In an overwhelmingly bi-partisan vote (94-2-4), the Senate approved a Sen. Feinstein (D-CA) sponsored measure to "preserve the independence of United States attorneys."

The bill, S 214, re-instates the 1986 Congressionally approved process for filling a vacant US attorney position. Under that process, the Administration -- in the guise of the Attorney General -- appointed an interim US Attorney. If the Senate did not approve the nomination within 120 days, then the district judge could appoint a replacement until the President got a nominee through the Senate.

This procedure was changed last year by inserting new language into the Patriot Act reauthorization bill during conference committee. Reportedly, the Senate Judiciary Committee (then chaired by Sen. Specter, R-PA) did so at the request of the Department of Justice. According to Sen. Leahy (D-VT, then the ranking minority member of the committee), "Democratic conferees were excluded from key negotiations and the conference failed to meet to consider and vote on amendments."

Note: Specter claims that his staff made this change without consulting him. If, indeed, this happened -- that's another story that bears investigation. Staffers should not have the authority to be principal authors of legislation!

The bi-partisan nature of the Senate vote should have given the President pause before he publicly addressed the issue late on Tuesday. Instead, he came out with guns blazing (so to speak) in his comment on the firing scandal and his insistence that executive privilege extends to political advisers. In this path, he trails both Nixon and Clinton. For the record, neither forerunner was successful in pursuing this evasive technique.

It's South Dakota's Fault
Specter said in February that the DOJ requested the change because of a problem replacing a US Attorney in South Dakota. So what's the story there?

Reportedly, Bush appointed James McMahon to the job of US Attorney for South Dakota after the 2000 election; McMahon then resigned at the end of January 2005. Note that in November 2004, Bush had appointed Alberto Gonzales as Attorney General.

The process for filling a vacancy, in 2005, was the one that had worked since 1986. District Judge appoints an interim attorney, giving the White House time to find a permanent replacement. But the 120-day rule is in force -- that's as long as an interim attorney can serve.

In the second half of 2005, Michelle Tapken -- then the first assistant attorney -- became the interim US Attorney for South Dakota. (It's not clear what happened from February to September.) She was "nominated" for the position by Sen. John Thune (R-SD). The clock ran down on her 120-day appointment in December, meaning that the White House had done little or nothing to find a permanent replacement for most of the year.

The Department of Justice asked US District Judge Larry Piersol to re-appoint Tapken. Instead, on 20 December, he appointed Mark Meierhenry, former South Dakota attorney general. Piersol was operating under the letter of the federal statute governing interim appointments.

Despite the lack of federal authority, on 22 December the Department of Justice appointed Steven Mullins, then the assistant US Attorney for the western district of Oklahoma, as the South Dakota interim attorney.

According to U.S. District Judge Karen Schreier, I'm not blowing smoke on the process and who had the authority to act: she told the Rapid City Journal in January 2006 that federal law "gave Piersol the authority to make that appointment until a presidential nomination was made and confirmed by the Senate."

But Bush made the appointment as Congress recessed for Christmas -- turning it into another of his infamous recess appointments.

In February 2006, Deputy Attorney General McNulty complained to Congress that Meierhenry had not undergone a federal background check -- so Justice would not be able to talk to him about "classified" information. My question to McNulty -- just how often do US Attorneys deal with "classified" information?

Frankly, I'm getting a little tired of the mantle of national security being wrapped around every Bush Administration action.

Just how often would a South Dakota US Attorney be dealing with terrorists? How often would any US Attorney? What other "top secret" information might DOJ want to share with a South Dakota US Attorney? Harrumph. Here's the job description:

[E]ach United States Attorney, within his/her district, has the responsibility and authority to: (a) prosecute for all offenses against the United States; (b) prosecute or defend, for the government, all civil actions, suits, or proceedings in which the United States is concerned; (c) appear on behalf of the defendants in all civil actions, suits or proceedings pending in the district against collectors, or other officers of the revenue or customs for any act done by them or for the recovery of any money exacted by or paid to such officers, and by them paid into the Treasury; (d) institute and prosecute proceedings for the collection of fines, penalties, and forfeitures incurred for violation of any revenue law unless satisfied upon investigation that justice does not require such proceedings...

Apparently the dust-up got DOJ moving. On 18 May -- at least 15 months after McMahon resigned -- Bush nominated the current US Attorney for South Dakota, Marty Jackley.

There. Feel better about why language had to be slipped into a bill under the cover of conference?

The Vote
Voting "no": Bond (R-MO) and Hagel (R-NE)
Not voting: Biden (D-DE), Johnson (D-SD), McCain (R-AZ), Mikulski (D-MD)

See

• But Clinton Did It! (Oops! So Did Reagan)
• AttorneyGate Timeline
• Patriot Act Changed The Rules on US Attorney Appointments
• How Congress Changed The Rules On US Attorney Appointments
• Text of SB 214 - Preserving United States Attorney Independence Act of 2007 (Reported in Senate)
• The Strong-Arm Ideology & Philosophy of Alberto Gonzales, US Liberals
• Dump Alberto Gonzales, and Let the Healing Commence, US Liberals
• Why Gonzales Must Resign, Civil Liberties