Judges may appoint prosecutor to succeed Mckay

With the appointment of interim U.S. Attorney Jeffrey Sullivan about to end, federal judges in Seattle and Tacoma are preparing to name a new U.S. attorney for Western Washington for what may be the first time.

Sullivan was named acting U.S. attorney shortly after the Justice Department's controversial firing of John McKay in December. His appointment will end Oct. 12, along with those of 11 other interim U.S. attorneys, because of legislation passed this spring, according to the Justice Department.

If the White House does not nominate a permanent replacement for McKay, the U.S. District Court in Seattle can name a new interim federal prosecutor. The decision would fall to the court's chief judge, Robert Lasnik, a Clinton appointee who has been preparing to fill the vacancy.

The potential prosecutorial gap was created when the Justice Department abruptly fired eight U.S. attorneys, including McKay.

The move thrust McKay into an ongoing legal battle between Congress and the White House, which in turn has led to several departures at Justice, including that of Attorney General Alberto Gonzales. Lasnik has criticized the Justice Department's treatment of McKay.

As the firing controversy began to percolate in Congress in January, members of the Senate Judiciary Committee realized that under a little-noticed provision of the renewed Patriot Act, passed in 2006, the White House and Justice Department could circumvent the standing Senate confirmation process when appointing a new U.S. attorney and keep an interim prosecutor on the job indefinitely.

In March, Senate Democrats and Republicans passed a bill by a 94-2 vote that limits the term of interim U.S. attorneys to 120 days. The bill was approved by the House and then signed by the president June 14, and the clock began ticking.

If the White House does not name a nominee by mid-October, the local federal court's chief judge can appoint a new interim prosecutor, or reappoint the current one to serve until the president proposes someone. Lasnik said his law clerks have been reviewing federal law and he has consulted with other chief district court judges in the Ninth Circuit to see how they're handling the replacement of their U.S. attorneys. Lasnik said he is ready to make the choice.

"I understand the law," he said.

Lasnik said he believes this is the first time that judges in the Western District of Washington have been left to make the decision. He said he will meet with other local federal judges in the coming week and they will announce their choice by Oct. 4.

"Obviously, we know we have an interim United States attorney who was very highly recommended," Lasnik said, referring to Sullivan. "We have an interim U.S. attorney that is highly regarded and known to the court and is the likely person for the court to select."

U.S. Rep. Dave Reichert, R-Auburn, submitted to the White House in March the names of three people, including Sullivan and former congressman Rick White, a Republican, to succeed McKay. But the president did not forward any of the names to the Senate.

Asked to comment Thursday, the White House said through a spokesman: "We cannot confirm, deny or speculate on personnel decisions."

Mike Shields, Reichert's chief of staff, said, "We have not been contacted by the White House." He said Reichert is concerned about the upcoming termination date.

U.S. attorneys' positions aren't usually vacant this long. Typically, White House officials use a U.S. attorney slot to showcase a politician they are grooming for higher office or to promote specific legal policies.

Alicia Mundy: 202-662-7457 or amundy@seattletimes.com

Information in this story published on September 23, 2007 was corrected on October 3, 2007. The story incorrectly identified Judge Robert Lasnik as the senior judge for the U.S. District Court in Western Washington. Lasnik is the chief judge.