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Buried deep within the bill that renewed portions of the USA Patriot Act last month is a provision that strips federal judges of the power to select interim U.S. attorneys. Previously, when a U.S. attorney vacancy occurred, the Justice Department had the power to name an interim U.S. attorney for a term of 120 days. After that, if a permanent replacement was not selected by the White House and approved by the Senate, the federal court in each district had the power to pick an interim. Typically, federal judges deferred to the Justice Department and simply reappointed the DOJ’s choice. But on occasion, to the chagrin of the White House, judges have opted to exercise their right. The most recent instance occurred this winter, when Judge Lawrence Piersol of the U.S. District Court for South Dakota refused to reappoint interim U.S. Attorney Michelle Tapken just days before her 120-day term was due to expire. Piersol, a Clinton nominee who, according to the Sioux Falls Argus Leader, once counted former Senate Democratic leader Tom Daschle as one of his clients in private practice, indicated he’d tap the state’s former attorney general (a moderate Republican) for the interim spot instead. The move drew the ire of both Republican Sen. John Thune (who defeated Daschle in 2004) and the Justice Department. Within days the White House ended the dispute by quickly naming a permanent replacement in Steven Mullins, an Oklahoman, through the back door of a recess appointment. A spokesman for Thune said the senator had nothing to do with crafting the provision, and called its passage so soon after the South Dakota dispute “100 percent coincidental.”
Jason McLure can be contacted at [email protected].

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