Justice: Clearing the Decks for Mukasey

Two weeks ago, President Bush nominated retired federal judge Michael Mukasey to replace Alberto Gonzales as the nation's Attorney General.

OCTOBER 4, 2007 by Faiz Shakir, Amanda Terkel, Satyam Khanna,
Matt Corley, Ali Frick, and Jeremy Richmond
Contact Us | Tell-a-Friend | Archives | Permalink


Clearing the Decks for Mukasey

Two weeks ago, President Bush nominated retired federal judge Michael Mukasey to replace Alberto Gonzales as the nation’s Attorney General. While no date has been set for his confirmation hearing, the process has moved forward with concerted talks between the White House and congressional leaders “to lay the groundwork for a hearing on the nomination.” On Tuesday, the Senate Judiciary Committee received a 45-page questionnaire from Mukasey, “providing important information necessary to begin a complete review of his record.” In a press briefing yesterday, White House Press Secretary Dana Perino urged the Committee to “schedule a hearing soon and get the AG confirmed as soon as possible.” But a hearing will not occur before Oct. 16, when Judiciary Committee Chairman Patrick Leahy (D-VT) meets with Mukasey for a second time to discuss his nomination. In a letter to Mukasey yesterday, Leahy indicated that while he will schedule a hearing soon enough, Mukasey’s nomination could hinge on his “willingness to answer questions the White House won’t about a litany of issues.” “The White House has chosen not to clear the decks of past concerns. … [T]hose matters now encumber your nomination and, if confirmed, your tenure,” wrote Leahy. 

VITAL QUESTIONS: In his letter yesterday, Leahy laid out a series of issues on which Mukasey would need to put himself on the record, ranging from his views on executive privilege to whom he will bring in to staff the Justice Department. Regarding executive privilege, Leahy wants to find out if Mukasey thinks “it extends to the actions and emails of political operatives in matters in which the President was not personally involved.” Leahy also wants to know if, in Mukasey’s view, “the President has authority to override legal requirements and immunize acts of torture.” The question of torture is especially salient at the moment in light of revelations in The New York Times today that former Gonzales “approved” a secret “legal memorandum” that was “an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency.” Mukasey has signaled to conservatives that he supports Bush’s torture policy.  Hoping to head off the excesses of Gonzales’s tenure, Leahy also wants assurances that Mukasey will “ensure that legal advice from the Department’s Office of Legal Counsel (OLC) is independent and protected from political influence.” The OLC under Bush has taken on an unprecedented “advocacy role” for the administration’s legal positions.

Though Mukasey is “expected to draw few objections” in the Senate, his nomination has engendered some backlash from movement conservatives. Claiming that Bush “unwisely” sought a consensus nominee, conservative columnist Robert Novak eviscerated Mukasey in a recent article, writing that he is “not well qualified to be attorney general by any rational standard.” Unsure of his position on the issue, anti-abortion groups and activists have been the most vocal in questioning Mukasey’s nomination. “President Bush has blown another chance to energize the discouraged, disheartened, and disillusioned base,” conservative activist Richard Viguerie told the Associated Press. “What we are doing is reserving judgment and emphasizing caution,” said Brian Burch, president of the Catholic-based advocate group Fidelis, who is wary of Mukasey’s relationship with Rudy Giuliani, who is pro-choice. In the Senate, Sen. Sam Brownback (R-KS) is concerned about one of Mukasey’s former clients, a dial-a-porn” service. “I want to know what his attitude is toward prosecuting pornography,” said Brownback. Brownback also intends to ask Mukasey “his views on the legal debate surrounding abortion.”

THE NEED FOR INDEPENDENCE: Though Mukasey appears to be a better pick than other potential Bush nominees, the Senate must determine whether he would assert true independence as Attorney General. Center for American Progress Senior Fellow Mark Agrast writes, “The Senate must consider carefully whether, if confirmed, Judge Mukasey will carry out his duties with the independence and integrity that eluded his predecessor.” Before being confirmed, Mukasey should be put on the record about how he will approach the legal overreaches of his predecessor. Would Mukasey have said no to warrantless wiretapping? Would he have signed off on torture? Or refused to allow the White House to intercede in the Justice Department’s affairs? In his letter, Leahy also sought to ascertain whether Mukasey would “improperly use” his “position” to benefit his longtime friend, former New York City Mayor Rudy Giuliani, who is running for President. The White House has said that Mukasey will recuse himself in cases where Giuliani is concerned, but Leahy wants assurances from Mukasey himself. In his answers submitted to the Judiciary Committee, Mukasey indicated a solid record of recusing himself when conflicts of interests could be perceived.


IRAQ — WHITE HOUSE BALKS AT ‘INTOLERABLE’ REACH OF LAW TO CONTRACTORS: Earlier this week, Erik Prince, CEO of Blackwater USA, confirmed in congressional hearings that his employees do not operate under “the same rules as soldiers” in Iraq. The House is now “expected today to take up legislation that would make it clear that U.S. laws apply to all armed private contractors hired for oversees missions.” Although the bill enjoys bipartisan support, the White House signaled yesterday its hesitation to bring contractors under the rule of U.S. law. Officials expressed “concern” that the bill “would create federal jurisdiction overseas in situations where it would be impossible or unwise to extend it,” and that it “would have unintended and intolerable consequences for crucial and necessary national security activities and operations.” Under the existing system, a former Blackwater employee accused of drunkenly shooting and killing an Iraqi guard last year was merely fined and fired, and now “spends much of his time renovating his small home” in Seattle.

CONGRESS — TANCREDO REFUSES TO VOTE FOR HOUSE RESOLUTION CELEBRATING RAMADAN: Yesterday, the House passed a resolution “recognizing the commencement of Ramadan” with 376 votes. The resolution sought to “demonstrate solidarity with and support for members of the community of Islam in the United States” during this Muslim month of fasting. Forty-one Republicans and one Democrat chose to vote “present,” however, including Rep. Tom Tancredo (R-CO). Tancredo voted “present” and not “no” because “a no vote could be construed as not commending religion in general, which Tom is for,” said Tancredo spokesman T.Q. Houlton. Instead, Tancredo seems to only selectively hate religion. He had no problem voting for a House resolution celebrating Christmas. In 2005, Tancredo suggested that the United States consider bombing Mecca as a “deterrent” against terrorist strikes on the U.S. homeland. The State Department said he was “absolutely crazy” for making the threat.

The Government Accountability Office (GAO) issued a report yesterday “on the process by which the Federal Communications Commission (FCC) gathers and releases information about important votes and other agency actions.” Currently, the FCC circulates information internally roughly three weeks before a public meeting, concerning what is scheduled to be voted on at the public meeting. “FCC rules prohibit the disclosure of this information to anyone outside of FCC.” The GAO charges that several stakeholders report hearing this information from FCC staff prior to the public meetings. “That advance word is critical because companies and consumer groups aren’t allowed to lobby once an agenda for a vote is made public.” The report “accuses the Federal Communications Commission of leaking tips to business interests before they’re made public. It says the FCC has informed phone and cable lobbyists about items coming up for a vote in Congress. … The Center for Responsive Politics says the FCC is closely intertwined with industry lobbyists — almost as close as the White House and members of the House of Representatives. In fact, FCC Chairman Kevin Martin used to be one.” 


Despite releasing a legal opinion in Dec. 2004 that declared torture is “abhorrent,” the Alberto Gonzales-led Justice Department issued a secret opinion shortly after his arrival in Feb. 2005 that provided “an expansive endorsement of the harshest interrogation techniques ever used” by the CIA. A lengthy New York Times expose describes the Office of Legal Counsel, headed by Steven Bradbury, as having become a politicized tool for the Vice President’s office.

There were “317,000 applications for unemployment benefits last week, an increase of 16,000 from the previous week,” and the biggest jump in four months. Analysts believe the increase “could be a further sign that the labor market is slowing under the impact of the worst slump in housing in 16 years.”

President Bush’s veto of SCHIP has divided conservatives. Sen. Charles Grassley (R-IA) said yesterday, “We’ve got to do what we can to try to override” the veto. “If we’re truly compassionate, it seems to me, we’d want to endorse this program,” added Sen. Orrin Hatch (R-UT).

The administration’s “Anbar strategy” holds the perilous possibility “that we just end up arming the Sunnis, who still hate the Shi’a…and that eventually the Sunni tribes end up fighting it out with the central government.” Echoing this concern, the largest Shiite political coalition in Iraq urged the U.S. military to “abandon its recruitment of Sunni tribesmen into the Iraqi police.”

After initial reports that the FBI agents investigating Blackwater in Iraq would be guarded by Blackwater, the agency announced last night that it won’t use security guards employed by that company. The action was taken “to avoid even the appearance of any conflict.”

The Military Religious Freedom Foundation (MRFF), a watchdog group, is arguing that U.S. troops are being force-fed Christianity. MRFF is planning to file a series of lawsuits “to show there is a pattern and practice of constitutionally impermissible promotions of religious beliefs within the Department of Defense.”

3,315: Number of people in Iraq infected with cholera, according to the World Health Organization. Cases of cholera were first detected in Kirkuk on Aug. 14 and have now spread to all of Iraq’s 18 provinces.

Senate leaders “have developed a plan that would allow them to move the controversial nomination of Hans von Spakovsky to the FEC to the floor for a separate vote Thursday.” Aides predict his nomination will pass, which would allow senators to “move to votes on the other three uncontested FEC nominees.”

And finally: “U2 front man Bono strode through the U.S. Capitol bright and early Wednesday morning, carrying a large bouquet of white and pink long-stemmed roses.” Sources report that he met with House Speaker Nancy Pelosi (D-CA) about “Africa, global AIDS funding, etc.

SIGN UP for the Progress Report

Read Our Blog: Think Progress

Under the Radar
Think Fast


Yesterday, a veto-proof majority in the House voted 404-11 to give government watchdogs “more autonomy and protection from political retribution.” President Bush has promised to veto the legislation.


MINNESOTA: Minnesota health organizations sponsor “Let’s Talk Month,” a national campaign to encourage parents to educate their children about sex and reproductive health.

COLORADO: Oil and gas development in the Rockies threatens land conservation efforts.

IMMIGRATION: Several cities and states are “bucking the national trend” and giving ID cards to undocumented immigrants.


THINK PROGRESS: Anti-immigration hate group is intent on denying green cards for soldiers’ spouses.

MEDIA MATTERS: Fox News’s Bill O’Reilly claims that Media Matters President David Brock is the “biggest villain…in the country.”

DEMOCRACY ARSENAL: Blackwater has undermined Gen. David Petraeus’s counterinsurgency strategy in Iraq.

OPEN LEFT: Sen. Russ Feingold (D-WI) will fight against voter suppression expert Hans von Spakovsky’s nomination to the Federal Election Commission.


“[British troops] had made progress in southern Iraq.”
— Vice President Cheney, 2/21/07


“Operationally, British forces have performed poorly in Basra. … Maybe it’s best that they leave.”
— Senior White House official, 10/3/07, days after Prime Minister Gordon Brown announced a withdrawal of troops from Iraq

The positions of American Progress, and our policy experts, are independent, and the findings and conclusions presented are those of American Progress alone. A full list of supporters is available here. American Progress would like to acknowledge the many generous supporters who make our work possible.