- Associated Press - Tuesday, March 8, 2011

Mary L. Smith would have been the top enforcer of the nation’s tax laws, the highest Justice Department position ever attained by an American Indian.

But in a two-year saga that is pure Washington, the leadership post she was to occupy remains vacant.

So the Justice Department’s tax enforcement team heads into a third-straight federal tax-filing season without a chief chosen by the president and confirmed by the Senate. And the Obama White House is still hunting for a new nominee.

Though far less visible than, say, the chief of the department’s criminal division, the assistant attorney general who heads the tax division commands nearly 400 lawyers, manages an annual budget of more than $100 million, and supervises thousands of court cases against taxpayers large and small who run afoul of tax laws.

Twice nominated by President Obama and twice done in by Senate Republicans who called her unqualified, Miss Smith is serving elsewhere as senior counsel to the assistant attorney general for the civil division, Tony West.

At the tax division, the position for which Miss Smith was nominated has been filled on an interim basis by John DiCicco, a career department lawyer.

Mr. DiCicco has become one of those rare federal officials who serve so long in an acting capacity more than two years in his case that they bump up against a little-known time limit set by the Federal Vacancies Reform Act of 1998. Because of that law, Mr. DiCicco was no longer acting assistant attorney general for the tax division as of midnight last Thursday. But the law also prevents naming a new acting chief at this point.

That prompted action of sorts at the White House and the Justice Department.

“We’re identifying the best possible candidate to fill this role, and we hope to make the nomination soon,” White House spokesman Reid Cherlin said. But such searches are always harder when the job can only be guaranteed for less than two years.

The Justice Department came up with a lawyerly solution to deal with the dilemma posed by the reform act. The department replaced the word “acting” in Mr. DiCicco’s title with the word “deputy.”

“Deputy Assistant Attorney General DiCicco will continue to lead the division until a confirmed assistant attorney general is in place,” department spokesman Matthew Miller said.

“The day-to-day operations of the tax division are not affected by the change in his title,” Mr. Miller added. But the division will now work closely with Associate Attorney General Thomas Perrelli’s office on matters that need higher-level attention, such as settlements of major tax cases.

Miss Smith, a member of the Cherokee Nation of Oklahoma, grew up in Chicago and graduated magna cum laude from Loyola University in 1984. She became a lawyer and served in the mid-1990s as a trial attorney in Justice’s civil division.

She worked on President Clinton’s 1996 re-election campaign, spent three years as associate director of policy planning for Mr. Clinton’s Domestic Policy Council and was a lawyer in the White House’s counsel’s office.

After the Clinton administration, she went to the Washington law firm of Skadden, Arps, Slate, Meagher & Flom and specialized in governmental investigations and securities class-action lawsuits. She moved to Tyco International (US) Inc. as senior litigation counsel and managed a massive lawsuit against the company that was settled for $3 billion.

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