Residency Clause Adds Fuel To Dispute Over U.S. Attorneys

"The provision was included in the conference report at the request of the Justice Department," said Scott Hoeflich, a Specter spokesman. "It was shared with staffers on both sides of the aisle. It was included as a stand-alone provision in a draft of the conference report circulated on November 10, 2005, and appeared in every subsequent draft."

Justice spokesman Brian Roehrkasse declined to comment on Mercer's role in securing the legislation or on whether Gonzales was aware of it at the time he wrote to Molloy.

Roehrkasse said the legislation "recognized a longstanding DOJ practice" of allowing prosecutors to serve in temporary postings. Thirty-five federal prosecutors have taken dual appointments under the provision in the last 10 months, he said.

"This amendment clarifies that the statutory residency requirement does not preclude department personnel from working in two places if authorized by an order from the attorney general," Roehrkasse said in a statement.

Under the provision, Gonzales or his designee can exempt federal prosecutors from residency requirements so they can take on "dual or additional responsibilities." Without such a waiver, federal law requires that a U.S. attorney "shall reside in the district for which he is appointed."

The new provision was retroactive to February 2005, several months before Mercer began working at Justice headquarters.

Mercer currently serves as the acting associate attorney general and has been nominated for appointment to the job permanently. He spends only about three days a month in Montana as U.S. attorney, according to congressional testimony, and is among about a half-dozen U.S. attorneys who currently work in senior jobs in Washington.

The practice has come under scrutiny in Congress because of claims by the Justice Department that it fired New Mexico prosecutor David C. Iglesias in part because he was absent from the job too much. Iglesias, who is a Naval Reserve officer, has filed a complaint with the Office of Special Counsel alleging that the firing was, among other things, a violation of federal laws prohibiting discrimination against military personnel.

"It's a curious contrast that leaders in the Department of Justice would slip a change into law to allow one U.S. Attorney to spend only a few days a month in his district and keep his job, while at the same time claiming to fire another for spending a few days a month away from his district to serve his country," Sen. Patrick J. Leahy (D-Vt.) said in a statement.