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Residency Clause Adds Fuel To Dispute Over U.S. Attorneys
One Prosecutor Gets an Exemption, Another Gets Fired

By Dan Eggen
Washington Post Staff Writer
Wednesday, May 2, 2007

On Nov. 10, 2005, Attorney General Alberto R. Gonzales sent a letter to a federal judge in Montana, assuring him that the U.S. attorney there, William W. Mercer, was not violating federal law by spending most of his time in Washington as a senior Justice Department official.

That same day, Mercer had a GOP Senate staffer insert into a bill a provision that would change the rules so that federal prosecutors could live outside their districts to serve in other jobs, according to documents and interviews

Congress passed the provision several months later as part of the USA Patriot Act reauthorization bill, retroactively benefiting Mercer and a handful of other senior Justice officials who pull double duty as U.S. attorneys and headquarters officials. Justice officials say the measure was a necessary clarification to ensure that prosecutors could fill temporary postings in Washington, Iraq and elsewhere, and that it also applies to assistant U.S. attorneys.

But the episode, which received little notice at the time, provides another example in which Gonzales's statements appear to conflict with simultaneous actions by his aides in connection with U.S. attorney policies. Lawmakers investigating the department's handling of the dismissal of eight U.S. attorneys have repeatedly accused Gonzales of being less than truthful about the roles played by himself and the White House.

The measure also provides the second example in which the Justice Department sought to use the renewal of the Patriot Act antiterrorism law to assert tighter control over U.S. attorneys. Another provision sought by the Justice Department allowed Gonzales to appoint U.S. attorneys indefinitely without Senate input. Since repealed, it was central to the uproar over the prosecutor dismissals.

At issue in the dispute over Mercer were residency requirements for U.S. attorneys. Mercer has been largely absent from Montana while working as a senior aide to Gonzales for the past two years, a situation that has drawn the ire of U.S. District Chief Judge Donald W. Molloy of Billings.

Molloy wrote to Gonzales on Oct. 20, 2005, that Mercer was violating federal law because he "no longer resides in Montana" and was living with his family in the Washington area.

Three weeks later, on Nov. 10, Gonzales responded to Molloy that Mercer "is in compliance with the residency requirement" under federal law because he "is domiciled there, returns there on a regular basis, and will live there full-time as soon as his temporary assignment is completed."

On the same day back in Washington, the new legislation was added to the Patriot bill at the request of Mercer, who had been assigned the task of shepherding the provision through Congress, according to congressional aides and new statements from one of Mercer's colleagues.

William E. Moschella, the principal associate deputy attorney general, also told House and Senate investigators last week that the residency provision was of particular interest to Mercer because of his dispute with Molloy, according to a congressional aide. Moschella said he believed other Justice officials were aware of the effort to get the provision passed, but did not identify them, the aide said.

Mercer made his request to Brett Tolman, who was counsel to Sen. Arlen Specter (R-Pa.), then chairman of the Senate Judiciary Committee. A spokeswoman for Tolman, now the U.S. attorney in Utah, declined to comment yesterday.

Specter's office suggested the measure was unremarkable.

"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.

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