Even more than Mukasey's woozy answers on waterboarding, I'm disturbed by his opinions on executive privilege and contempt, partly because I suspect Mukasey would make sure no waterboarding happened going forward, and that his answers on waterboarding are designed primarily to avoid putting those who waterboarded--or signed off on it--in the past at legal risk. But Mukasey's opinions on executive privilege appear designed to protect the White House from any consequences for the USA purge. They appear ready to shore up the firewall preventing further investigation of Rove and Bush.
When Pat Leahy asked Mukasey about executive privilege, Mukasey suggested that DOJ couldn't prosecute Harriet or Josh Bolten or Turdblossom for contempt, because they relied on a DOJ opinion in deciding not to testify.
LEAHY: Judge, I want to go back to your last answer to me yesterday. And you and I discussed this a little bit outside.
You said a U.S. attorney could only refer a contempt citation of Congress to a grand jury as required by law if he or she believed reliance on the president's executive privilege claim was unreasonable.
I have some trouble with that. I don't think that rules on claims of privilege when they're raised by -- whether they're reasonable, but whether they're valid -- so let's talk a little bit about this. If Congress were to refer a contempt citation -- and there is a real probability there will be some as a result of the U.S. attorney scandal -- you're indicating that the U.S. attorney would undertake an independent analysis, assess the claim of privilege, in determining whether to bring the matter before a grand jury.
Is that right?
MICHAEL MUKASEY, NOMINATED TO BE U.S. ATTORNEY GENERAL
Well, let me flesh out a little bit what I understand the process to be and to have been, and maybe put a little bit of flesh on the bones of my answer.
As I understand it, when the White House gets a subpoena, they refer it to the Department of Justice, as, in fact, happened here, because I was shown the letter from Paul Clement relating to the assertion of the privilege.
If the White House then, relying on that letter, I mean, if the president, since he is the only person who owns the privilege, if he, relying on the Justice Department, asserts the privilege and there is, nonetheless, a contempt citation, we're in the position where the Department of Justice would have to prosecute someone who followed the advice that originated with the Department of Justice.
I am told that there are not one, but two, opinions of the Office of Legal Counsel, one of them from Ted Olson, and the other from a man I know and whose name I can picture, and I can't come up with it now, who served in the Clinton administration, who I referred to yesterday. I'm sure I'll think of it after I leave here.
But, anyway, there are two OLC opinions, saying that that would not be appropriate and...
LEAHY: What would not be appropriate?
MUKASEY: That for the U.S. attorney to prosecute someone for a contempt, based on reliance on an opinion letter that originated in the Department of Justice, would not be appropriate.
So basically, Mukasey is arguing that DOJ can't enforce contempt of Congress, because DOJ has already told the White House officials that they won't be held in contempt. If you look at his written answer to this question, you see why--if DOJ told the White House official they could invoke executive privilege, there would be no way to prove criminal intent, and therefore no reason to call a grand jury.
5. No prosecutor should take a matter to a grand jury, or to trial, if he or she believes there is not probable cause. But prosecutors need to be able to test the validity of a claim of privilege. Under our current statutes, the way to test the validity of the executive privilege is through a contempt citation. That is a mechanism that brings the executive's claim of privilege to withhold information and the legislature's claim to the information to a head. You suggested in your testimony though, that where an official relied on Justice Department advice in asserting executive privilege, then no Justice Department prosecutor could move forward on a contempt citation.
A. If the other two branches have not been able to work out an accommodation, then the courts as the third branch can referee the dispute and apply what is actually a judicially-created privilege. Isn't that the logical place in our constitutional system of checks and balances to resolve a dispute between the executive and Congress about an assertion of executive privilege?
ANSWER: A prosecution for contempt of Congress may be one way of testing an assertion of privilege, but historically that is not how disputes between Congress and the Executive Branch have been resolved. A criminal case under the contempt statute should not be brought unless and until the prosecutor is convinced that the defendant intended to commit a crime. The prosecutor's decision, as to this as well as to other elements of a charged crime, should be based on his assessment that he possesses the facts which allow him to prove the case beyond a reasonable doubt. I understand also that it is the long-standing Department of Justice position that the criminal contempt of Congress statute does not apply to an executive branch official who declines to comply with a congressional subpoena based on the President's assertion of executive privilege. That rationale has been discussed in OLC opinions written by former Assistant Attorney General Walter Dellinger and by former Assistant Attorney General Ted Olson. Disagreements between Congress and the President over privilege matters historically have been resolved through an accommodation process that respects the prerogatives of both branches of government.
I find this answer troubling for a lot of reasons, not least that it means Mukasey, as AG, would allow Bush to continue to hide behind his specious privilege claims (though this doesn't address what will happen after DOJ's IG refers the USA Purge for criminal investigation; certainly, this leaves the possibility that a USA investigation would subpoena the same information).
As I pointed out yesterday, Clement makes one claim that I believe is false and probably disingenuous. He claims that Bush has a nondelegable power to appoint US Attorneys, inscribed in the Constitution.
These confidentiality interests are particularly strong where, as here, the communications may implicate a "quintessential and nondelegable Presidential power," such as the authority to nominate or to remove U.S. Attorneys.
The Senate has the authority to approve or reject the appointment of officers whose appointment by law requires the advice and consent of the Senate (which has been the case for U.S. Attorneys since the founding of the Republic), but it is for the President to decide whom to nominate to such positions and whether to remove such officers once appointed. [my emphasis]
As I pointed out yesterday, the Constitution explicitly allows Congress to legislate how and who appoints inferior officers, including US Attorneys.
but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
This is basic stuff, and goes right to the conduct of the executive in the USA purge (as I've pointed out, the executive didn't object to Congress' ability to legislate how inferior officers are appointed when Hatch snuck through the PATRIOT provision giving the AG power to appoint interim USAs). A key aspect of Clement's opinion--the part where he claims Congress has no legislative interest in this material--violates the Constitution. And that is the kind of thing a Court could rule on.
Yet Mukasey thinks that instead, Bush and Congress should just resolve this through an accommodation process.
(And note, this is precisely the same third-branch-negating argument that the Comey et al relied on in their letter to SJC.)