Letter to Gene Dodaro, Acting Comptroller General of the Government Accountability Office, Re: Legal Opinion on Bradbury's Status

Letter

Durbin, Kennedy, Feingold Seek Legal Opinion on Bradbury's Status

Late last night, Senators Durbin, Kennedy, and Feingold sent a letter to the Comptroller General of the United States seeking an official determination as to the legality of Steven Bradbury's continued service as acting head of the Justice Department's Office of Legal Counsel (OLC).

Pursuant to the Vacancies Reform Act, the Comptroller General (who heads GAO) has the authority to make a formal determination as to whether an executive branch official is in violation of that law.

Bradbury's service as acting head of OLC expired nearly a year ago, on April 26, 2007. Yet Bradbury has continued to lead that office under a change of title, which appears to be nothing less than an end run around the Senate confirmation process.

Bradbury has played a key role in authorizing some of the Bush Administration's most controversial policies, such as torture techniques that are inconsistent with American values and law, and warrantless surveillance of innocent Americans.

The Durbin-Kennedy-Feingold letter appears below:

April 16, 2008

The Honorable Gene L. Dodaro
Acting Comptroller General of the United States U.S. Government Accountability Office
441 G Street, NW
Washington, DC 20548

Dear Mr. Dodaro:

We write seeking your determination as to whether the service of Steven G. Bradbury at the Department of Justice, as the effective head of the Office of Legal Counsel ("OLC"), is in violation of the Federal Vacancies Reform Act of 1998 ("Vacancies Reform Act"). OLC is a powerful office within the Department of Justice with primary responsibility for assisting the Attorney General in providing legal advice to the President.

Pursuant to 5 U.S.C. 3349, the Comptroller General of the United States has the authority to make a formal determination as to whether an executive branch official is in violation of the Vacancies Reform Act, which permits such officials to serve on an acting basis for only a temporary period of time. If you find that such a violation has occurred, you are empowered to report the violation to relevant congressional committees, the President, and the Office of Personnel Management.

In June 2005, Mr. Bradbury was nominated by the President to be the Assistant Attorney General for OLC. His nomination was returned by the Senate in December 2005. He was nominated for a second time in January 2006 and returned by the Senate in September 2006. He was nominated for a third time in November 2006 and returned by the Senate the following month. He was nominated for a fourth time in January 2007 and returned by the Senate at the end of that year. And he was nominated for a fifth time in January 2008; his nomination is pending.

Mr. Bradbury was appointed to be the Acting Assistant Attorney General of OLC in or about June 2005. The Vacancies Reform Act permits an official to serve in an acting capacity throughout the pendency of a first or second nomination, but "for no more than 210 days after the second nomination is rejected, withdrawn, or returned." 5 U.S.C. 3346(b). Mr. Bradbury's second nomination was returned on September 29, 2006, so his 210-day stint as Acting Assistant Attorney General expired on or about April 26, 2007.

Since that time, Mr. Bradbury has continued to perform the same duties and functions he had previously been performing - albeit with a different title: "Principal Deputy Assistant Attorney General." This appears to be an end run around and violation of the Vacancies Reform Act, which does not permit an official to continue leading an office after the 210-day period has expired.

Mr. Bradbury has done exactly that. Just because the Justice Department has changed Mr. Bradbury's business cards and letterhead to say "Principal Deputy Assistant Attorney General" rather than "Acting Assistant Attorney General" does not change the fact that he has continued to serve as the top official at OLC long after the Vacancies Reform Act required his departure in April 2007. The Justice Department's scheme is analogous to trying to get out of a parking ticket by repainting the car.

The Justice Department has publicly acknowledged Mr. Bradbury's continued service as head of OLC. When Attorney General Mukasey testified before the Senate Judiciary Committee in January 2008, he stated that Mr. Bradbury was the "principal person" serving in OLC. In addition, Attorney General Mukasey made no effort to correct the record when Senator Specter, at this same hearing, referred to Mr. Bradbury as "Acting Assistant Attorney General Steve Bradbury."

In letters to us dated July 20, 2007, the Justice Department took the position that Mr. Bradbury is not in violation of the Vacancies Reform Act because after a person's term as an acting official expires, "someone inevitably will be the highest-ranking employee in the office, and nothing in the Vacancies Reform Act forbids that person from performing the duties of his own position."

The Justice Department's interpretation of the Vacancies Reform Act would render the law a dead letter. That law specifies the precise length of time in which an official can serve in an acting capacity, and it can be readily inferred that Congress did not intend for that same official to be permitted to continue to perform the duties and functions of that office after the expiration of their term.

Pursuant to your authority under the Vacancies Reform Act, please advise us at your earliest convenience whether or not you believe Mr. Bradbury's continued service as the leader of OLC constitutes a violation of the law. If you determine that there is such a violation, please also indicate whether Mr. Bradbury has additionally violated the Vacancies Reform Act by performing non-delegable duties and functions.

Sincerely,
Sen. Richard J. Durbin
Sen. Edward M. Kennedy
Sen. Russell D. Feingold

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