[Senate Report 112-23]
[From the U.S. Government Publishing Office]
Calendar No. 76
112th Congress Report
SENATE
1st Session 112-23
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A BILL TO EXTEND THE TERM OF THE INCUMBENT DIRECTOR OF THE FEDERAL
BUREAU OF INVESTIGATION
_______
June 21 (legislative day, June 16), 2011.--Ordered to be printed
_______
Mr. Leahy, from the Committee on the Judiciary,
submitted the following
R E P O R T
[To accompany S. 1103]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to which was referred the
bill (S. 1103), to extend the term of the incumbent Director of
the Federal Bureau of Investigation (FBI), having considered
the same, reports favorably thereon, with an amendment, and
recommends that the bill, as amended, do pass.
CONTENTS
Page
I. Background and Purpose of the Bill...............................1
II. History of the Bill and Committee Consideration.................11
III. Section-by-Section Summary of the Bill..........................12
IV. Congressional Budget Office Cost Estimate.......................13
V. Regulatory Impact Evaluation....................................13
VI. Conclusion......................................................14
VII. Changes to Existing Law Made by the Bill, as Reported...........14
VIII.Appendix........................................................16
I. Background and Purpose of the Bill
On May 12, 2011, the President announced that he was
seeking a two-year extension of the term of FBI Director Robert
S. Mueller, III. The President requested that Congress provide
a limited exception to the statutory limit of 10 years on the
service of the FBI Director.
A. BACKGROUND
1. Director Mueller's Initial Nomination Process
Robert Mueller was nominated by President George W. Bush on
July 18, 2001. The Judiciary Committee received Mr. Mueller's
paperwork on July 24, 2001. The Committee held a hearing and
favorably reported the nomination to the Senate on August 2,
2001. The Senate confirmed him that same day by a vote of 98-0.
President Bush signed his appointment to a 10-year term on
August 4, 2001.
Director Mueller was well qualified for the position of FBI
Director at the time he was first nominated. Director Mueller
served as the United States Attorney in both Massachusetts and
Northern California. In all, he spent 12 years in United States
Attorney's Offices. In his capacity as a Federal prosecutor, he
handled cases on major financial fraud, terrorism, public
corruption, narcotics conspiracies, and international money
laundering. Director Mueller also served as the Assistant
Attorney General for the Criminal Division at the Justice
Department, and as the acting Deputy Attorney General at the
beginning of the George W. Bush administration.
Director Mueller served for three years in the United
States Marine Corps. He led a rifle platoon in Vietnam and
earned a Bronze Star, two Navy Commendation Medals, the Purple
Heart, and the Vietnamese Cross of Gallantry. Director Mueller
graduated from Princeton University, earned a master's degree
in International Relations at New York University, and a law
degree from the University of Virginia Law School.
After a medical procedure in August 2001, Director Mueller
assumed leadership of the FBI in early September 2001. A week
later, the United States was attacked on September 11, 2001.
Director Mueller has served our nation for the 10 years
following
9/11 and has helped trasnform the agency into an effective
counterterrorism organization.
2. Legislative History of the Ten-Year Term Limit of the FBI Director
The FBI was formed in 1908 as a Bureau within the
Department of Justice. The leader of the FBI has been titled
``Director'' since 1919, and has answered directly to the
Attorney General since the 1920s. In 1924, J. Edgar Hoover was
selected as FBI Director not by the President, but by Attorney
General Harlan Fiske Stone. Born in 1895, Mr. Hoover served as
Director until his death in 1972, at the age of 77, a total of
48 years.
The Senate twice passed bills to require a presidential
appointment of the FBI Director,\1\ but those bills did not
pass in the House of Representatives. In 1968, as part of the
Omnibus Crime Control Act and Safe Streets Act of 1968,
Congress finally mandated that the FBI Director be appointed by
the President and confirmed by the Senate.\2\
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\1\S. 603, 88th Cong., 1st Session (1963); and S. 313, 89th Cong.,
1st Session (1965).
\2\Omnibus Crime Control Act and Safe Streets Act of 1968, Pub. L.
No. 90-3351 (Jun. 19, 1968).
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In a 1974 report on a bill to provide for a 10-year term of
the Director, the Senate Judiciary Committee discussed the need
for the FBI Director to maintain a proper balance between
responsiveness to the Executive Branch and independence from
any unreasonable requests made by superior officials.\3\ The
report continued:
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\3\``Ten-Year Term for the FBI Director,'' U.S. Senate Committee on
the Judiciary, S. Rep. No. 93-1213 (93rd Cong., 2nd Session), at 2.
No institutional arrangement can guarantee with
certainty that any official will exercise governmental
authority with integrity and good judgment.
Nevertheless, there are especially sensitive positions
which require the greatest care on the part of Congress
in creating an environment for the responsive use of
power. It is the great value of the FBI as a criminal
investigative agency, as well as its dangerous
potential for infringing individual rights and serving
partisan or personal ambitions, that makes the office
of the FBI Director unique.\4\
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\4\Id., at 2-3.
In 1976, Congress passed a law limiting the service of an
FBI Director to a single term of 10 years.\5\ Senator Robert
Byrd of West Virginia was the lead sponsor of this legislation.
He had initially proposed a 10-year term with the possibility
of re-appointment for a second 10-year term. After considering
possible alternatives, including a 10-year term with the
possibility of a five-year renewal term, Senator Byrd
ultimately decided that 10 years was sufficient.
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\5\Pub. L. No. 94-503; 28 U.S.C. Sec. 532 note (Oct. 15, 1976).
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3. The President's Request for a Two-Year Extension
President Obama explained in a May 12, 2011, statement:
``Given the ongoing threats facing the United States, as well
as the leadership transitions at other agencies like the
Defense Department and Central Intelligence Agency, I believe
continuity and stability at the FBI is critical at this
time.''\6\ The President asked Congress ``to join together in
extending that leadership for the sake of our nation's safety
and security.''\7\
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\6\Statement of the White House, ``President Obama Proposes
Extending Term for FBI Director Robert Mueller,'' May 12, 2011,
available at http://www.whitehouse.gov/the-press-office/2011/05/12/
president-obama-proposes-extending-term-fbi-director-robert-mueller.
\7\Id.
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The President's request was made at a time of considerable
change in leadership in key national security positions of the
U.S. Government. Secretary of Defense Robert M. Gates announced
his retirement, and Leon Panetta, who was then the Director of
Central Intelligence, was nominated to replace him. General
David Petraeus was nominated to succeed Mr. Panetta as the
Director of Central Intelligence. On May 30, 2011, the
President nominated Army Gen. Martin Dempsey to be Chairman of
the Joint Chiefs of Staff. The Director of the National
Counterterrorism Center, Michael E. Leiter, announced his
intention to step down in July 2011. In addition, the
nominations of two critical nominees to the Department of
Justice with national security responsibilities remain pending:
James Cole, nominated to serve as Deputy Attorney General, and
Lisa Monaco, nominated to serve as Assistant Attorney General
for the National Security Division.
4. The Current Threat Environment and Need for Continuity in Leadership
of the FBI
On May 12, 2011, the President stated:
Bob [Mueller] transformed the FBI after September 11,
2001 into a pre-eminent counterterrorism agency, he has
shown extraordinary leadership and effectiveness at
protecting our country every day since. He has
impeccable law enforcement and national security
credentials, a relentless commitment to the rule of
law, unquestionable integrity and independence, and a
steady hand that has guided the Bureau as it confronts
our most serious threats. I am grateful for his
leadership, and ask Democrats and Republicans in
Congress to join together in extending that leadership
for the sake of our nation's safety and security.
The threats against the United States are expected to
increase around the tenth anniversary of the September 11, 2001
attacks. Indeed, evidence collected at the compound in
Abbottabad, Pakistan, that served as bin Laden's hideout
demonstrated that al Qaeda was planning to make attempts on
American soil in connection with the tenth anniversary of the
September 11, 2001 attacks. Accordingly, anxiety has heightened
in light of the successful operation against Osama bin Laden on
May 1, 2011, and recent threats of retaliation against the
United States.
The Committee heard testimony about these threats from
Director Mueller and others. In the June 8, 2011, hearing on
the requested extension of his term, Director Mueller
testified:
The FBI has never faced a more complex threat
environment than it does today. Over the past year, we
have seen an extraordinary array of national security
and criminal threats from terrorism, espionage, cyber
attacks, and traditional crimes. These threats have
ranged from attempts by al Qa'ida and its affiliates to
place bombs on airplanes bound for the United States to
lone actors seeking to detonate [improvised explosive
devices] in public squares and subways intent on mass
murder.\8\
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\8\The President's Request to Extend the Service of Director
Mueller of the FBI until 2013: Hearing before the S. Comm. on the
Judiciary, 112th Cong. (June 8, 2011) (statement of Robert S. Mueller,
III, Director of the FBI, at 1).
Director Mueller also spoke of the threat posed by radical
``adversaries, like Anwar Alaqui, who are engaged in efforts to
radicalize people in the United States to commit acts of
terrorism.''\9\ In addition to terrorist threats, Director
Mueller testified to threats from organized crime, drug
cartels, fraud, and a host of others.
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\9\Id. at 1-2.
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At the same hearing, former Deputy Attorney General James
B. Comey echoed Director Mueller's assessment. Mr. Comey stated
that, ``the combination of the successful raid on Bin Laden's
compound and the approaching 10th anniversary of 9/11 creates
an unusual threat environment.''\10\
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\10\The President's Request to Extend the Service of Director
Mueller of the FBI until 2013: Hearing before the S. Comm. on the
Judiciary, 112th Cong. (June 8, 2011) (statement of James B. Comey,
former Deputy Attorney General, at 2).
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Mr. Comey also discussed the value in keeping Director
Mueller in place as Director at this particularly challenging
moment in time. He stated:
There is never a great time to change Directors.
Something is always lost in a transition, as a new
leader comes to know the threats, and understand the
capabilities of those around him. But there are bad,
and even potentially dangerous, times to change
Directors, and this is one of them.\11\
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\11\Id. at 1.
While the exact plans of al Qaeda have not been revealed,
intervening events suggest that the threat from the terrorist
group has not subsided. On June 15, 2011, the general command
of al Qaeda, announced that Sheikh Ayman al-Zawahiri would take
control of the leadership of the organization. Al-Zawahiri was
indicted in the 1998 embassy bombings in East Africa and has
called for attacks on American targets.\12\
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\12\New York Times, ``Bin Laden's No. 2, Zawahiri, Takes Control of
Al Qaeda,'' June 15, 2011.
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B. PURPOSE
1. Congressional Response to the President's Request
The Senate responded to the President's request to extend
the term of Director Mueller on May 26, 2011, by introducing a
narrowly drafted bipartisan bill, S. 1103, that would authorize
an extension of the 10-year term of the FBI Director. The bill
was cosponsored by the Chairman and Ranking Member of the
Senate Committee on the Judiciary and the Chairman and Vice
Chairman of the Senate Select Committee on Intelligence. House
Judiciary Committee Chairman Lamar Smith (R-TX) and Senate
Minority Leader Mitch McConnell (R-KY) have both publicly
expressed support for President Obama's decision to extend
Director Mueller's term for an additional two years.
Senator Grassley, the Judiciary Committee's Ranking Member,
requested a full Committee hearing on the matter on behalf of
certain members of the minority of the Judiciary Committee, and
the Chairman scheduled such a hearing on June 8, 2011.
2. The Reported Bill Does Not Represent any Intent to Affect the
President's Plenary Removal Authority
In response to some concerns voiced in that hearing,
Chairman Leahy prepared a substitute amendment that emphasized
in Findings that the bill was a direct response to the
President's request, which the Congress found to be appropriate
in light of the need for continuity and stability at the FBI in
the face of ongoing threats to the United States. The
substitute was adopted by the Judiciary Committee and reported
favorably to the Senate. The bill reported by the Judiciary
Committee does not diminish in any manner the President's
authority to remove a Director of the FBI. The bill makes clear
that the incumbent FBI Director may continue to serve only at
the request of the President. Current law and policy on that
matter will in no way be affected if S. 1103 is enacted into
law. The sitting FBI Director agrees. In the June 8, 2011,
hearing, Senator Grassley asked Director Mueller, ``As director
of the FBI with a fixed term, under what circumstances can the
president remove you?'' Director Mueller responded, ``I think I
serve at the pleasure of the president.''\13\
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\13\The President's Request to Extend the Service of Director
Mueller of the FBI until 2013: Hearing before the S. Comm. on the
Judiciary, 112th Cong. (June 8, 2011) (testimony of Robert S. Mueller,
III).
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3. The Reported Bill Represents a One-Time Exception to the Ten-Year
Statutory Term Limit
The substitute makes clear in the Findings that the
President has requested only a one-time exception to the 10-
year term limit, and that such an extension is based upon the
exceptional circumstances facing the Nation at this time. The
findings state explicitly that the bill is not intended to
create a precedent. That intent has also been stated by the
bill's sponsors. By allowing the term of the Director to be
extended this once, from 10 years to 12, the bill would have no
effect on the nature of the fixed term appointment.
4. The Reported Bill Is Not Intended to Assert Any Congressional Power
to Appoint Executive Officers
In this bill, Congress asserts no authority to appoint
officials in violation of the President's appointment
authority. The findings and the operative text of the bill both
state clearly that the extension of the Director's term is
authorized by Congress at the request of the President. The
bill also makes clear that such authorization is directly
linked to the President's request and the justifications
provided for that request. It is effective in authorizing an
extended term, but implemented as the President determines.
C. CONSTITUTIONAL CONCERNS RAISED
During the course of the Committee's consideration of this
bill, some raised concerns that the legislation could be
vulnerable to constitutional challenges and protracted
litigation. The notion that enactment of this legislation would
somehow impinge upon the authority of the President under the
Appointments Clause to choose his own nominee to be Director of
the FBI is incorrect. Given that this legislation was expressly
requested by the President in order that the President's choice
for FBI Director--Robert S. Mueller III--could continue in
office, and that it does nothing to diminish the President's
authority to remove the FBI Director at will, such concerns
lack merit.
1. Constitutional and Legal Framework
The Appointments Clause states that the President ``shall
nominate, and by and with the Advice and Consent of the Senate,
shall appoint Ambassadors, other public Ministers and Consuls,
Judges of the supreme Court and all other Officers of the
United States, whose Appointments are not herein otherwise
provided for, and which shall be established by Law.''\14\
Accordingly, the Supreme Court has held that the Appointments
Clause prohibits Congress from independently exercising the
power to appoint ``Officers of the United States.''\15\
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\14\U.S. Const., art II, Sec. 2.
\15\See Buckley v. Valeo, 424 U.S. 1, 126 (1976).
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The Appointments Clause is not offended, however, when
Congress merely acts to extend the term of service of an
executive branch officer who serves at the pleasure of the
President, particularly when Congress acts at the specific
request of the President. This basic principle has been
reaffirmed on several occasions by the Department of Justice
through legal opinions dating back six decades.\16\ In 1951,
for example, the Attorney General's office issued an opinion
affirming the constitutionality of an amendment that extended
the terms of members of the Displaced Persons Commission, which
Congress had created through statute in 1948.\17\ Writing in
response to an inquiry by the President whether the amendment
constituted ``an infringement on the President's constitutional
power of appointment,'' the opinion concluded that the
legislation presented ``no constitutional difficulties,'' and
instead was ``an example of the Congress and the Executive
acting in cooperation.''\18\ Central to this conclusion was the
fact that nothing in the legislation required the President to
continue the incumbent commissioners in office. Accordingly,
the opinion affirmed ``the power of the Congress to extend the
terms of offices which it has created, subject, of course, to
the President's constitutional power of appointment and
removal.''\19\
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\16\See Attorney General and Office of Legal Counsel opinions in
Appendix.
\17\See 41 U.S. Op. Atty. Gen. 88 (1951).
\18\Id. at 90 (internal citations omitted).
\19\Id. The opinion continued by citing several precedents of this
type of ``joint action by the Executive and the Congress.'' 41 U.S. Op.
Atty. Gen. 88, 90 (1951). These precedents included the legislative
extensions of the terms of office for five Commissioners of the Atomic
Energy Commission in 1948, as well as the 1948 extension of the terms
of office for directors of the Reconstruction Finance Corporation. Id.
at 91.
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The Office of Legal Counsel of the Department of Justice
issued a similar opinion in 1994, this time assessing the
constitutionality of a legislative extension of the terms of
members of the United States Parole Commission.\20\ In its
opinion, the Office of Legal Counsel acknowledged the potential
tension that arises when Congress extends the term of an office
and seeks to apply the extension to an incumbent
officeholder.\21\ The opinion noted that a law extending the
tenure of an officer whom the President may remove only ``for
cause'' was a ``classic example'' of legislation that runs
afoul of the Appointments Clause.\22\ Conversely, when Congress
passes legislation ``that extends the term of an office,
including its incumbent, the holder of which is removable at
will,'' the opinion noted the longstanding position of the
Office of Legal Counsel and the Department of Justice that
``there is no violation of the Appointments Clause, for here
the President remains free to remove the officer and embark on
the process of appointing a successor--the only impediment
being the constitutionally sanctioned one of Senate
confirmation.''\23\
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\20\See Constitutionality of Legislation Extending the Terms of
Office of United States Parole Commissioners, 18 U.S. Op. Off. Legal
Counsel 166 (1994).
\21\Id. at 168.
\22\Id. (emphasis added).
\23\Id. (emphasis added). The 1994 OLC opinion expressly rejected
and withdrew a prior 1987 opinion that reached a different conclusion
regarding the constitutionality of similar legislative extensions.
Citing the 1987 opinion's lack of credible reasoning and the fact that
the 1987 opinion ran counter to a long-standing OLC position, the 1994
OLC opinion deemed the 1987 opinion as ``irredeemably unpersuasive.''
18 U.S. Op. Off. Legal Counsel 166 note 3 (1994).
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This conclusion was reiterated by the Office of Legal
Counsel in a 1996 memorandum providing an overview of
constitutional separation of powers issues.\24\ In the 1996
memorandum, the Office of Legal Counsel reaffirmed the approach
taken in its 1951 opinion regarding members of the Displaced
Persons Commission, stating that ``the extension of tenure of
officers serving at will raises no Appointments Clause
problem.''\25\ Indeed, the OLC memorandum labeled as
``constitutionally harmless'' legislation that extends the term
of an officer who is subject to removal at will.\26\
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\24\See The Constitutional Separation of Powers Between the
President and Congress, 20 U.S. Op. Off. Legal Counsel 124 (1996).
\25\Id.
\26\Id. Even when dealing with legislative extensions of the
tenures of officers removable only for cause, the 1996 OLC memorandum
urged a ``functional analysis'' that assessed whether the legislation
had ``the practical effect of frustrating the President's appointing
authority or amount[ed] to a congressional appointment.'' 20 U.S. Op.
Off. Legal Counsel 124 (1996). Referencing a 1994 OLC opinion
concerning the extension of terms of members of the United States
Sentencing Commission, the 1996 OLC memorandum noted that even where a
statute extends the terms of officers removable only for cause, the
statute might still not function to violate the President's appointment
power. Id. (citing Whether Members of the Sentencing Commission Who
Were Appointed Prior to the Enactment of a Holdover Statute May
Exercise Holdover Rights Pursuant to the Statute, 18 Op. Off. Legal
Counsel 33 (1994)). Notably, the 1994 OLC opinion regarding the
Sentencing Commission noted that the effect of that legislation could
actually have been to augment the President's power by giving him ``the
option of retaining the holdover officer until he chooses to nominate a
successor.'' 18 Op. Off. Legal Counsel 33 (1994) (emphasis added).
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On June 20, 2011, the Office of Legal Counsel issued a
memorandum opinion expressly reaffirming the ``longstanding''
view that ``Congress, by extending an incumbent officer's term,
does not displace and take over the President's appointment
authority, as long as the President remains free to remove the
officer at will and make another appointment.''\27\
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\27\Constitutionality of Legislation Extending the Term of the FBI
Director, __ U.S. Op. Off. Legal Counsel __, 2-3 (June 20, 2011).
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Much of this constitutional analysis and historical
precedent has been summarized by the Congressional Research
Service (CRS) in a report titled FBI Directorship: History and
Congressional Action, included in the Appendix to this
report.\28\ The CRS report details the historical ``precedent
of not formally re-appointing an individual whose term of
office is to be extended.''\29\ In addition, the CRS report
notes that ``[c]onstitutional analysis of an extension of [an
officer's] term depends on how the extension reads and whether
the President would retain the plenary authority to remove
[that officer].''\30\ Significantly, in its review of relevant
case law and other legal authorities, CRS was apparently unable
to identify a single case, opinion, or other legal authority to
support the notion that a legislative extension such as S. 1103
might violate the Appointments Clause. On the other hand, CRS
identified the case of In re Benny, in which the United States
Court of Appeals for the Ninth Circuit concluded: ``Congress
may prospectively alter terms of office without running afoul
of the Appointments Clause,'' adding that this power to extend
terms of office ``can be implied from its power to add to the
duties that are germane to its original duties.''\31\
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\28\Congressional Research Service, FBI Directorship: History and
Congressional Action, CRS Report R41850, June 7, 2011, (hereinafter
``CRS Report'').
\29\Id., at 5-6, 11.
\30\Id., at 7.
\31\In re Benny, 812 F.2d 1133, 1141 (9th Cir. 1987). Some have
cited to Judge Norris's concurring opinion in In re Benny as support
for the argument that legislation like S. 1103 violates the
Appointments Clause. The facts of In re Benny are distinguishable from
the instant case in important respects. First, in the case of the
bankruptcy judges at issue in In re Benny, the President did not--as he
has with Director Mueller--specifically request that the judges
continue serving. Second, Judge Norris himself noted that bankruptcy
judges under the relevant statute could only be removed for
``incompetence, misconduct, neglect of duty or physical or mental
disability.'' 812 F.2d 1133, 1143 note 5. Accordingly, given that the
FBI Director is unquestionably serving the President at will, reliance
on Judge Norris's concurring opinion is misplaced.
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Taking into account the various opinions from the
Department of Justice spanning 60 years, the operative
constitutional and legal premise remains clear: ``Legislation
extending the term of an officer who serves at will does not
violate the Appointments Clause.''\32\
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\32\Constitutionality of Legislation Extending the Terms of Office
of United States Parole Commissioners, 18 U.S. Op. Off. Legal Counsel
166, 171 (1994).
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2. Constitutionality of S. 1103--No Appointments Clause Concern
The bill to extend the term of the incumbent FBI Director
by two years, S. 1103, is constitutionally sound and an example
of the type of ``joint action by the Executive and the
Congress'' deemed legitimate by the Office of Legal Counsel on
a number of prior occasions.\33\ The President has expressly
requested that Congress enact legislation enabling the
incumbent FBI Director to serve an additional two years, and
the bill does just that without impinging in any way on the
President's plenary authority to remove the FBI Director at
will. In light of the legal opinions from the Department of
Justice dating back six decades, as well as the relevant case
law, the constitutionality of the bill cannot seriously be
questioned.
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\33\See, e.g., 41 U.S. Op. Atty. Gen. 88, 90 (1951).
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As an initial matter, the bill makes clear that the
incumbent FBI Director may continue to serve only at the
request of the President, and does nothing to diminish in any
way the President's removal authority under the Constitution.
As Director Mueller himself testified at the June 8, 2011,
hearing, his service as FBI Director continues only ``at the
pleasure of the President.''\34\ That will remain true after
enactment of this legislation. The CRS Report referenced above
also concluded that ``the President may remove the Director of
the FBI at will,'' and cited the firing of FBI Director William
Sessions in July 1993 by President Clinton as an example.\35\
The Office of Legal Counsel recently reaffirmed this conclusion
unequivocally, noting that ``the FBI Director is removable at
the will of the President.''\36\
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\34\Oral testimony of Robert S. Mueller, III, June 8, 2011, Hearing
before the Senate Judiciary Committee.
\35\CRS Report at 9.
\36\Constitutionality of Legislation Extending the Term of the FBI
Director, __ U.S. Op. Off. Legal Counsel __, 3 (June 20, 2011)
(internal citation omitted).
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Perhaps most instructive on this point is the legislative
history of the statute establishing the 10-year term limit on
the FBI Director. In a 1974 committee report on the FBI
Director term limit bill pending at the time (S. 2106), the
Senate Judiciary Committee concluded: ``The bill does not place
any limit on the formal power of the President to remove the
FBI Director from office,'' and that the ``Director would be
subject to dismissal by the President, as are all purely
executive officers.''\37\ Moreover, since enactment of the 10-
year term limit on the FBI Director in 1976, there have been no
laws enacted or cases decided imposing any type of removal
restrictions on the President with regard to the FBI Director,
such that the functional analysis described in Morrison v.
Olson, would be required. Put simply, the President can decide
to replace the FBI Director at any time, for any reason.
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\37\``Ten-Year Term for the FBI Director,'' U.S. Senate Committee
on the Judiciary, S. Rep. No. 93-1213 (93rd Cong., 2nd Session), at 6.
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In light of the President's plenary authority to remove the
incumbent FBI Director, no credible argument can be made that
Congress, through this legislation, might somehow infringe upon
the President's constitutional appointment power. To the
contrary, this bill responds directly to the President's
request for legislation that would allow him to continue
exercising his appointment power; in other words, to keep as
FBI Director the individual that the President wants to serve
in that position. Common sense and a plain reading of the
relevant legal precedents demonstrates that an Appointments
Clause problem arises when Congress acts in a way that imposes
its will upon the Executive, installing or keeping in office an
individual whom the President did not choose and cannot remove.
That is not the case here. The President has chosen Director
Mueller to lead the FBI for the next two years, but the
President can also decide to remove him at any time. The
removal authority is a prerogative of the Executive, and
nothing in this bill changes that. Through enactment of S.
1103, Congress would simply provide the statutory exemption
needed for Director Mueller to continue his public service as
head of the FBI.\38\
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\38\See Constitutionality of Legislation Extending the Term of the
FBI Director, __ U.S. Op. Off. Legal Counsel __, 4 (June 20, 2011)
(``Director Mueller holds an office, and if his term is extended by
Congress, he will continue to hold that office by virtue of an
appointment by President Bush, with the advice and consent of the
Senate, in strict conformity with the requirements of the Appointments
Clause.'')
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As specifically set forth in the text of S. 1103, Congress
cannot by itself cause Director Mueller to begin another two
years as head of the FBI, just as Congress cannot in any way
guarantee that Director Mueller will remain in office for the
entire two years. Instead, Section 2(a) of S. 1103 provides
that the incumbent FBI Director may continue in office, but
only at the request of the President. Similarly, the bill
imposes no limit on the authority of the President to remove
the current incumbent FBI Director at any time. Thus, while
Congress may provide the statutory mechanism that allows
Director Mueller to continue serving past August 3, 2011, his
continued service is contingent upon a request by the
President, as well as his prerogative to choose a successor at
any time. As such, the provisions of this bill do not in any
way usurp the President's appointing authority.\39\
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\39\The testimony of Professor John Harrison fails to account for
these facts or considerations, nor does Professor Harrison
affirmatively cite a single authority supporting his views. The
President's Request to Extend the Service of Director Mueller of the
FBI until 2013: Hearing before the S. Comm. on the Judiciary, 112th
Cong. (June 8, 2011) (statement of John Harrison, Professor of Law,
University of Virginia). Indeed, the June 20, 2011 memorandum opinion
by the Office of Legal Counsel specifically addresses and rejects the
arguments made by Professor Harrison. See Constitutionality of
Legislation Extending the Term of the FBI Director, __ U.S. Op. Off.
Legal Counsel __, 4-6 (June 20, 2011).
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3. Unfounded Fears of Litigation
Without citation to a single court opinion that has found
legislation similar to S. 1103 to be of any constitutional
concern, opponents of the bill argue that enactment of the bill
would give rise to a spate of litigation that could mire the
FBI in protracted lawsuits and cast uncertainty on the
legitimacy of the FBI Director's actions during his extended
term. These concerns are unfounded.
Congress should not pursue legislation that would unduly
hamper the law enforcement, counterterrorism, and intelligence
functions of the FBI. During the June 8, 2011 hearing, however,
when Director Mueller was asked by Senator Coburn to comment on
the possible risk of constitutional challenges as a result of
this bill, he responded as follows:
I have heard nothing in my discussions with the
Department [of Justice] or otherwise of a
constitutional issue that would make that a problem
down the road. If that were a substantial problem,
quite obviously, then I would be concerned. But I have
not heard that to be the case.\40\
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\40\The President's Request to Extend the Service of Director
Mueller of the FBI until 2013: Hearing before the S. Comm. on the
Judiciary, 112th Cong. (June 8, 2011) (testimony of Robert S. Mueller,
III).
Aside from speculation based on unfounded constitutional
arguments, there has been nothing presented to the Committee
that would suggest any operational concerns with the bill. The
FBI has presented no operational concerns.
The lack of any real litigation risk is underscored by the
fact that the Director of the FBI has only limited direct
involvement with the routine investigatory and surveillance
functions of the Bureau. Those functions are typically carried
out by Special Agents who perform their duties in their own
capacity as duly sworn law enforcement agents with arrest
authority. Accordingly, the risk of litigation from defendants
in criminal cases and targets of national security
investigations is virtually nonexistent, given that the
Director is not typically the affiant on search warrants,
wiretap applications, or criminal complaints, nor does he
typically provide supervisory authorization for routine
investigatory techniques. Similarly, unlike Federal prosecutors
in the U.S. Attorney's Offices or elsewhere in the Department
of Justice, the FBI Director does not have any direct
involvement with the prosecution of defendants. Thus, concerns
about possible litigation and the effect on the ability of the
FBI to function are purely speculative and unfounded.
II. History of the Bill and Committee Consideration
A. INTRODUCTION OF THE BILL
A bill to extend the term of the incumbent Director of the
Federal Bureau of Investigation, S. 1103, was introduced on May
26, 2011, by Chairman Leahy, Senator Grassley, Senator
Feinstein, and Senator Chambliss.
B. HEARING
On June 8, 2011, the Committee convened a hearing titled
``The President's Request to Extend the Service of Director
Mueller of the FBI until 2013.'' Director Mueller testified on
the first panel, describing threats to the United States and
his efforts over the past 10 years to reform the FBI.
A second panel of witnesses included James B. Comey, former
Deputy Attorney General, now with Bridgewater Associates, who
spoke of the need for continuity of leadership at the FBI in
light of the continuing threats facing the United States. Mr.
Comey also praised Director Mueller's leadership of the agency
and his achievements in transforming the FBI from a domestic
criminal investigative agency into one that is equally devoted
to intelligence and the prevention of terrorist attacks.
The second panel also included testimony from William Van
Alstyne, Lee Professor of Law at the Marshall-Wythe Law School,
who stated that the bill, S. 1103, is ``clearly
constitutionally sufficient.''\41\ Finally, the Committee heard
testimony from John C. Harrison, Professor of Law, at the
University of Virginia.
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\41\The President's Request to Extend the Service of Director
Mueller of the FBI until 2013: Hearing before the S. Comm. on the
Judiciary, 112th Cong. (June 8, 2011) (statement of William Van
Alstyne, Lee Professor of Law, Marshall-Wythe Law School, at 1).
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C. LETTERS OF SUPPORT
The Committee received letters in support of the extension
of Director Mueller's term from the National Fraternal Order of
Police, the National Association of Police Organizations, and
the International Association of Chiefs of Police. See
Appendix.
D. EXECUTIVE BUSINESS MEETING
The bill, S. 1103, was placed on the agenda for an
Executive Business Meeting on June 9, 2011, but was held over
for one week. It was considered by the Committee on June 16,
2011.
Chairman Leahy offered a substitute amendment to S. 1103,
which contained findings and an extension of the incumbent
Director's term from 10 years to 12 years. The amendment was
accepted.
Senator Coburn offered a substitute amendment that would
have authorized an extension of two years of the 10-year term,
but would have required the Director to be nominated to serve
the additional two years. The Coburn amendment was cosponsored
by Senators Hatch, Graham, Cornyn, and Lee.
After debate, Chairman Leahy moved to table the Coburn
amendment. The motion to table was accepted by a rollcall vote.
The vote record is as follows:
Tally: 11 Yeas, 7 Nays
Yeas (11): Kohl (D-WI), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
MN), Coons (D-DE), Blumenthal (D-CT), Grassley (R-IA), Leahy
(D-VT).
Nays (7): Hatch (R-UT), Kyl (R-AZ), Sessions (R-AL), Graham (R-
SC), Cornyn (R-TX), Lee (R-UT), Coburn (R-OK).
The Committee then voted to report favorably S. 1103. The
vote record is as follows:
Tally: 11 Yeas, 7 Nays
Yeas (11): Kohl (D-WI), Feinstein (D-CA), Schumer (D-NY),
Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-MN), Franken (D-
MN), Coons (D-DE), Blumenthal (D-CT), Grassley (R-IA), Leahy
(D-VT).
Nays (7): Hatch (R-UT), Kyl (R-AZ), Sessions (R-AL), Graham (R-
SC), Cornyn (R-TX), Lee (R-UT), Coburn (R-OK).
III. Section-by-Section Summary of the Bill
Section 1. Findings
This section finds that the President requested that
Congress extend the term of the FBI Director to maintain
continuity of leadership at the FBI during a time of
extraordinary threat to the United States. This section also
finds that Congress intends the extension to be a one-time
exception to the 10-year statutory limit on the term of his
position.
Section 2. Extension of the Term of the Incumbent Director of the
Federal Bureau of Investigation
This section modifies the Omnibus Crime Control and Safe
Streets Act of 1968 (28 U.S.C. 532 note) to allow a one-time
statutory extension of the 10-year term of the current Director
of the FBI at the date of enactment at the request of the
President. The change would allow the incumbent Director of the
FBI to serve an additional two years until August 3, 2013.
IV. Congressional Budget Office Cost Estimate
The Committee sets forth, with respect to the bill, S.
1103, the following estimate and comparison prepared by the
Director of the Congressional Budget Office under section 402
of the Congressional Budget Act of 1974:
June 17, 2011.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1103, a bill to
extend the term of the incumbent Director of the Federal Bureau
of Investigation.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
S. 1103--A bill to extend the term of the incumbent Director of the
Federal Bureau of Investigation
S. 1103 would extend the term of the current director of
the Federal Bureau of Investigation by two years. Under current
law, the term of the director will expire in August. CBO
estimates that implementing this bill would have no significant
cost to the federal government. Enacting S. 1103 would not
affect direct spending or revenues; therefore, pay-as-you-go
procedures do not apply.
S. 1103 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Mark Grabowicz.
The estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
V. Regulatory Impact Statement
In compliance with rule XXVI of the Standing Rules of the
Senate, the Committee finds that under S. 1103, as reported, no
substantial regulatory impact will be incurred by implementing
the provisions of this legislation.
VI. Conclusion
A bill to extend the term of the incumbent Director of the
Federal Bureau of Investigation, S. 1103, was reported
favorably to the Senate from the Committee on the Judiciary.
The bill provides, at the request of the President, a one-time
exception to the statutory limit on the 10-year term of the FBI
Director. The bill will allow the incumbent Director to serve
an additional two years, until 2013, and is not intended to
create a precedent. Because of leadership transitions of
critical national security positions at Federal agencies and
the need for stability and continuity at the FBI, the Committee
recommends swift action on S. 1103 as reported.
VII. Changes to Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S. 1103, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
UNITED STATES CODE
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
* * * * * * *
PART II--DEPARTMENT OF JUSTICE
* * * * * * *
SECTION 532. DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION.
The Attorney General may appoint a Director of the Federal
Bureau of Investigation. The Director of the Federal Bureau of
Investigation is the head of the Federal Bureau of
Investigation.
Note:
Confirmation and Compensation of Director; Term of Service
(a) Effective as of the day following the date on which the
present incumbent in the office of Director ceases to serve as
such, the Director of the Federal Bureau of Investigation shall
be appointed by the President, by and with the advice and
consent of the Senate, and shall receive compensation at the
rate prescribed for level II of the Federal Executive Salary
Schedule [section 5313 of Title 5, Government Organization and
Employees].
(b) Effective with respect to any individual appointment by
the President, by and with the advice and consent of the
Senate, after June 1, 1973, the term of service of the Director
of the Federal Bureau of Investigation shall be ten years. A
Director may not serve more than one ten-year term. The
provisions of subsections (a) through (c) of section 8335 of
title 5, United States Code [section 8335(a) through (c) of
Title 5], shall apply to any individual appointed under this
section.
(c) With respect to the individual who is the incumbent in
the office of the Director of the Federal Bureau of
Investigation on the date of enactment of this subsection,
subsection (b) shall be applied--
(1) in the first sentence, by substituting ``12
years'' for ``ten years''; and
(2) in the second sentence, by substituting ``12-year
term'' for ``ten-year term''.