Mukasey and Contempt

by emptywheel

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).

But I'm particularly disturbed, here, because Solicitor General Paul Clement, in his role as acting AG overseeing an investigation of the DOJ, wrote an opinion that ignores Constitutional provisions.

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.

[snip]

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.)

Comments

[casual observer]

Hatch snuck it through? I thought it was Haggis.

[earlofhuntingdon]

Mukasey's answer is deeply troubling if predictable. A court should determine whether the president's assertion of privilege is legally valid. Mukasey's answer parrots Gonzales', which parrots Addington's. It is that a client's lawyer - not an impartial judge - should determine whether the lawyer's advice was correct. A perfect whet dream for the defense bar, but not justice or a workable system of checks and balances.

Moreover, the DOJ is not simply rendering legal advice: its judgments in these matters patently bow to the will of the executive, as John Yoo's do on the issue of torture. In this regard, I believe that Mukasey's answer is savvy, but corrupt. EW is correct to call it more troubling than Mukasey's desperate attempt not to incriminate his would be boss over his acts of torture.

On this point, Jack Balkin has a good post up that compares Mukasey's plight to the Groucho Marx line: Mukasey shouldn't join a club that would have him as a member.

Like the Bad CEO model I claim Bush and Cheney use as templates, they prize nothing more than assuring themselves that they won't be held to account. Therefore, they would never nominate someone as AG who was willing publicly to call their behavior torture. This would expose the administration as liars serially engaged in morally and legally repugnant behavior, regardless of whether they were legally liable for it.
That could have financial and electoral consequences for the GOP for several elections.

[NC Dem]

The key words in this analysis appears to be "accommodation process". What exactly does that mean? Based upon long years of debunking Bush's bi-partisan methodology in Texas and in the WH, it simply means,"we will always do it my way". Bush has only negotiated when he has lost and he knows he has lost.
The most troubling aspect of this entire FISA episode is the "accommodation" that is currently going on between Bush and the Intelligence Committee and now the Judiciary Committee. The administration is buying off the members with perks of viewing a few documents on the legal analysis of the telecom involvement and more scare tactics of "blood on your hands" if you fail to be fully complicit in what you had been formerly only secondarily complicit.
I was especially troubled that the second panel yesterday for the Judiciary Committee that heard briefly from Mort Halperin, Patrick Philbin, and Edward Black. The first panel where a few Senators were present to hear the hack Kenneth Wainstein was as expected. The second panel with more balanced witnesses was only attended by Feinstein (who took over for Leahy) and Spector. It lasted less than 40 minutes. With the first panel, 4 strong Democrats were not present. I was proud of the questions from Feingold but he was one of the few that thoroughly understand the ramifications of this Senate Bill.

[Kagro X]

That'll be ten bucks, Balkin!

[radiofreewill]

Any Bush-nominated AG will have to be agile enough to 'paper over' each spoonful of The Plan that Addington feeds him.

As Murky 'needs to know' for enablement purposes, Addington will 'fly the airplane, open wide' right into his mouth - contempt, executive privilege, Torture, compliance with federal statute - Addington will be right there to make certain he 'chew-chew-chews.' Cheney might even be there to show Addington how to manually work Murky's jaw if he's not doing it right on his own...

The Plan is to use malleable Dupes to cover BushCo's tracks - Bush and Cheney and Addington Will Not be named in any legally incriminating way - no Loyalist will be punished for doing Bush's Contrary-to-Law bidding - all Power is assumed 'inherent,' but it's a Secret that can't be talked about.

(Now we 'know' why Addington kept Clement right where he is, undisturbed - Clement 'holds' a very useful Opinion for Bush and Cheney and All the Loyalists. Clement has bought-in to the UE Rationale that says: Bush's Word is Law - his Word has Primacy Over all other Law. Therefore, when Bush asserts Executive Privilege, it can't be challenged, only 'accomodated.')

The current spoonful that Murky is working on says: If Rove, Miers, Bolten and the Loyalists refuse to comply with Subpoenas [wouldn't this be a slam-dunk under Marbury?] because they have a DoJ Opinion from Clement saying Obeying the UE is most important, then they don't have to comply because that's not the way to resolve this conflict - 'accomodation' (aka 'appeasement' of the UE) is the proper way.

Chew, chew, chew, Mikey - that's going to be a hard one to swallow - said David, but keep on dancing in the meantime, and stick to your lines!

[phred]

rfw, exactly, that's why Kagro is right in his assertion that we will be much much better off without having the Senate sign off on any Bush nominee. DoJ is already broken. We can muddle through the next year or so limping along as we have been, without the Senate giving their seal of approval to the unitary executive theory and torture.

And Kagro, I noticed that when I read Balkin this morning. Tip o' the hat to you sir ;)

[bmaz]

Give that man Kagro X a cigar. And thank you EW; this post is quite right. I, and a few others, have been saying for some time now that the mindless focusing on the single question of waterboarding was just plain goofy. What if Mukasey just duplicitously suddenly did an about face and said waterboarding is torture? Is he good to go then? Of course not. The key has always been that he would protect the Unitary Executive and Fourth Branch with all the illegality that portends. On the issue of the subpoenas, I simply don't understand how Mukasey, or anyone else for that matter, can make that argument with a straight face. The DOJ can't prosecute contempt the Congress has certified as contempt because DOJ said it was ok to start with? WTF? Hello. Anyone over there heard of something called conflict of interest and separation of powers? Jeebus. This is imbecilic.

[Neil]

Mukasey and Contempt... for Congress.

Explain again how an inter-branch dispute about the validity of a President's invocation of executive privilege is tested by #1 discussions between Congress and the executive aka "accomodation" or #2 impeachment but not #3 in the court of law.

This is especially troubling since this president and his DOJ have created a plethera of novel legal opinions to justify programs of questionable constitutionality and chooses to keep them hidden from oversight by invoking executive privilege and national security claims.

Mukasey neglects to recognize that Bush and Cheney chose to enact arguably illegal programs - the legal opinion of OLC or DOJ notwihstanding - without approaching Congress for another form of "accomodation" which we call "LAWS".

[earlofhuntingdon]

Not to kick a dead horse, because the nomination is still pending, but Mukasey's answer about whether the DOJ would enforce Congressional criminal contempt charges ("no"), and his refusal to characterize waterboarding as torture, even though it has been the classic example of torture for several hundred years, are not isolated responses. They are gambits in Addington's three-dimensional chess game. Their purpose is to keep his principals free from legal liability and hard jail time. Full stop.

[FDL cites this excellent article by Sid Blumenthal that elaborates the point. http://www.salon.com/opinion/blumenthal/2007/11/01/mukasey/?source=whitelist]

[nolo]

i think we may all agree that
cheney/bush will never nominate
a truly independent AG -- the
post will forever be beholden
to addington, et al.,. . .

but it is not logical, in the
wider view, to then state the
conclusion that no one should
be put in the seat -- for that
definitively-leaves the DoJ hack-bound.

not that i deeply-disagree with the
bulk of what's been written by any
of the above, but. . .

doesn't anyone here (or at balkin's),
bmaz and kagro x, included, think that
there might be some value to having
mukasey in the seat, if even for a year?

the focus, for me (and by implication,
from some of what EW wrote, in her fine post)
should now turn to the rank and file -- the
career people at DoJ -- the honorable, law-
affirming, principled people -- for whom judge
mukasey might serve as a less-flawed leader, and
protector, than what's-his-name (who is plainly
doing nothing worthwhile). . .

doesn't anyone think that mukasey would, on
balance, offer just-slightly-more than nothing,
to the career prosecutors? could he be of
some (albeit marginal) service to them?

would he be? i think so.

it is a terrible way to pick an AG,
but these are -- in fact -- terrible times.

just my $0.02.

p e a c e

[phred]

I called my Senators (both still uncommitted on the Mukasey nomination) this morning and stressed to both of them that the fundamental problem with Mukasey is his view that the President determines what is legal and what is not. At that point we have no need of the other branches. Even our esteemed lawyers in their letter to Congress yesterday see no need for the judicial branch (brings the total down to 2) and now Mukasey says not really, 1 branch can do it all.

Torture (which involves a great deal more than waterboarding as bmaz notes above), like the Iraq War, and every other abuse of power of this President are merely symptoms, admittedly large-scale and horrific, of the far larger root problem of the unitary executive.

I've said it before and I'll say it again. This nomination is NOT a test of Mukasey's suitability, it is a fundamental test of the Senate. If they approve, the Senate can disband, there will be no further need of them. At least then our functional monarchy will be above board and we can dispense with the illusion of the Constitutional rule of law and elected representation.

[phred]

nolo -- your comment appeared while I was typing my previous one, so let me be very clear in my answer to your question.

If the Senate approves Mukasey they will have explicitly endorsed unitary executive power (and torture). This in my view will make things far worse than the current sorry state of affairs we are already in, because Bush will declare that Congress supports his asserted authority as a result of the confirmation. We have already seen how he has twisted AUMF to mean things it was never intended to mean and used it to assert authority he does not have.

It would be far better to limp along and deny Bush the veneer of approval from Congress he so desperately craves.

[earlofhuntingdon]

Neil's point about the relative importance of the OLC's opinions is a good one. The administration did not engage in the normal, pre-Bush era process of policy formation, inter-agency evaluation and implementation, getting an OLC opinion along the way. That's as defunct as disco; Cheney's too hip for that.

Among other things, that process requires revealing policies in draft form, defending them before critics or enemiese, revising them as concessions to opposing views, implementing them, and periodically reviewing and udpating them. Cheney has spent his career devising ways to circumvent that process; what he's come up with has become the defining characteristic of this administration.

Cheney and a handful of picked aides, including Addington and Libby, first secretly determines what it will do (from invading a foreign country to not issuing a press release when the Vice President shoots someone). Cheney obtains Shrub's witless agreement, often comparing a quick yes over breakfast to having to read reams of reports and officiate at lengthy, contentious meetings. Addington writes the required "OLC" opinions and gets the OLC and/or the AG to sign off on them.

We got a peak at that process in the secretive way the military commissions were set up - circumventing courts martial and the federal courts - to "try" detainees. Only Cheney's office and the DOJ's general counsel (Cheney's man, like Rumsfeld) were in on it; the JAG heads, State Dept., etc., were cut out. Shrub signed off on Chaney's say so, leaving his WH staff gobsmacked.

The process broke down briefly in March 2004, over the issue of illegal wiretapping, when Ashcroft and Comey surprised Cheney/Addington by being the first ones to tell Cheney, "No". It took Addington two months to construct an agreed work around, presumably, with a red-faced Cheney plotting retribution the entire time. It came with the topping of the DOJ's executives and installation of the malleable Alberto Gonzales.

Bottom line. Regarding administraion decision makers, as opposed to CIA field agents, the OLC opinions are window dressing, not the foundation stones on which the administration builds its actions. They hide themselves, their policies and aims, and the identity of Cheney as principal decision maker, behind them. Those opinions should not shield the WH from the consequences of its knowing conduct.

[nolo]

i hear you, phred --

i guess my view is as follows:

the unitary executive theory will last
NO LONGER than january 21, 2009.

by then -- by definition -- we will
have a regime change. it is our
responsbility, and the responsibility
of principled conservatives, to ensure
that outcome -- no unitary executive, from
either side of the aisle.

in the MEAN-time, non-politicized law
enforcement at the DoJ twists in the breeze. . .

i DO think mukasey preferable to what's-his-name.

i also clearly understand the enormous stakes
here -- but i am not (yet) at the point where
i think the future of our form of government
hangs on this one decision. . .

it is a healthy, principled, disagreement we have.

p e a c e

[phred]

Oh I agree nolo, I would never cast aspersions on your views. I don't share them on this particular subject, but I can see your point :)

I just see the precedent as a huge threat. I am not confident at all that the next President will lift a finger to roll back the power asserted by Bush. That's why I think it would be worse for the Senate to give it even a gloss of respectability.

Further, the damage at DoJ is so extensive that I doubt Mukasey will be able to effect much change in a year. It will take a long time to rebuild DoJ. I would prefer its reconstruction to begin on a much more solid foundation than Mukasey will be able to provide.

[nolo]

understood -- and i perceived nothing
untoward in yours, to me. . . p e a c e

[bmaz]

nolo - I dunno. I have been struggling with this question since Kagro posited the "Nobody for AG". I think there are some structural and stability things that Mukasey could accomplish inside the DOJ, which is in desperate need of it. On the other hand, I think that actually reinforces the seed pods that have been planted in DOJ and gives at least some implicit ratification to what Bush/Cheney has done as well as what the Regent/Unitary seed pods want to keep doing. To be honest, on the critical issues that I, and I think most people here, care about, i.e. blowing up the unitary executive BS and restaking our Constitution and other two branches of government to their rightful place, I don't think whether Mukasey is confirmed or not makes much difference; the Bush Administration is going to keep doing what they have been doing, that is all they can do at this point. So, since it isn't really going to help, my inclination is to ride with Kagro and Phred on this one.

[nolo]

cool. i am just interested
in a discussion of the idea. . .

and yes, it was kagro's piece
that set me to thinking. . .

i'm not sure anything will change
@ cheney/bush co., either way -- except
a free, lawful, fair election.

counting the days.

p e a c e

[radiofreewill]

Does anyone know if the SJC can request a ruling directly from the Supreme Court? Can the SJC directly challenge Bush over the Subpoenas using precedents like Marbury (Compelled Service), Nixon (Coughed Up the Tapes), etc?

Nixon, iirc, within days of the Watergate Break-in tried to screen it from investigation using 'National Security' as his reason.

If Nixon, who was -

1) a President at War, and
2) facing Riots and Protest Marches at home by Vets

(this is the summer of '72, before the Christmas bombings)

- could be compelled to surrender the Tapes, and have his Minions testify fully and truthfully to Congress, under subpoena - then why not Bush?

What is SO different now? Except Bush says it's SO?

Let's challenge this flimsy UE Theory in Court!

[tekel]

Radio- the SCOTUS don't do "advisory" opinions. The SJC could sue the Bushies, but it would have to be just like any other lawsuit. And the district court would dismiss on "political question" grounds- Article III courts do everything they can to avoid picking sides between the other two branches.

There is a remedy in the Constitution for a President who violates his oath and ignores the law- and that remedy is impeachment.

[earlofhuntingdon]

The Supreme Court cannot issue advisory opinions, which are general interpretations of the law. It can render opinions only in regard to the facts and circumstances of an actual "case or controversy" over which it has jurisdiction.

That's one reason it is an effective dodge for the White House to inspire the DOJ to conclude that it "cannot" (or will not) enforce Congressional criminal contempt citations against an executive branch actor. That requires the US Attorney for the District of Columbia - a Senate-confirmed presidential appointment and an employee of the DOJ - to go to federal district and enforce a subpoena or take some other action.

In other words, the DOJ will not enforce before the courts Congress' rights vis a vis the executive branch. It will only enforce the executive branch's rights. That's a political play, not required by the Constitution. Congress must be equally willing to play hardball - refuse to confirm appointments, deny funding, launch collateral investigations, or impeach - or it loses out. This and the prior Congress has not had the collective will to enforce its rights.

[sojourner]

Brother Phred, your statement that "If the Senate approves Mukasey they will have explicitly endorsed unitary executive power (and torture)" is outstanding! I wish that I had the money to just buy advertising space in a lot of newspapers to get some pressure on some senators.

On the other hand, I just have to wonder if any of them really care. I know that a few do, because they have already said they will not support his nomination. My own two senators, Hutchison and Cornyn, are so stuck on supporting this president all they do is ask "How high?" when he says "jump."

In a way, I have to join Kagro X's philosophy -- no AG would be better. So long as this administration is in power, our DoJ cannot be repaired to function as it was intended. I read somewhere that the interim chucklehead that Bush named as "acting AG" has no power to really do anything -- and maybe that is how it should remain. Mukasey, once confirmed, can still do damage at the behest of Bush and Cheney.

EW, these have been some excellent pieces you have been writing, and I have really enjoyed reading the discussion. You get my vote for Blog of the Year! ;-)

[earlofhuntingdon]

"... the DOJ will not enforce before the courts Congress' rights vis a vis the executive branch. It will only enforce the executive branch's rights. That's a political play, not required by the Constitution. Congress must be equally willing to play hardball - refuse to confirm appointments, deny funding, launch collateral investigations, or impeach - or it loses out. This and the prior Congress has not had the collective will to enforce its rights."

Congress thereby not only gives up its own power - substituting, instead, party political power - it gives up rights of the citizenry. Which is why it's so important to act by replacing GOP hacks and nominal Democrats with real Democrats who are devoted to Congress, to the Constitution and to those they are employed to represent. Like the president and vice president, they are just public employees on the public dole, goldplated pensions and lifetime healthcare included. The taxpayer ought to get something back besides a thumb in the eye and "just trust me".

[JohnLopresti]

Some of this thread's discussion has parabolized to precisely EW's opening remarks' targeting of Muk as an amorphous respondent in matters of separation between and counterbalances among the three branches of government. When the SJC chair PLeahy's written interrogs pose the problem of Miers Bolten Rove contempt of congress as diaphanous extensions of consultative executive right of privacy in communications, Muk's rejoinders are cites from fractions of a Nixon case.

I continue reading the transcripts and the written replies to interrogs. I wish the committee simply let the written Q+A be on a SJC blog as the universities do in formal adversarial debate layout, as Muk waxes evasive time and again.

On Geneva CA3, signing statements, UCMJ, CSRT composition, and nonbattlefront incommunicado executive detainment Muk repeatedly defers to the ability to ignore other parts of the bureaucracy. EMK's interrogs on Hamdi and the secret memo which just surfaced showing while negotiating MCA the administration was writing a secret cancellation which even preceded the signing statement, illustrate Muk's readiness to take a Comey, Goldsmith, Ashcroft view that it is alright if DoJ can blame some other branch and the comms process, individual rights notwithstanding; in fact, the predictable momentary EMK dwell upon civil rights in the interrog about the outfit Tanner currently is nominated to lead only elicits a kind of JGRobertsJr. paean to the mandate of following law in civil rights as codified forty years ago, but Muk is evasive to the core on how his character of leadership would differ from the kind of politicization and gutting of DoJ effectiveness in the division which monitors civil rights Gonz 'oversaw'. Reading the Groucho post as well as several recent articles by MLed, the whole issue of what happened to whistleblower rights under the aegis of Patriot, and the partyline regimentation of US attys in the 2006 purges clearly are going to be important interstices. I look forward to the next opportunity to read this material Muk and SJC provided, but it sounds like a caretakership in the offing, one which refuses to alter any microscopic brick in the wall of aumf inspired obfuscation coloring this early history writing about the administrations which were Bush2's.

[clbrune]

Nothing to add about Mukasey, I pretty much agree with the thinking here.

It was my understanding that, in terms of parlimentary procedure, Mukasey will come out of the committee with or without its support and then face a full Senate vote; however, someone told me that Sen. Leahy could simply table the nomination. Is that so?

One other point about Clement's opinion piece cited by EW, in which he describes undelegable presidential powers "such as the authority to nominate or to remove U.S. Attorneys." I'd point out that EW said the claim was that the president could *appoint* USA's, but Clement only says *nominate.*

I think the president CAN nominate whoever he wants, but the Congress needs to do the approval/appointing.

[earlofhuntingdon]

I agree that no new AG would be better than a tainted one. As Kagro X and Balkin point out, neither Mukasey nor any other Bush appointed AG will remain untainted. Not a good result, but better than its alternatives, though it's one the Dems would need to sell hard. (Not something they are remotely as good at as the GOP.)

Each time the Democrats are lulled into "cooperating" with this administration, eg, the FISA amendments, they don't accomplish what's publicly intended. They pull another oar in Bush's boat, while Bush refuses to fix the holes below the water line. He just closes his eyes and prays he'll make port in January '09.

Cheney doesn't care, as long as he can shackle the Democratic oarsmen to the oars: if they reach port, the captain takes the credit; it not, the oarsmen drown first. Nevertheless, Rahm Emanuel and his ilk tell themselves that because they volunteer to be oarsmen, they control the boat. I guess they haven't seen that big guy with the whip and the drummer beating out "ramming speed".

[mainsailset]

I have a really stupid question...I hear Bush declaring that he NEEDS to have Murkasy approved...beyond the obvious does this have anything to do with the 45 day approval of Bush's NON FISA wiretaping that was happening in the way back years of Ashcroft/Comey and without Murkasey at the helm we'd have approval coming from an acting AG that hasn't gone through Senate confirmation.

[Kagro X]

radio-

Nixon was compelled to surrender his tapes in the face of a criminal proceeding, brought by a Special Prosecutor. It's an open question whether a Congressional body could make the same demand and be upheld.

earl-

The current US Attorney for DC is not a Senate-approved appointee. He's a holdover PATRIOT Act installation, recently reappointed by the DC Circuit Court (per the provisions of the repeal of that particularly odious PATRIOT Act provision) for lack of any other idea of what to do.

So the guy in charge of prosecuting the contempt charges stemming from the investigation into whether or not the White House controls US Attorneys will be... a US Attorney controlled by the White House.

[oldtree]

It might be worth stepping back for a minute and realizing the man is a criminal if he is nominated by a criminal to protect his regime from oversight. You seem to think that decorum and the rule of law still apply.

Marcy you must get beyond that!

[bmaz]

There is nothing strikingly new, but if you want to see a good judicial view of how we should be applying justice to terror suspects, the op-ed in today's New York Times by Judge John C. Coughenourn from the Western District of Washington is an excellent contrast to that which Bush, Cheney and Mukasey advocate.

[KLynn]

A gathering, a large gathering by the people in order to oppose the SJC vote in favor of Mukasey may be the last, only hope. Right now, the "we tried to give a resonable nominee both parties could go with" pitch by the Prez is humming on the propaganda airwaves. This nominee seems worse than Al G (yes, pond scum inference intentional).

Thanks for the article link bmaz. A great piece which should be the outline for all our letters to the SJC members.

[Lewis Z. Koch]

I have a question about the analysis of Judge Mukasey by emptywheel:where the hell has the press been the last week, the last month, the last six years or so. Well, ok, for the most part it fell on its ass -- we all know the few exceptions: Hersh, Charlie Savage etc. But I would like to think (and perhaps its the drugs I'm taking) that the media might think it's high time for a six or seven year payback. Can you just picture emptywheel proffering this analysis on the CBS News with Katie Couric, or seeing this kind of analysis, perhaps below the fold in the Post or Times.

Maybe this is what might turn dropping circulation around: a hard-ass look at everything and everyone who has had a title in the Bush administration.

[KLynn]

Lewis-

Absolutely! An "it's about time!" would echo across the nation...

[Mary]

I guess with Mukasey in my heart of hearts I feel that he would be much better than Keisler and might make things go a bit better for the Dept, but knowingly or not, Whitehouse really has made it a situation where the whole of the Senate will look - and be - deplorable if they go forward with him, so I'm kind of in bmaz's camp, following along with Kagro and Phred.

My thought from the beginning was that there were deals made and they went something like this: Mukasey was told he would be able to clean some things up going forward, but the price was no prosecutions of anyone for anything done to date and no actions to make anyone liable for things done to date. So his answers line up with that. No word on abuse, waterboarding, etc. bc people have done those things and are criminally liable. His job is to make that go away, while being given the ability to fix things so people aren't getting gold stars for depravity going FORWARD and keeping a "tough" approach.

There was never any doubt in my mind that the biggest part of his job would be clean up for the existing crimes, and you have to adopt the postures and prevent disclosures, etc. to do that, so none of his answers were a surprise. Personally, though, although I might disagree with him about a lot, I think he took the whole thing on with some altruistic motives. I think he does want to clean things up and focus DOJ on actually doing good competent work to strengthen the country and clamp down on the theatre of the absurd aspects.

Given that, it's sad to see that whether he gets out of committee and wins the vote or gets held in committee or loses, he has made his legacy that of being a pro-torture toady. Parsing and clever language aside, there isn't one clear eyed person who will look at his answers now or years from now and know that he isn't answering "to order" with the specific intent of insulating torturers from responsiblity. What horrible thing to tie to your soul.

The sadder thing would be that if he does make it out of committee and survives the vote, Democrats in Congress will have made that endorsement their own as well. They already did that with the MCA, but they will do it much more clearly and specifically now.

The main work accomplished by Congress over the last 6 years has been to unify the rest of the world in a desire to see America fall.

Breaks my heart.

[phred]

Mary, I'm curious how specifically would you imagine Mukasey could improve things? Given his dodge on restoring the elections manual (pop up to EW's next thread), it seems to me that Cheney and Addington are keeping him on a short leash. I really don't know how much he would be able to accomplish even if he wanted to. I don't think C&A would permit any significant changes at DoJ.

[radiofreewill]

The Hoover Building. The day after confirmation.

Stepping up to a mic at the center of the famous shield on the floor, and addressing the assembled employees.

tap, tap, tap...Hands raised to the sky,

"It's a new day!

"The sins of the Fathers will not be visited upon the good sons and daughters of the Department of Justice!

"In fact, I am coming to you straight from the UE, to tell you this Good News! They were never 'sins' to begin with! Otherwise, we would have continue with the painful criminal investigations of the past.

"I'm here, as a member of the President's team, to tell you that All has been Forgiven! No Loyal Justie need ever worry about any 'alleged' wrong-doing from days gone by!

"From this day on, we will go bravely forward, with our heads held high!

"We need never fear doing Wrong again in the future! Nothing done out of Loyalty will ever be punished!

"I am here now, and you are safe."

[emptywheel]

Kagro

Taylor was not just reappointed by DCD--he was lauded in the process. The judges in Prettyman have no doubts about Taylor's value.

Mary

As I've been writing these, I've gotten to where you are. Mukasey would be better than Keisler, much better. But it has become an issue of torture now.

[Mary]

EW - I think that's right and if Reid can't keep his caucus together on torture, it truly becomes difficult to explain why Democrats are worth voting for.

It's a bit more sideways of the topic, but it sure would be nice to have Clement answer two basic questions on his non-delegable front.

1. Are you saying it is the DOJ's position that a USA is a principal officer and not an inferior officer?

2. If this power to remove is non-delegable, then were the 9 or so USAttys that Battle called unconstitutionally removed from office.

President Bush spent a lot of his very early time saying that he didn't know anything about the USAs being removed. Then he came back to claim they serve at his pleasure, but never really got to how Monica Goodling exercises his pleasure for him.

And with regard to 1 - I kind of think they are/should be - - but the only case law deals with an interim USA appointment and oks that being done by the courts on the basis of an interim USA being an inferior officer.

[Mary]

RFW - Brother Mukasey's Travelling Salvation Show?

Waterboard the old ladies and kidnap the babies cuz everyone knows, anything goes, during Brother Mike's shows...

Phred - it's hard to quantify and this is my gut, but I think that Mukasey would not interfere with GITMO detainees rights to counsel they way Keisler will and will not try to overtly and covertly fix those trials so directly. I don't think DOJ attorneys will be asked and required to make so many absurdist arguments, like the arguments made in Padilla's case that Padilla shouldn't be allowed to discuss his own words, given in response to interrogation questions, with defense lawyers bc Padilla had no clearance. Or like the case where the very wealthy pilot challenged having to provide info and the DOJ lawyer represented to the court that there was a "secret" law that had been vioalted and that the court couldn't see the secret law, but it should take DOJ's word for it that the law existed and was being broken; etc.

I think that domestically he would have more pushback against bringing really ridiculous cases, like claims that money going to hospitals is supporting terrorists if the hospitals happen to treat terrorists. I think he'd sit Bradbury down and explain to him that he needs to rewrite his little torture soliciations, although I do think he'd leave loopholes that trucks - trucks filled with stripped, anally probed and drugged, kidnap victims could be driven through.

I think he would try to crack down on NSLs a bit and would restore a focus of trying to actually do things that make sense and are based on a cogent thought process with the resources available and he'd probably put the breaks on petty poltical vendetta lawsuits, to a certain extent but only on an ad hoc basis.

I'd like to think he'd do more bc I certainly think he had the integrity and brains to do more, but I think the deals being made up front pretty much limit his capacity to be a man of integrity and it seems that he's finding the slopes easier and easier to slide down.

[bmaz]

I think thats about right Mary, plus he would give an aura of stability to the career people spread around the country, which is an effect not to be underestimated. However, at this point I am pretty much convinced that the only cleaning up Mukasey could accomplish would be around the margins and, in the process, it further imbeds a bunch of bad stuff and shines things up with a patina of respectability that the seed pods should not have, making it harder in the long run to do the deep cleansing that is really necessary. I am not married to this thought process, but that is where I am currently at....

[KLynn]

Truth is, all of this points to the incredible need to impeach Cheney and Bush...

[phred]

Mary -- thanks for the explanation. I agree Mukasey would be better in principle than Keisler, but I am not convinced that Cheney and Addington would in fact let him accomplish anything of note. Seems to me there are plenty of hacks over at DoJ in place to do C&A's bidding no matter what Mukasey may or may not want to do. Also, given the short period of time, I'm not convinced he will have time to get much done, given the extent of the damage. Plus, if he is unwilling to restore the elections manual, it is unclear how hard he will push to limit political interference in the innerworkings of DoJ.

Ultimately, it comes down to what the Senate is willing to give up in order to obtain, what appears to me anyway, only marginal improvement. While I agree that the confirmation has become all about waterboarding, I believe in the end Bush will make it all about the UE. Mukasey testified that Bush has the authority to determine what is and isn't legal and the Senate confirmed him, ergo... This leads us into treacherous waters indeed.

[herefast123]

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