Dawn Johnsen during her confirmation hearing before the Senate Judiciary Committee in February 2009 (Getty Images)

Former Office of Legal Counsel nominee Dawn Johnsen is on course for re-nomination, an administration official told Main Justice today.

Johnsen has been in a state of limbo since the Senate returned her nomination to the White House on Christmas Eve, after she spent months waiting for a vote on the Senate floor. The White House sent her nomination to the Senate on Feb. 11, 2009 and the Senate Judiciary Committee approved her nomination on a party line vote on March 19, 2009.

Several Senate Republicans, joined by Democratic Sens. Arlen Specter (Pa.) and Ben Nelson (Neb.), have voiced concerns about Johnsen’s vocal opposition to the Bush administration’s national security policies and her past work for an abortion rights group.

President Barack Obama must tap Johnsen again if he wants the Senate to confirm her. The White House has remained mum on whether she will be re-nominated.

Press Secretary Robert Gibbs told reporters today during a briefing that he has “not gotten an answer” on Johnsen and is looking into it. The administration official told Main Justice that Johnsen matter hasn’t come to the president’s desk yet.

Gibbs said the White House is unhappy with the pace of confirmation for some of the nominees.

“We’ve put a number of people into government in the first year,” Gibbs said in response to a question by the Huffington Post. “But at the same time, we have seen a pacing in dealing with nominations both for the executive branch and for judicial nominations that I think by almost any estimation would be deemed slow.”

William Treanor, who worked with Johnsen in the Office of Legal Counsel during the Bill Clinton administration, said Johnsen remains “enthusiastic” about her prospects for confirmation. We previously reported that she will continue to teach law at Indiana University during the spring 2010 semester. Johnsen declined to comment to Main Justice.

Johnsen has support from liberal advocacy groups, including the National Organization for Women, Alliance for Justice and People for the American Way.

People for the American Way recently wrote about the returned OLC nominee on its blog and has endorsed two letters in support of Johnsen.

Marge Baker, an executive vice president at People for the American Way, said her organization do “whatever needs to be done” to get Johnsen confirmed.

“We’ll continue working all of the angles,” Baker told Main Justice.

OLC has not had a Senate-confirmed head since George W. Bush appointee, Jack Goldsmith, resigned in June 2004.

Bush nominated Steven Bradbury to the post five times, but he was returned to the White House each time. Bradbury served as acting OLC chief from June 2005 to April 2007, and continued to lead the office as Principal Deputy Assistant Attorney General until the start of the Obama administration.

David Barron has been the acting head of OLC since January 20. In 2004, Johnsen, Barron, Treanor and other former OLC officials signed the “Principles To Guide the Office of Legal Counsel,” which offered suggestions on how the office could move forward after it was revealed that the office authorized harsh interrogation methods used against terrorism suspects during the Bush administration.

Joe Palazzolo contributed to this report.

President Barack Obama will need to re-nominate three nominees for top Justice Department posts if he wants the Senate to consider them again.

Dawn Johnsen (Indiana University)

The Senate approved a unanimous consent request today to hold over several nominees for the second session of the 111th Congress, which begins in January.

But nominees to head three DOJ offices: Dawn Johnsen, for the Office of Legal Counsel, Mary L. Smith, for the Tax Division, and Christopher Schroeder, for the Office of Legal Policy, were returned to the White House before the Senate recessed for the holidays.

Johnsen, who was nominated in February, was approved by the Senate Judiciary Committee in March on a party line vote.

Mary L. Smith (Schoeman, Updike & Kaufman)

Several Senate Republicans, joined by Democratic Sens. Arlen Specter (Pa.) and Ben Nelson (Neb.), have voiced concerns about Johnsen’s vocal opposition to the Bush administration’s national security policies and her past work for an abortion rights group.

Republicans have also raised concerns about Smith, who was nominated in April. She did not receive a single Republican vote when she was reported out of committee in June. GOP lawmakers said Smith, a Chicago lawyer who served in the Clinton White House counsel’s office, lacked tax law experience.

Christopher Schroeder (Duke University)

It is unclear what objections have been raised about Schroeder, who was approved by the Judiciary panel in July by voice vote. He was nominated in June.

But Schroeder, like Johnsen, had been a critic of Bush’s national security policies. Read his June 2008 testimony before Congress about interrogation policies at Guantanamo Bay here.

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) had been pushing for the Senate to confirm the nominees before the Senate recessed today.

A White House spokesperson didn’t immediately respond to a request for comment.

Attorney General Eric Holder and Rep. Bobby Scott (D-Va.) (photo courtesy of Bobby Scott)

Rep. Bobby Scott (D-Va.) has introduced legislation that would make it illegal for government lawyers to request a waiver of attorney-client privilege as a measure of cooperation in civil and criminal investigations.

The Justice Department’s corporate charging guidelines prohibit prosecutors from considering waivers as a litmus test for whether a company has been cooperative.

But the policy does not extend to other agencies such as the Securities and Exchange Commission, the Environmental Protection Agency and the Department of Housing and Urban Development.

The bill, like the guidelines, also bars government lawyers from penalizing corporations for paying employees’ legal fees, or for entering into joint defense agreements with employees.

The 2008 guidelines, known as the Filip memo, after former Deputy Attorney General Mark Filip, are not enforceable under law, and the Justice Department has opposed previous attempts to render them so.

The history of the guidelines begins with Attorney General Eric Holder, who as Deputy Attorney General during the Clinton administration signed a memo authorizing that a corporation’s waiver of attorney-client and work product privileges could be considered when assessing cooperation in a criminal investigation.

Holder has said he intended for prosecutors to ask for waivers in instances where a corporation was already cooperating with the government. But the memo became a tool of coercion, in some cases, with prosecutors demanding waivers as a condition of cooperation.

Scott’s bill, which was introduced on Wednesday, is identical to one passed by the House in the 2007. Sen. Arlen Specter (D-Pa.) introduced similar legislation in February.

White & Case LLP partner Carolyn Lamm, president of the American Bar Association, welcomed the legislation, saying it would create “a sensible, uniform standard of conduct for all federal agencies.”

See Lamm’s full statement below:

The American Bar Association applauds the introduction in the U.S. House of Representatives of legislation, H.R. 4326, designed to roll back federal agency policies that continue to erode fundamental attorney-client privilege, work product and employee legal protections.

The Attorney-Client Privilege Protection Act, introduced yesterday by Rep. Bobby Scott and cosponsored by numerous House Judiciary Committee members from both parties, recognizes the importance of the attorney-client privilege to our legal system, our nation’s economic health and our society as a whole.  Protecting confidential attorney-client communications from government-compelled disclosure fosters voluntary compliance with the law, and that benefits everyone.  Government tactics that coerce disclosure, on the other hand, undermine these benefits and our adversarial system of justice, and can unfairly threaten the very survival of organizations, including even the largest, most robust corporations.  In addition, government policies that pressure companies to refuse to provide employees with legal assistance while investigations are pending, or to fire them for asserting their Fifth Amendment rights, weaken the constitutional presumption of innocence and undermine principles of sound corporate governance.  The ripple effect harms employees, investors and all of society.

While the ABA supports the revised corporate charging guidelines issued by the Justice Department in August 2008 that expressly bar prosecutors from forcing organizations and their employees to waive fundamental protections during investigations, those guidelines do not have the assurance of permanence and do nothing to change the similar policies still in effect at the Securities and Exchange Commission, the Environmental Protection Agency, the Department of Housing and Urban Development, and other agencies.  Such policies, like the Justice Department’s previous policy, pressure organizations to waive their privileges and violate their employees’ Sixth Amendment right to counsel and Fifth Amendment right against self-incrimination to receive cooperation credit during investigations.

H.R. 4326 — like the similar Senate bill, S. 445, introduced by Sen. Arlen Specter in February — would make the Justice Department’s reforms permanent, give them the full force of law and apply them to all federal agencies.  The legislation would create a sensible, uniform standard of conduct for all federal agencies and strike the proper balance between the legitimate needs of prosecutors and regulators, and the constitutional and fundamental legal rights of individuals and organizations.

The American Bar Association strongly urges Congress to approve this critical legislation as soon as possible.

Sen. Leahy, chair of the Senate Judiciary Committee, which passed the media shield bill to the full Senate on Thursday (file photo by Ryan J. Reilly / Main Justice).

A bill protecting the right of journalists to keep their sources confidential passed the Senate Judiciary Committee today by a 15 to 4 vote.

The legislation has been endorsed by Attorney General Eric Holder and media organizations.  But Sen. Jeff Sessions, the panel’s top Republican, said the bill would protect “criminal leaking of classified information” and “hamstring the government’s ability to keep its most vital operations confidential.”

Several amendments failed, including one introduced by Sen. Richard Durbin (D-Ill.) and Sen. Dianne Feinstein (D-Calif.) which limited the definition of a journalist.

The legislation broadly defines journalists to include bloggers, citizen journalists and freelancers.

Durbin said that definition was too expansive and would cover politicians on Twitter, holding up examples of some of his colleague’s tweets.

Sessions said the bill doesn’t “state with sufficient clarity who qualifies as a journalist.” The Alabama Republican added in a statement, “This is a serious concern. The shield could potentially apply to everyone from high school kids in a journalism class to those producing tracts for extremist groups. We are rushing into perilous and uncharted waters.”

But Sen. Patrick Leahy, chairman of the Senate Judiciary committee, pointed to what he called the anonymous “blogs” of Benjamin Franklin, and said journalists writing under pseudonyms should not be excluded from the bill.

The Senate version of the Free Flow of Information Act of 2009 protects reporters’ confidential sources in federal court. Those rights are not absolute, and can be overridden in national security cases. However, under the legislation, the government would have to provide facts to back up its claim that a leak of information harmed national security.

The bill would also extend protection to journalists’ phone and email records held by third-party communications companies.

The media shield legislation was introduced by Sens. Arlen Specter (D-Pa.) and Charles Schumer (D-N.Y.) in February. It would provide protection on the federal level for the journalist-source relationship. Most states already have media shield laws.

“I’m happy with the final language,” Leahy told Main Justice. “It’s been a long time getting here, I tried to make sure everyone had the opportunity to get heard and for all those who said we couldn’t get it out of committee, we did.”

“The Free Flow of Information Act strikes the right balance among the important objectives of protecting our nation, enforcing our criminal laws and ensuring freedom of expression,” said Leahy in a statement. “After years of debate and countless cases of reporters being held in contempt, fined and even jailed for honoring their professional commitment not to publicly reveal their sources, the time has come to enact a balanced Federal shield law.”

The act is supported by more than 70 news media and journalism organizations, including ABC News, the Associated Press, CNN, the National Newspaper Association and the Society of Professional Journalists, according to Leahy’s office.

This story has been updated with a statement from Sen. Jeff Sessions (R-Ala.)

Patrick Meehan (doj)

Pat Meehan, a former U.S. Attorney and Republican candidate for a House seat from the Philadelphia suburbs, is the only declared GOP candidate in the race, thanks to some careful maneuvering by the Delaware County Republican Party, The Bulletin of Philadelphia reports.

The seat will be open, as incumbent Rep. Joe Sestak (D-Pa.) has decided to challenge Sen. Arlen Specter (D-Pa.). Initially, millionaire businessman Steve Welch was expected to run for the GOP nomination in the 7th congressional district; however, the party “successfully ‘persuaded’” him to run in the 6th district instead, The Bulletin reports.

However, Meehan might have one more hurdle to face — Dawn Stensland. The Bulletin reports that Stensland, a television reporter and anchor for Fox’s Philadelphia affiliate, is considering running for the Republican nomination in the 7th congressional district.

Dawn Stensland (Fox)

If Stensland were to run she likely would “generate an immediate buzz,” as she has been in the limelight as a TV personality, the newspaper reports. In addition, Stensland is the wife of former well-known television anchor man Larry Mendte. According to The Bulletin, “a serious and aggressive Stensland campaign has the ability to throw the Meehan effort way off track,” as Stensland already is a household name, while Meehan is not.

Meehan might have an advantage in the fundraising arena, as he raised $212,000 in the third quarter of this year, and has $210,942.01 on hand, according to his most recent Federal Election Commission report.

Three Democrats have announced their candidacies: state Rep. Bryan Lentz, attorney and environmental consultant Gail Conner, and political consultant E. Teresa Touey.

Two stalled Justice Department nominees are slated for university teaching jobs again early next year,  according to university course schedules for spring 2010.

The teaching jobs give the two nominees a backup plan in case their confirmations continue to be stalled in the Senate.

Office of Legal Counsel nominee Dawn Johnsen, who was nominated Feb. 11, will teach a class at Indiana University’s Maurer School of Law this spring.

Office of Legal Policy nominee Christopher Schroeder, who was tapped June 4, will teach two courses, along with Sen. Ted Kaufman (D-Del.), for the Duke University School of Law in Washington this spring.

Dawn Johnsen (Indiana University)

Johnsen’s constitutional law seminar is titled, “Congress, the Presidency and the Courts.” The OLC nominee’s course is slated to tackle such topics as “permissible forms of congressional oversight of the Executive, including limitations on the appointment and removal of executive branch officers” and “when may the president assert executive privilege and refuse to comply with requests for information from Congress or the courts,” according to the Indiana University law school’s Web site. Read the full course description here.

The OLC nominee taught a a seminar titled “Sexuality, Reproduction and the Law” this fall, while commuting between Washington and Bloomington, Ind.

Several Senate Republicans, joined by Democrats Arlen Specter (Pa.) and Ben Nelson (Neb.), have criticized Johnsen because of her vocal opposition to the Bush administration’s national security policies and her past work for the group formerly known as the National Abortion and Reproductive Rights Action League. She was approved by the Senate Judiciary Committee March 19 by a 11-7 vote. Specter, who was a Republican at the time, abstained from the vote. Nelson is not on the committee.

Christopher Schroeder (Duke)

As for Schroeder, one of his courses requires students to participate in an externship in D.C. about federal policy making. The other class requires students to write about their federal policy making externship.

The externship course is designed for “students who are interested in public policy, public service, and careers in the public sector an opportunity to study federal policymaking firsthand,” according to the Duke law school Web site. The externship course description is here. The paper class description is here.

Schroeder also taught the externship course with Kaufman in spring 2009. Schroeder did not teach a course this fall.

The Senate Judiciary panel, of which Kaufman is a member,  approved Schroeder’s nomination by voice vote on July 28. Committee Chairman Patrick Leahy (D-Vt.), complained on Nov. 17 about the delay in Senate action on a number of nominations, including that of Schroeder, noting in a press release,  “I can only imagine that the reason his confirmation is being delayed is part of the partisan effort to slow progress on judicial nominees.”

Senate Judiciary Committee Democrats Thursday were still unable to garner much Republican support today for legislation that would make it harder for courts to order reporters to divulge their sources, despite making several changes to the bill.

The panel adopted a substitute amendment offered by Democratic Sen. Arlen Specter of Pennsylvania at a committee markup session that would  add more national security protections to the bill, which is known as the Free Flow of Information Act of 2009. The panel approved the amendment by unanimous consent, but a slew of threatened GOP amendments prevented the committee from taking a final vote on the measure, which has had the bill on its agenda since April. Specter is also the principal sponsor of the underlying bill.

Republicans have been skeptical of the bill’s effect on national security. The bill and substitute amendment have just one Republican sponsor from the committee – Lindsey Graham of South Carolina.

“The language is not yet perfect,” Jon Kyl (R-Ariz.) told his colleagues. The Judiciary panel Thursday rejected two Kyl amendments addressing some of the GOP’s national security concerns.

According to the Specter substitute amendment approved on Thursday:

– The Attorney General would be required to determine whether a request for information from a journalist is in accordance with the U.S. Attorney’s Manual.

– Journalists would bear the burden of showing that it is necessary for them to withhold requested information when the court balances a request for journalists to divulge information.

– The bill’s national security language would be expanded, giving the courts more power when ruling on requests involving national security issues.

– The bill would include more specific language on the qualifications for a journalist. The proposed language does not cover an individual who is a terrorist or involved in terrorism.

Attorney General Eric Holder supports the changes to the legislation.

In a letter sent to the panel  earlier this month, Holder and National Intelligence Director Dennis C. Blair said the Specter amendment is a “significant step forward from previous versions.”

“We appreciate the critical role that the media plays in a free and democratic society,” Holder and Blair wrote in the letter. “This legislation provides robust judicial protection for journalists’ confidential source, while also enabling the government to take measures necessary to protect national security and enforce our criminal laws.”

Stephen Miller, a spokesman for the Judiciary Committee’s top Republican, Jeff Sessions of Alabama, told The Washington Post that the letter from Holder and Blair was “woefully short and left many questions unanswered.”

It will be at least another two weeks until the committee can vote on final passage of the media shield because of the Thanksgiving holiday next week.

Committee Democrats are irked that the media shield bill has languished in the committee since April, but Kyl charged today that panel Democrats have not included him and other Republicans who are opposed to the bill in private meetings about the legislation, forcing the committee to spend a significant amount of time discussing the bill during open markups.

Committee Chairman Patrick Leahy (D-Vt.) urged them to set up meetings with the bill’s sponsors. But he said the bill’s sponsors should put the bill on the Senate calendar and skip a committee vote, if Republicans are “unwilling to cooperate.”

“I remain committed to establishing a meaningful federal shield law,” Leahy said in a statement. “I am disappointed that after seven months this committee was not able to report the Free Flow of Information Act today.”

The House passed its version of the bill in March.

Western District of Pennsylvania U.S. Attorney Mary Beth Buchanan will step down tomorrow, leaving office with one regret, the Pittsburgh CBS affiliate KDKA reported.

Mary Beth Buchanan (DOJ)

The controversial Bush holdover, who has served as U.S. Attorney since 2001 and also held a Justice Department position in Washington during the Bush years, told the television station that she wishes she never approved a plea deal with comedian Tommy Chong in a drug paraphernalia case called Operation Pipe Dream.

Chong, who starred in the “Cheech & Chong” movies, agreed to plead guilty to one count of conspiracy to distribute drug paraphernalia through a family business to save his wife and son from prosecution. He was sentenced in 2003 to nine months in prison and was ordered to pay a fine. It isn’t clear from the KDKA article why Buchanan regretted the plea deal, but Chong’s prosecution had sparked protests by civil libertarians and ridicule for Buchanan’s office.

Buchanan told KDKA she had no regrets about another case that her critics questioned, the unsuccessful prosecution of former Allegheny County medical examiner Cyril Wecht.

Her office dismissed all charges against the Democratic defendant after a federal judge threw out evidence that he ruled was improperly obtained. Wecht’s supporters accused Buchanan of targeting him because of his politics. Former Attorney General Richard Thornburgh asked Attorney General Eric Holder to discipline Buchanan for “vindictively” suggesting at a news conference that Wecht was guilty, but nothing ever came of the request – at least publicly.

Buchanan didn’t tell KDKA about her future plans, but said she is considering another public office. We reported that she might run for the Republican nomination to challenge  Rep. Jason Altmire (D), who represents Pennsylvania’s 4th congressional district.

Western District First Assistant U.S. Attorney Robert Cessar is slated to serve as acting U.S. Attorney until a successor to Buchanan is confirmed by the Senate, according to the television station. Pennsylvania Democratic Sens. Arlen Specter and Bob Casey have yet to announce their recommendation for the post.

Sen. Arlen Specter’s challenger in the 2010 Pennsylvania Democratic primary is bringing the stalled Dawn Johnsen nomination to the fore of the election battle.

Joe Sestak (Gov)

Rep. Joe Sestak, Specter’s Democratic primary opponent, accused the Pennsylvania senator of “joining the GOP stonewalling” of the Office of Legal Counsel nominee, who has languished without a Senate vote for seven months. The Senate Judiciary Committee approved Johnsen’s nomination in March, but Specter hasn’t committed to support her.

“Opposition to Professor Johnsen does not have to do with her qualifications to head of the Office of Legal Counsel,” Sestak said in a statement. “Rather, it has to do with her pro-choice views and her vocal, but justified, opposition to extra-legal practices of the Bush administration. I call on my colleague, Arlen Specter, to state unequivocally that he will stop supporting Republican obstructionist tactics and stop depriving the President of his most important legal advisor in this difficult and dangerous time.”

Specter changed parties in April after it became clear he would face a tough Republican primary challenge next year from former Rep. Pat Toomey (R-Pa.). At a news conference announcing his dramatic party switch, Specter said he opposed Johnsen. But he has never clarified whether he would vote for a procedural motion to advance her nomination. Democrats need 60 votes to end debate and move to a full Senate vote on Johnsen.

“Senator Specter has several concerns about Ms. Johnsen’s nomination,” Specter’s office said in a statement to Main Justice today. “Senator Specter had a second meeting with her to get clarification on her positions and he is still considering her nomination.” The first meeting was April 2, and the second occurred May 12, according to Specter’s office.

Sestak is trailing Specter by 19 points in the latest Quinnipiac University poll released last month.

We reported last week that several liberal groups are putting more pressure on Senate Majority Leader Harry Reid (D-Nev.) this week to move on Johnsen.

Sen. Ben Nelson (D-Neb.) and many Republicans have criticized the Indiana University law professor because of her vocal opposition to the Bush administration’s national security policies and her past work for abortion rights.A

Mary Beth Buchanan (DOJ)

The resignation of Pittsburgh U.S. Attorney Mary Beth Buchanan could mean the White House is close to announcing her replacement. At least, that’s our take on this article today in The Pittsburgh Tribune-Review.

The newspaper’s interpretation is the other way around. It speculates that Buchanan has spurred the White House to move a nominee for Pennsylvania’s Western District through the announcement last week of her Nov. 16 departure.

But in our experience, the Bush holdovers who have been clinging to office (and their steady paychecks) long past their expiration date in the Obama administration let go only after the White House informs them their replacement is imminent.

At the same time, Buchanan apparently has her sights on elective office. Criticism from Democrats — not the imminence of her replacement — could be the explanation for her departure. She is reportedly considering a run for the Republican nomination to challenge Rep. Jason Altmire (D), who represents Pennsylvania’s 4th congressional district.

In her eight years as U.S. Attorney, Buchanan kicked up controversy on several fronts. She pursued prosecutions that critics said targeted Democrats, which she has denied. meantime, leadership roles she held at DOJ headquarters in Washington fueled suspicion she helped politicize the department during the Bush administration.

The White House has yet to announce a nominee for U.S. Attorney, although “preliminary vetting” by the Justice Department reportedly has begun. David Hickton, co-founder of transportation law firm Burns, White and Hickton, is believed to be the favorite of Democratic Sens. Bob Casey and Arlen Specter, news reports have said.

Attorney David Hickton (Burns, White and Hickton)

Ken Gormley, interim dean of Duquesne University School of Law, told The Tribune-Review: “Clearly the issue has moved to the front burner of the White House,” adding, “It’s enough time and will probably spur the White House onward to expedite the process — if not for the whole country, at least for Western Pennsylvania because it requires a decision now.” However, “It’s not completely unusual for these things to take a period of time.”

Fred Thieman, a U.S. Attorney during the Clinton administration, told The Tribune-Review the nomination process has been slowed because of increased scrutiny of presidential appointees. “There’s more pre-announcement vetting than there used to be.”