National Intelligence and the secretary of Defense before deciding if a suspected terrorist should be tried treated as a civilian.

The Senate on Tuesday was unable to muster the 60 votes necessary to cut off debate on legislation that would allocate $27.4 billion to the Justice Department.

The Senate voted was four votes short of invoking cloture on thef iscal year 2010 Commerce, Justice, science appropriations bill. The vote was 56-38.

“I think what has happened here in the Senate is outrageous,” Senate Majority Leader Harry Reid (D-Nev.) said on the Senate floor. (UPDATE: Reid voted against cutting off debate – a procedural move that allows him to file a motion to reconsider the bill.)

Reid accused Republicans of “legislating out of spite.” He predicted the bill eventually will be passed. The delay didn’t appear to be related to any DOJ-specific issues.

Minority Leader Mitch McConnell (R-Ky.) said on the floor that he wasn’t aware of any Republicans who were trying to prevent the legislation from passing. McConnell said negotiations with Democrats broke down late this afternoon over a list of almost 50 proposed amendments to the bill.

“I wouldn’t make more out of this than it is,” McConnell said on the floor. “We were very close to finishing this bill and I would suggest that we continue to work on the amendment list which is quite reasonable and wrap up the bill in the near future.”

The House has already passed a version of the legislation.

Here’s the roll call vote:

Grouped By Vote Position

Marc S. Murphy (Stites & Harbison)

Note to aspiring U.S. Attorney candidates: Don’t publish cartoons of your state’s senior senator wearing a cheerleader uniform.

Louisville lawyer Marc S. Murphy at Stites & Harbison found his name floated earlier this year for U.S. Attorney in the Western District of Kentucky. But Murphy also moonlights as an editorial cartoonist for the Louisville Courier-Journal, which runs three or four of his drawings weekly. His cartoons have skewered earmarks, the economy and politicians. But one important politician apparently doesn’t think Murphy is funny.

Since February 2008, Murphy has drawn several cartoons featuring Sen. Mitch McConnell (R-Ky.). The Senate minority leader — not much known for a sense of humor — has been depicted as a pom pom-wielding cheerleader for President George W. Bush, as suffering unintended slights from Paris Hilton and in a barber’s chair seeking a Sarah Palin updo.

“I’ve been a very harsh critic of [McConnell's] positions. There’s no question about that,” Murphy said. However, “He’s a very important powerful person who has done  a lot of good things.”

But Murphy never anticipated how McConnell might react.

After President Obama’s election, Murphy said prosecutors in the U.S. Attorney’s office in the Western District of Kentucky encouraged him to seek the head prosecutor position. Sometime during the late winter or early spring, Murphy contacted Rep. John Yarmuth (D-Ky.) to express his interest in the job.

Murphy said he’d considered running in 2006 for the seat eventually captured by Yarmuth. But Yarmuth had talked him out of it. After President Obama’s election, Yarmuth considered recommending Murphy for the Louisville-based U.S. Attorney post, according to Murphy and another Kentucky lawyer with knowledge of the process.

While U.S. senators traditionally make recommendations to the president for their states’ U.S. Attorney posts, both senators from Kentucky — McConnell and Jim Bunning — are Republicans. As a result, the Democrats in the delegation,Yarmuth and Rep. Ben Chandler, were in charge of the recommendations.

However, when Yarmuth consulted McConnell earlier this year about his possible recommendations, he got a surprise, Murphy said. According to Murphy, who said he heard the story from Yarmuth, McConnell told the congressman: “You’re not going to recommend that guy who draws those cartoons of me, are you?”

Yarmuth laughed, according to Murphy. McConnell didn’t laugh back. Yarmuth asked McConnel if he was serious.  Apparently so.

Oops!

Murphy said he hasn’t spoken to Yarmuth since then. Yarmuth spokesman Trey Pollard said the congressman interviewed a number of candidates and selected the most qualified.

Murphy says he is disappointed but not discouraged. “I’m a very big supporter of President Obama,” adding he “would have been very proud to be part of the Obama administration.” He emphasized that he “didn’t feel cheated” because he “never thought [he] was a top candidate.”

But does Murphy regret drawing his McConnell cartoons?

“My night job got in the way of my public service,” he conceded. However, Murphy said there would have been an upside for McConnell if he’d gotten the job.

“If I became the U.S. Attorney I wouldn’t be able to do cartoons about him anymore.”

The Republicans aren’t too happy about Attorney General Eric Holder’s decision to appoint a special prosecutor to investigate whether CIA officers and contractors broke anti-torture laws during the interrogations of suspected terrorists.

Rep. Peter King (R-N.Y.) flying from Baghdad to Amman, Jordan with security personnel. (Gov)

New York Rep. Peter King, the ranking Republican on the Homeland Security Committee and a member of the House Intelligence Committee, used a few choice words in an interview with Politico today to express his disgust with the upcoming investigation.

“It’s bullshit. It’s disgraceful. You wonder which side they’re on,” King told Politco adding that the probe was a “declaration of war against the CIA, and against common sense.”

But he was only getting started.

“It’s a total breach of faith, and either the president is intentionally caving to the left wing of his party or he’s lost control of his administration,” King told Politico.

He then had a warning for the Obama administration.

“You will have thousands of lives that will be lost, and the blood will be on Eric Holder’s hands,” he told Politico.

Other Republicans were more reserved in their remarks about Holder’s move. Senate Minority Leader Mitch McConnell said in a statement Monday that Holder made “a poor and misguided decision.”

Democratic leaders in Congress applauded the appointment of a special prosecutor, but they said more can still be done. Connecticut Assistant U.S. Attorney John H. Durham will be limited to determining whether there is enough evidence to warrant a full investigation into CIA officials who may have violated the law in their handling of suspected terrorists.

“As I have said for many months, it is vital that this special counsel be given a broad mandate to investigate these abuses, to follow the evidence where it leads, and to prosecute where warranted,” said Rep. Jerrold Nadler (D-N.Y.), chair of the House Judiciary constitution, civil rights and civil liberties subcommittee, in a statement Monday. “This must be a robust mission to gather any and all evidence without predetermination of where it may lead. Seeking out only the low-level actors in a conspiracy to torture detainees will bring neither justice nor restored standing to our nation.”