Christmas will be a little less merry than expected for Associate Attorney General Stephen S. Trott. The Justice Department's third-ranking official must wait until next year for what he thought would be his present: a federal judgeship.
The Senate Judiciary Committee voted Dec. 3 to confirm Trott as a member of the 9th U.S. Circuit Court of Appeals in San Francisco. But Senate approval has been snarled in a dispute between the committee and the Justice Department about access to department documents.
The department has refused to turn over the internal staff report recommending that an independent counsel be appointed to investigate Faith Ryan Whittlesey, U.S. ambassador to Switzerland.
Attorney General Edwin Meese III decided last year not to seek an independent counsel to look into whether Whittlesey improperly assisted major donors to her $80,000 embassy fund. Trott did not participate in that matter.
As a result of Justice's refusal to turn over the Whittlesey report, sought by the panel since March, at least two committee members -- Edward M. Kennedy (D-Mass.) and Howard M. Metzenbaum (D-Ohio) -- have blocked a vote on Trott's confirmation. Their delay on floor action on the nomination forestalled action before the Senate recessed yesterday until late next month.
Each side accuses the other of being the Grinch.
"We're very disappointed, but we don't think there is any nexus between Steve Trott and the documents they've requested," Assistant Attorney General John R. Bolton said.
"When a senator puts a hold on a nominee for reasons having to do with a nominee himself, that may be reasonable," he said. "It's not reasonable when a senator puts a hold on it for reasons not having to do with the nominee."
Bolton said that, because of concern for the confidentiality about officials covered by the act, the department does not divulge the contents of independent-counsel documents outside the department. In addition, he said, there is a "substantial argument" that the Judiciary Committee does not have jurisdiction over independent-counsel matters.
Senate aides defended their request and cast the blame the other way.
"This nominee is the third-ranking official in the Justice Department," an aide to one committee member said. "It is ludicrous to suggest that he bears no responsibility for the department's failure to comply with the committee's reasonable request for documents."
Without access to the internal report on whether an independent counsel should be appointed, another aide said, "there's no way to do any kind of meaningful oversight of how the independent-counsel statute has been implemented."
Committee sources said that the department offered to provide a summary of the document but that they need to see the report itself. "At the moment, I think it's fair to say that's unacceptable," one committee source said.
That leaves Trott waiting to see which side will blink. "No one has yet said to me anything like the nomination is in trouble," Bolton said. "With a month's cooling-off, it may well be that we'll find a way to resolve it."