Kagro X has a post focusing, again, on Michael Mukasey's evasions about the Constitution. Kagro focuses not on Mukasey's confusion about whether water-boarding is torture, but whether the President can ignore existing laws.
Any president -- and I mean any president -- ought to be able to depend on a certain amount of deference from his or her Attorney General, of course. This ordinarily goes without saying, but in this case must be said because it sets up an irreconcilable paradox. Is it even possible to serve an administration that regularly asserts constitutional interpretations like the one Judge Mukasey did and protect the fundamental rule of law which underlies our entire constitutional system of government? How could it be so?
An "administration" that sends distinguished federal judges to Capitol Hill and puts them in a position requiring them to hedge on answers to such basic questions as must a president obey federal statutes is operating so far outside the bounds of normalcy already, that it hardly seems worth anyone's time to pretend that an Attorney General is necessary to the functioning of the government at all.
I'd like to reinforce Kagro's point by pointing to the consistency, across time and nominees, of the Administration's AG candidates on this Constitutional question. Here's the complete context of the Mukasey comment that Kagro is focused on.
LEAHY: And, lastly, where Congress has clearly legislated in an area, as we've done in the area of surveillance with the FISA law, something we've amended repeatedly at the request of various administrations, if somebody -- if it's been legislated and stated very clearly what must be done, if you operate outside of that, whether it's with a presidential authorization or anything else, wouldn't that be illegal?
MUKASEY: That would have to depend on whether what goes outside the statute nonetheless lies within the authority of the president to defend the country.
LEAHY: Where does the president get that authority? I thinking of the Jackson opinion and others. Where does he get the authority if it's clearly enunciated what he can do, law that he signed, very clearly enunciated? I mean, the president say, This authority, I'm going to order the FBI to go in and raid 25 houses because somebody told me they think someone's there. We're not going to wait for courts, we're not going to do anything else. There's no urgency, but we'd just kind of like to do that.
MUKASEY: We'd kind of like to do that is not any kind of legitimate assertion of authority.
And I recognize that you've posited the case that way for a reason. But the statute, regardless of its clarity, can't change the Constitution. That's been true since the Prize cases. And it was true before that.
LEAHY: Can a president authorize illegal conduct? Can the president -- can a president put somebody above the law by authorizing illegal conduct?
MUKASEY: The only way for me to respond to that in the abstract is to say that if by illegal you mean contrary to a statute, but within the authority of the president to defend the country, the president is not putting somebody above the law; the president is putting somebody within the law.
Can the president put somebody above the law? No. The president doesn't stand above the law.
But the law emphatically includes the Constitution. It starts with the Constitution. [my emphasis]
Leahy is concerned about whether Bush can just decide to operate outside of FISA--or any other law that explicitly limits the behavior of the Executive Branch. But he's also concerned about whether the Administration can offer immunity for someone who follows the President's orders in operating outside of statute.
This exchange looks remarkably similar to one between Pat Leahy and Alberto Gonzales--back before we knew the extent of Gonzales' craven willingness to put law aside for politics. The topic is different--Leahy is asking about torture, not wiretapping. But the response is almost the same.
LEAHY: But I'd like to ask you a few questions about the torture memo that is dated back in August 1st, 2002, signed by Assistant Attorney General Jay Bybee.
LEAHY: Well, let me then ask you, if you're going to be attorney general -- and I'll accept what you said and let's put on the hat if you're confirmed as attorney general -- the Bybee memo concludes the president has authority as commander in chief to override domestic and international laws prohibiting torture and can immunize from prosecution anyone -- anyone -- who commits torture under his act. Whether legal or not, he can immunize them.
Now, as attorney general, would you believe the president has the authority to exercise a commander-in-chief-override and immunize acts of torture?
GONZALES: First of all, Senator, the president has said we're not going to engage in torture under any circumstances. And so you're asking me to answer a hypothetical that is never going to occur. This president has said we're not going to engage in torture under any circumstances, and therefore that portion of the opinion was unnecessary and was the reason that we asked that that portion be withdrawn.
LEAHY: But I'm trying to think what type of opinions you might give as attorney general.
Do you agree with that conclusion?
GONZALES: Senator, I do believe there may come an occasion when the Congress might pass a statute that the president may view as unconstitutional.
And that is a position and a view not just of this president, but many, many presidents from both sides of the aisle.
Obviously, a decision as to whether or not to ignore a statute passed by Congress is a very, very serious one, and it would be one that I would spend a great deal of time and attention before arriving at a conclusion that, in fact, a president had the authority under the Constitution to... [my emphasis]
Both judge-nominees assert that the President can assert authority under the Constitution to ignore statute, and both come close to saying that if the President does so, it immunizes those who follow the President's orders. Sure, Mukasey doesn't evade as clumsily as Gonzales. But the effect is still the same--the assertion that the President can decide, absent court review, that a statute impinges on his authority under the Constitution and therefore he can ignore it and immunize others who ignore it.
If you recall, Gonzales received weak support among Democrats for his nomination, winning the vote of just six (then) Democratic Senators: Lieberman , Landrieu, Nelson, Nelson, Pryor, and Salazar. Pryor certainly lived to regret his vote in favor of Gonzales, when as Attorney General Gonzales ignored Pryor's concerns about Tim Griffin and attempted instead to "gum to death" the Griffin nomination over the Senator's objections.
I don't think Mukasey is as reprehensible as Gonzales. I doubt he'd continue the practice of politicization of justice in this country. But it does appear clear that Mukasey would happily endorse David Addington's theories of unitary executive.
And we have a recent object lesson in what kind of Attorney General such willingness produces.