If you look at an organizational chart of the Justice Department, it seems as if career Tax Division lawyer John DiCicco is his own boss.
DiCicco used to be the acting Assistant Attorney General for the Tax Division. But with no presidentially appointed Tax Division chief, he had served in the “acting” capacity for so long, he no longer legally could hold the title.
And so, he became the Principal Deputy Assistant Attorney General in the DOJ Tax Division.
There is no Assistant Attorney General for the Tax Division because no one has been nominated since President Barack Obama’s first choice withdrew.
So who’s in charge?
You guessed it-John DiCicco.
This whole thing is so convoluted that the DOJ published a draft order in the Federal Register to delegate necessary authority to him. The order will run Monday.
The directive says that the Principal Deputy Assistant Attorney General will have “all of the Assistant Attorney General’s authority to compromise and close civil claims, except when such action is opposed by the client agency or agencies.”
DiCicco, a career DOJ lawyer, became Principal Deputy Assistant Attorney General earlier this month when he could no longer serve in an acting capacity. Federal law limits how long someone can be in an “acting” position. But he remains in charge of the Tax Division, according to the Associated Press.
In DiCicco’s case, he couldn’t be acting Assistant Attorney General after March 2 because it had been 210 days since the Senate returned the nomination of Mary L. Smith for Tax Division Assistant Attorney General to the White House and President Barack Obama hadn’t nominated someone to lead the division.
The Senate returned Smith’s nomination to the president twice. Republicans opposed her nomination, expressing concern about her lack of tax law experience. Smith was a partner at the Schoeman, Updike & Kaufman LLP and former in-house counsel to Tyco International Ltd., the international security products and services conglomerate.
She currently is Senior Counsel to Assistant Attorney General Tony West of the Civil Division. Smith, a Cherokee Nation member, would have been the highest-ranking American Indian ever to work at the DOJ.
The president initially nominated Smith for the post in April 2009. The Senate Judiciary Committee first approved her nomination in June 2009 without Republican support. The Senate returned her nomination to the White House for the first time in December. Obama renominated her in January 2010, and she was reported out of committee again in February 2010 without backing from Republicans.
DiCicco has led the office for about two years. Nathan Hochman, who stepped down as Assistant Attorney General in 2009, was the last Senate-confirmed presidential appointee to lead the Tax Division.
White House spokesman Reid Cherlin told the AP earlier this month that Obama administration is looking for a nominee for Tax Division Assistant Attorney General. He said they hoped to nominate someone “soon,” although with the administration more than half over, it’s increasingly unlikely to happen.
DOJ spokesman Matthew Miller told the AP that DiCicco will stay at the helm of the division while there isn’t a Senate-confirmed presidential appointee in place.
He just doesn’t have the title anymore.
This article has been edited to add context since it was first published. This article has also been corrected to reflect that DiCicco is a Principal Deputy Assistant Attorney General, not a Principal Assistant Deputy Attorney. He also was an acting Assistant Attorney General, not a Deputy Assistant Attorney.
In a merit-based system, DiCicco would have been nominated to be the assistant attorney general for the division. He is, after all, the best qualified person since he has been holding the job and performing its duties competently for over two years (at a salary discount, of course). Instead, the Administration continues to hunt for a marginally qualified, but politically acceptable appointee. But then these positions are not merit-based and never have been.