Don't Blame South Dakota!

It's special "edge of the prairie" week here in at Liberal Desert, as my new-found friends from the Mount Rushmore State (formerly the Other Sunshine State) explained the real scoop to me. In typical small state/small town fashion, everybody was willing to talk, nobody was willing to talk on the record. And I'm now the proud owner of more South Dakota trivia than I ever thought possible.

Imagine if Mesa, Chandler, and Gilbert got 2 U.S. Senators and a Representative, plus all the usual state and local positions as well. The former AG's wife is a Supreme Court justice; everybody's connected to everybody else. Kind of like my extended family, actually. My suggested headline was above, but the editor went all Conan Doyle on me, plus ran a picture of Marty Jackley. He probably never expected to be famous in Arizona (unless what's going on is that somebody at The Tribune is related to him.)

It turns out that the potential investigation of Tapken's son involved a federally-insured bank, with a politically-connected board of directors, loaning money to the Thune friend's auto dealership -- potential bank fraud. What is it with GOP politicians and bank fraud? My source says that Judge Piersol didn't want to reappoint Tapken with the bank fraud investigation in the background, because he feared that if he reappointed her and the investigation blew up, the Bush Justice Department would wash its hands of their appointee and say that appointing her was all the judge's idea. My, that someone would think that the Bushies wouldn't show loyalty to their people. Such an imagination, eh Paul Charlton?

The other interesting thing is that the Senate GOP caucus has apparently decided that Jon Kyl will spend the next 2-4 years being their primary hack; he'll take the maximum GOP position on everything. Even when the White House throws in the towel on interim appointments of US Attorneys, it'll be Kyl who tries to hold the maximum line and keep the Patriot Act provision, to the greatest extent possible, intact. Of course, if the White House were in Democratic hands, he'd be leading the charge to repeal it. That's moderation for you!

THE CURIOUS CASE OF LANDING A U.S. ATTORNEY FOR SOUTH DAKOTA
East Valley Tribune, Mar. 11, 2007

Wonder why the Bush administration wanted to change the decades-old process for appointing U.S. Attorneys by stuffing something into the Patriot Act? Wonder why Republicans, like Sen. Jon Kyl, R-Ariz., won’t agree just to repeal it?

Curious? I was. Republicans are justifying the need for changing the statute because of the "fiasco" in appointing South Dakota’s current U.S. Attorney.

According to the administration’s story, with an interim appointment about to expire, the Justice Department asked Judge Lawrence Piersol, the chief federal district judge, to reappoint the same person for another term. Instead, Piersol appointed someone who, according to Sen. Kyl’s press secretary, "did not have any federal prosecutorial experience, had not undergone a background check, and did not have the necessary security clearances." The Justice Department then appointed another candidate, who was sworn in by "a federal judge."

Meanwhile, Piersol appointed his guy. South Dakota had two different U.S. Attorneys, and criminal prosecutions could have been jeopardized. Accordingly, says Kyl’s aide, "the President was forced to resolve the situation by firing the district judge’s U.S. Attorney. The matter was not completely resolved until another U.S. Attorney was confirmed by the Senate the next year."

Those specific assertions are basically correct -- but, naturally, the real story is quite different. The administration’s edited version sounds like a travesty, an out-of-control Clinton appointee with ties to former Sen. Tom Daschle, making an executive appointment. Outrageous! Unconstitutional!

Ignore the judges-appointing-prosecutors complaint; none of these folks fretted about judges appointing Kenneth Starr to hound Bill Clinton, so it's not like we're dealing with actual principles here.

Our story actually begins in 2001. With each presidential election, all U.S. Attorneys resign so the new administration can appoint its own. While a presidential appointment, in practice the senior member of the president’s party in the state’s congressional delegation chooses who gets the job.

Sen. John Thune, R-S.D., then a congressman and the lone Republican in the delegation, recommended a state prosecutor, Scott Abdallah. B ut before Senate consideration, Abdallah suddenly withdrew. Instead, James McMahon got the job. McMahon served admirably, but after four years, he’d had enough. In late 2004, after Thune defeated Daschle, McMahon announced his resignation.

Thune then recommended Michelle Tapken, who got an interim appointment in 2005. However, she withdrew from permanent consideration because of her son’s involvement in a failing business owned by Thune’s close friend that might have required a federal investigation. Just before her term ended in December, Justice asked Judge Piersol to reappoint her, but on Dec. 20, he instead chose Mark Meierhenry, a Republican and a former two-term state Attorney General. (He’s the guy with no "federal" prosecutorial experience, but as AG, Meierhenry actually did represent the state in federal criminal proceedings.)

Maybe Piersol thought Tapken’s conflict disqualifying her from a permanent appointment also disqualified her from another interim one. Or maybe he wanted to embarrass Thune into finally nominating somebody permanent.

Justice, aghast, appointed Steven Mullins, assistant U.S. Attorney for western Oklahoma. A federal judge -- in Oklahoma -- administered the oath on Dec. 22, and Mullins moved to South Dakota. Meierhenry’s a Republican, but he’s a moderate, which presumably disqualified him. Still, he quaintly was actually from South Dakota, and didn’t need importation from Oklahoma.

On Dec. 22, the Senate adjourned for the year, so President Bush could make a recess appointment, which he did of Mullins. Any confusion over the real U.S. Attorney got resolved by January, after lawyers concluded that the president’s subsequent recess appointment trumped the judge’s interim one. Finally, Thune named his candidate, Marty Jackley, whom Bush nominated on May 18, 2006; the Senate confirmed him two months later, and he’s doing just fine.

So today in South Dakota, the sun still rises in the east and federal law is enforced without fear, favor, or judicial appointments. But the story isn’t just an out-of-control judge and a bad statute; there’s also a senator who needed year to do his job and local politics in a state where everybody really does know everybody else.

It’s a situation unlikely ever to reoccur, and precious little justification for playing "Ready! Fire! Aim!" with U.S. Attorneys.