Mukasey: The Anti-Crony

Here is your new attorney general, the 81st in our nation's history: Michael B. Mukasey.

He's a former federal judge with tons of legal experience and honors but precious little background in the byzantine world of bureaucracy and corporate management; a fellow whom Sen. Charles Schumer (D-NY) evidently admires and whose judicial decisions weren't always in synch with conservative sensibilities; a guy who on his worst day is going to be better than his predecessor was on his best; a bright man who has never been a player on Team Bush.

All in all, you might say he is an anti-crony.

Michael B. Mukasey almost certainly will be confirmed by the Senate with plenty of Democratic support. And he should be. Mukasey may not be a perfect choice for the job -- he's no former deputy attorney general James Comey -- but he is perhaps the best anyone can hope for in this world of divided and divisive government. Let me put it this way: any candidate whose nomination avoids a bitter, protracted confirmation battle in the Senate is all right by me. The the sooner the new attorney general can get to work, the better off we'll all be.

Mukasey is a decorated jurist who did an excellent job presiding over the trial of the blind Omar Abdel Rahman in 1993 and who was unwilling to join the Bush administration's push to deny the so-called dirty-bomber Jose Padilla his right to counsel. Those are three more reasons to consider his nomination plausibly productive.Yes, he's a Reagan appointee and more conservative than some liberals would like. But so what? We all knew the president wasn't going to nominate the head of the ACLU to take over as the nation's chief law enforcement official.

Mukasey may be conservative, but he clearly is not a craven ideologue like former Attorney General John Ashcroft, and he is certainly not the presidential lapdog that Alberto Gonzales always was. Mukasey thus is a perfect "caretaker" official who can begin (over his first and last 16 months in office) to restore moral and integrity to the Justice Department, ravaged by the skullduggery of his predecessor. Federal prosecutors know him and have reason to trust his judgment. As one New York lawyer told me yesterday, Mukasey is a "judge's judge." Former and current government attorneys, believing Mukasey to be tough, demanding and incisive, were said to be "elated" at the choice.

Here's hoping he brings that judicial temperament and objectivity to his new position -- here's hoping, in other words, that he makes the Justice Department once again a haven for career professionals and dedicated nonpartisan attorneys willing and able to exercise judgments independent from the political pressures brought to bear by the White House. Judge Mukasey has a daunting job ahead of him. But the department's road to redemption has got to start somewhere, and it might as well start with him.

By Andrew Cohen |  September 17, 2007; 7:54 AM ET
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So is he going to be a REAL Attorney General, or is he going to be a smiley, palatable front-man while the real dirty work is done by the No. 2, a Gail Norton to some Steven Griles? Is he strong enough to resist the corrupting influence the Bush Crime Family has had on other seemingly honourable men such as Colin Powell? Will he fight to avoid turning over every single letter on each piece of paper subpoenaed by Congress? Will he pull a John Roberts ignoramus act at his confirmation hearings and refuse to provide any information in response to questioning?

I have no idea about any of this, but then, that's not my job to know, it's Cohen's. I will stay tuned. It's like watching a distant train wreck through a telescope.

Posted by: Bukko in Australia | September 17, 2007 10:00 AM

If Judge Mukasey is such a good choice, a man independent of the administration and endoresed by Democrats such as Schumer, why not restrict his tenure to just 16 months. He could be proof of the continued independence and fairness for years to come. It would be better than replacing him just as his policies would be having some positive affect.

As with other key law-enforcement and administrative personnel, perhaps it is time to leave the Attorney General in office for a fixed term. We do this with the Directors of Central Intelligence and the Federal Bureau of Investigation, and members of the Joint Chiefs of Staff.

Since continuity in establishing an administrative recovery of the Justice Department will be critical, why not leave him on for the first year or two, or even three, of the next President's term. Likely that person will be serving on the Judiciary Committee that will consent to his appointment and it would establish a firm foundation for bi-partisan government.

Of course this would simply be a right gesture by the incoming President, as the Attorney General sits at his (or her) pleasure.

Posted by: Constitutionalist | September 17, 2007 10:07 AM

He's a fine choice, I have no problem with him at all, he's got precisely the kind of wide-ranging, in-depth juridical and litigator experience in criminal, civil and high-profile terrorism cases that will be invaluable as the top lawyer at DOJ.

Now that they have a thoroughly competent and professional AG and DAG, they've got one more thing to do: GET RID OF ALICE FISHER, THE ASST. AG FOR CRIMINAL.

After Ms. Fisher is gone, and a truly competent professional with in-depth prosecutorial and litigation experience (qualifications that Ms. Fisher lacks in abundance) is put in her place, the DOJ will be running on all cylinders again.

Posted by: | September 17, 2007 11:44 AM

they finally found him, the one white dude that looks older than Cheney. Hey, Andy, since you like going to jail, why not check out the federal pen at Oakdale, LA? Houses some of the most notorious egos, like Andy Fastow of Enron, former governors of LA and AL and Bernie Ebbers.

Posted by: cd | September 17, 2007 12:06 PM

Where were the people who suggested Judge Mukasey to the administration the last six-and-a-half years? Perhaps if they had been around and spoken up in the first place, we wouldn't be in this mess.

Constitutionalist: One seldom comes across a more unrealistic notion than allowing the AG from a previous administration to stay on for the next one, regardless of whether the two administrations are from the same party. Correct me if I am wrong (and I might be -- I don't have a photographic memory), but weren't you one of the people making the argument that there is no scandal over the US Attorneys because they were political appointees whom the President could fire for any or no reason? How does your present suggestion reconcile with your previous position? What makes it a "right gesture"?

Although you and I disagree on a lot of issues that have been presented on Bench Conference, I am not trying to pull a "gotcha." I would like you to elaborate on the idea and why you think it would solve the problems at the DOJ.

Posted by: Nellie | September 17, 2007 12:06 PM

Well, Nellie that's nice of you, and good luck..

Posted by: Tom | September 17, 2007 12:19 PM

If you say so, Andrew, we'll see. How does one get such specific knowledge of a judge's position and experience, must be a relatively small shop that any lawyer and judge's behavior is known pretty thoroughly (seriously, I mean, no irony)?

Posted by: Bud | September 17, 2007 12:23 PM

I'm sorry, but the Padilla decision disqulifies this nominee. It is simply beyond any reasonable mainstream of American constitutional jurisprudence to hold that the president can throw someone in a dungeon on his say-so alone, and deny the prisoner any right to a trial. The Bushies keep trying to move the mainstream to the right, but this is a bottom line issue of due process. I have urged my senators to vote against this nominee.

Posted by: Seth Miller | September 17, 2007 12:24 PM

So is he going to be a real Attorney General or is he going to be a smiley, palatable front man while the real dirty work is done by Karl Rove, the NSA, the Florida Mafia, the Bush Pioneers (, and domestic Blackwater-type Special Forces that routinely make Nixon and the assassination of Martin Luther King look quaint?

Posted by: Singing Senator | September 17, 2007 12:45 PM

Uh, Seth, before you went running off to complain to your senators about Mukasey, perhaps you should have read Judge Mukasey's recent critical commentary on the Jose Padilla trial entitled:


by Michael Mukasey

Word Count: 2,027

The apparently conventional ending to Jose Padilla's trial last week -- conviction on charges of conspiring to commit violence abroad and providing material assistance to a terrorist organization -- gives only the coldest of comfort to anyone concerned about how our legal system deals with the threat he and his co-conspirators represent.

He will be sentenced -- likely to a long if not a life-long term of imprisonment. He will appeal. By the time his appeals run out he will have engaged the attention of three federal district courts, three courts of appeal and on at least one occasion the ...

It's available by suscription to the Journal:

That puts a bit of a dent in your complaint about the Judge, I should think.

Posted by: | September 17, 2007 12:54 PM

Sometimes I wonder what the Republicans have on Senators like Reid and Schumer. Why they would jump out in front of this nomination is beyond me.
The fact that Mukasey is a Guiliani partisan and that his son, Marc, is a Partner in Giuliani's law firm, (defending white-collar criminals, no less) should make him a no-go from the start, given the suspicions that the Justice Department is trying to purge the rolls of suspected Democrats. That's like giving opposable thumbs and keys to the chicken coop to the fox.
Here's some questions I would ask the nominee were I on the Senate Judiciary Committee:
1. Do you buy into the theory of the "Unitary Executive"?
2. Can the President write signing statements to selectively negate parts of legislation?
3. Will you provide to the Senate requested materials that have to do with the removal of the Federal Prosecutors?
4. How do you intend to deal with attorneys hired by the department as the result of a religious test? Or as the result of a political test?
5. Inasmuch as you support Mayor Giuliano for President, your son is a partner in his firm, how do you propose to avoid the appearance of partisanship in a Justice Department that has been tarred by the taint of corruption?
6. How do you propose to eliminate partisanship from oversight of the election process?
7. Do you believe in the rule of law?

Posted by: capemh | September 17, 2007 02:28 PM

I would like to reply to the anonymous poster who claims that Judge Mukasey's subscription-only article in the Wall Street Journal justifies his decision to uphold the President's claim to have the power to throw people in jail without trial. I'm not a subscriber, however. Please post the heart of the argument, or summarize it. It seems on the face of things that the Padilla verdict undermines the idea that there is any real benefit to allowing the President to throw people in jail without charge. Traditionally, the kind of thing the President and his administration did to Padilla (with Judge Mukasey's imprimatur) has been treated as a serious crime in this country. (see, U. S. v. Price 383 U.S. 787, 86 S.Ct. 1152, in which a sheriff was convicted for holding civil rights workers Goodman, Schwerner and Cheney until the arrival of the Klan). The President threw Padilla in jail and held him there without charge. That was and is a felony, and no judge who justifies it should be put in charge of the Justice Department. Perhaps we should let the following statutory language have the last word:

18 U.S.C.A. § 241

United States Code Annotated Currentness

Title 18. Crimes and Criminal Procedure (Refs & Annos)

Part I. Crimes (Refs & Annos)

Chapter 13. Civil Rights (Refs & Annos)

§ 241. Conspiracy against rights

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or

If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured--

They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.

Posted by: Seth Miller | September 17, 2007 03:07 PM

You are correct about my position that there is no proof that the US Assistant Attorney's were fired for political reasons, but I still believe there was enough smoldering to investigate. I base this more on the quality of the poeple who were appointed in their place than the people left go. I also believe that Mr. Gonzeles was better suited to other career paths than Attorney General, which I hope he will now find.

After finding out how much power US AAs have, I believe they should be term limited to 3 to four years , so I have no problem dumping say 1/4 of USAAs every year to make sure there is turnover that limits the risk of corruption.

Maybe I was being a little disingenuous in today's post, but my point, in case you missed it, is that if the criteria for a good Attorney General is now firmly established as an independent person representing the American people and this gentleman can fulfill that requirement, why should the incoming President be held to a different standard?

Don't forget that the major qualification for Janet Reno was that she was first a woman and second had no children, and therefore no nanny issues. She was an independent and most ineffective person whose tenure resulted in disasterous appointments at the FBI and the shootout a Waco farms. The only reason she stayed on for her full tenure was that no one wanted to give Bill Clinton the AG he wanted.

Also, there is a reasonable belief that if this person is effective as AG, that maybe he should stick around at least until the next President's AG is appointed for continuity's sake. Jimmy Carter would have done will to keep Ford's AG.

So to sum up, I do not expect the AG to survive into the next administration, unless that person's name is Guiliani, but that those who scream independence now will not do so in two years when their time comes. That is why the Washington Post ran the editorial suggesting that the President should not be cowed in whom he (or she) appoints Attorney General.

Posted by: Constitutionalist | September 17, 2007 03:20 PM

To Constitutionalist:

You suggest that the incoming AG's tenure be limited to 16 months.

Attorney Generals have no tenure. They serve at the pleasure of the President, so the new President can and will appoint a new person to the position.

Posted by: Magic | September 17, 2007 03:45 PM

however, I don't see a clear case for the appointment.

Reagan was a puppet, whoever was appointed, was appointed by someone other than Reagan...let's be honest here.

When NIXON was impeached, while trying to take over the government, he showed the people around him, how close he came to absolute dictatorship...they remembered, persevered and built a network of cronys to cook a/the story, and put it into action.

if M. was involved, he was involved. George W., doesn't have an honest bone in him,

it would turn the rest of his bones in...

George W., can not afford to have an honest man on the inside....period.

he's going down, and so is his extended family

on charges.


Posted by: good comments | September 17, 2007 03:48 PM

Meanwhile, Bush appoints Federalist Society co-founder Paul Kiesler as acting AG pending Mukasky's confirmation, so as to hold hostage the SJC's investigation into the state AG firings.

With George W. Bush, the presumption should always be that he's covering up illegality. Mukasky can have all the bona fides in the world, but the real story is BushCo covering up illegalities. Same as it ever was.

Paul Kiel at TPM Muckraker has the goods.

Posted by: former subscriber | September 17, 2007 05:04 PM

Ooops, that was a typo, I was turning a negative into a postive and meant to say: WHY LIMIT THE NEW AG's tenure to sixteen months -- the time remaining in President Bush's term.

My suggestion is that the next President should keep Mukasey on for one, two or three more years if independence is such a virtue. It is somewhat sarcastic, meant to point out how foolish a single qualification, such as independence can be embrased to address an immediate qualification issue.

I do point out at the end of my post that this is not possible because the AG and all other appointed (non-civil service employees) serve at the pleasure of the President.

Posted by: Constitutionalist | September 17, 2007 05:15 PM

For those of us who are not law professionals will you please explain briefly why it is unrealistic to carry over the tenure of the AG from one administration to the next.


Posted by: RonGFZ | September 17, 2007 05:16 PM

God, how pathethic!

Poster "Former Subscriber" talks about "Paul Kiesler"? Who the hell is that, pray tell? You mean PETER KEISLER? A highly respected lawyer, Yale undergrad and law school, not a political type at all, whose tenure at DOJ has been the Assistant AG for Civil for a number of years now?

Uh, that's a ridiculous comment. He is a thoroughly qualified, competent, very professional DOJ official, and has drawn praise for his work at DOJ. He's leaving DOJ very soon. Sheesh!

Posted by: | September 17, 2007 05:32 PM

Will we hear these infamous words? "Your doing a heck of a job Mukasky." The possibility IS there.

Posted by: JD | September 17, 2007 06:34 PM

Shumer recommended him. william Krystol wants him in. He contributed to Lieberman's campaign.
Right away enough to hope and pray, or whatever, that his confirmation fails.
Right away I see a big neocon legal treatise on why we should bomb Iran. It'll be so helpful to Bush and Cheney. And wolfowitz. Poor Iran cilivians.

Posted by: scared | September 17, 2007 07:23 PM

Lame duck President Bush probably realizes that competence trumps loyalty this late in the game. He's frying more important fish in his misbegotten War on Iraq. The U.S. Government works best when its Justice Department is lead by competent authority; not by some stooge from the White House inner sanctum. It would be novel for things to go right inside DOJ during Bush's last few months in office. And such a refreshing change. I hope the nominee is strong enough to resist the perpetual campaign mode style of Bush policymaking.

Posted by: Frank Roberts | September 17, 2007 08:28 PM

"You mean PETER KEISLER? A highly respected lawyer, Yale undergrad and law school, not a political type at all, whose tenure at DOJ has been the Assistant AG for Civil for a number of years now?

Uh, that's a ridiculous comment. He is a thoroughly qualified, competent, very professional DOJ official, and has drawn praise for his work at DOJ. He's leaving DOJ very soon. Sheesh!"

Golly, he went to Yale! Undergrad and law school! He must be just fine then. But rather than impress us with his top-drawer background, what about the points raised by Sharon Eubanks, the prosecutor in the tobacco case, who says Keisler forced her to weaken the fed's case? And what about the fact he headed the administration's team on Guantanamo? Oh, that's right, he went to Yale, must be a great guy.

Posted by: jrw | September 17, 2007 08:59 PM

John Negroponte, Paul Wolfowitz, George H.W. George W. bush, Porter Goss

are all Yale men. They all swallow too.

They don't represent the United States they represent

bushCO and CRONYs.

George H.W.'s father supported the Nazi's to win WW II, Allen Dulles who would go on to head the CIA, hid the funding...

Prescott Bush, the Nazi Collarborator went on to become a senator, George H.W. ejected from his plane over the Pacific on a garbage run in the Pacific, w/o telling the other two people on board that he was leaving...

they are sitting on the bottom of the ocean.

zionists, listen closely, you think the bushes care a whit about you?

you write good. you cover their con job. you are paying their way, and writing their term papers for them....

you are stupid, deluded fools.

deuteronomist gonna get you cooked.


Posted by: hey kiddoes. | September 17, 2007 09:08 PM

If Socialist Chuck Schumer is for Att. Gen. Mukasey, then he's a lousy choice for America.

Posted by: | September 17, 2007 10:33 PM

I will answer for Nellie, and it has nothing to do with the legal profession but politics.

Most Presidents dump the entire previous administration and start anew. That is the point of the election, to bring in a new administration with new ideas. And of course, if you want to implement your policies as President you will want to bring in your own team.

In some situations, e.g., the death of the President or the Richard Nixon exception, cabinet members have remaind in place. But to my knowledge never the Attorney General -- R. Kennedy resigned almost immediately frmo the (Lyndon) Johnson administration.

Posted by: Constitutionalist | September 18, 2007 07:17 AM

Michael Mukasey, The Arbusto Bandido's nominee to be attorney general, is being promoted as a "consensus choice," which is meant to signal the Senate that it should be grateful and confirm him without delay. Mr. Mukasey is clearly better than some of the "loyal Bushies" whose names had been floated (like Ted Olson, whose wife was killed as part of the Pet Goat Lesson as a gift to Ted Olson (Republi-can)), but that should not decide the matter. The Senate needs to question him closely about troubling aspects of his record, and make sure he is willing to take the tough steps necessary to repair a very damaged Justice Department.

Mr. Mukasey has attributes that could make him a good attorney general. He has been a lawyer and federal district court judge in New York, where he enjoys a good reputation. Although he is not divorced from politics (he is on an advisory committee to Rudolph Giuliani's campaign), it is unlikely that he would run the Justice Department as an adjunct of the White House, or a booster of the Republican Party, as Karl Rove did cowering behind Fredo.

Aspects of his record, however, are troubling. As a jude, he was too deferential to the government. In the case of Jose Padilla, who was accused of participating in a dirty bomb plot, he ruled that the president may detain American citizens indefinitely as so-called "enemy combatants." His dangerously narrow reading of the Constitution was rightly reversed by a federal appeals court.

In a 2004 Wall Street Journal op-ed article, Mr. Mukasey denounced the "hysteria" of so-called Patriot Act critics, and lashed out like a frothing wildebeest at the American Library Association for trying to protect patrons' privacy. He also made the highly dubious claim that based on the structure of the Constitution, the government should "receive from its citizens the benefit of the doubt." And writing in The Journal this year, he promoted the truly awful idea of a separate national security court that would try suspected terrorists.

The Senate should question Mr. Mukasey about all of this, and about the government's domestic "spying" assassination program, which has operated illegally, and about which The Fredo Bandido and The Arbusto Bandido has been unable to tell the truth.

Mr. Mukasey also needs to be asked, in detail, how he intends to fix the Justice Department. There is strong evidence that federal prosecutors brought cases to help Republicans win elections and to give Bush Pioneers a business advantage. Mr. Mukasey needs to promise that he will get to the bottom of these matters, and that he will make available the critical documents and witnesses that the administration has withheld.

Mr. Mukasey also needs to explain how he plans to remove the partisan political operatives put in nonpartisan positions under Mr. Fredo and, more broadly, how he plans to restore the department's integrity.

The Father of Evil also announced yesterday that he was replacing Acting Attorney General Paul Clement, who was to serve until the Senate confirmed Mr. Gonzales's successor, with Peter Keisler (Republi-can), a hard-line movement conservative harder than White House spiritual leader Pastor Ted Haggard (Republican), Singing Senator Larry Craig (Republi-can), Senator David Vitter (Republi-can), and Senator Mark Foley (Republican, Florida) combined. Mr. Bush's sleight of hand in installing Mr. Keisler is an unfortunate indication that he intends to keep the department politicized for as long as he can.

Senator Patrick Leahy, chairman of the Judiciary Committee, said yesterday that the Senate would be reluctant to confirm Mr. Mukasey until the White House handed over key documents on issues like domestic "surveillance" (ie; domestic intellectual property theft, domestic unfair competition, domestic persecution and domestic torture). It should be. Senators also need to ask for more information directly from Mr. Mukasey. He may be worthy of confirmation, but the nation can only know for sure after careful, probing hearings.

Posted by: Singing Senator & NYT | September 18, 2007 08:03 AM

If and when Senator Leahy schedules a confirmation hearing, I suspect the nominee is in for a rough ride. Virtually all of the disputes between the Congress and the criminals in the White House have a substantial legal dimension. Surely the nominee will be asked to opine on these matters, indeed to state what he will do about them or at least what advice he will give to Emperor Bush. Probably, he will plead some form of ignorance or prematurity ('I need to study that issue, Senator.') These answers will probably be as acceptable to the Democrats as Gonzales' 'I don't recall my name or date of birth, Senator.' It's unlikely that the hearing will focus on Judge Mukasey himself, but rather on George W. Bush/Dick (so perfectly named) Cheney and their actions, their policies, their philosophy of government, a form of neofascism. If Mukasey defends these guys, should he be confirmed? If he pleads ignorance or prematurity, can anyone be sure he doesn't sing from the same hymnal as Bush and Cheney. Senator Schumer's support notwithstanding, I'll be very surprised if this is an easy confirmation. Bush and Cheney have simply created too many explosive but legitimate legal issues that are proper subjects of questioning for any nominee of theirs for the top legal job in the country. Let the games begin.

Posted by: P. Bosley Slogthrop | September 18, 2007 08:54 AM


To supplement Constitutionalist's response, it goes beyond mere "politics." The Attorney General is a Cabinet-level position. I can't think of any President that did not appoint his entire Cabinet anew when he took office from the previous administration. No one would argue that the next President should keep Condi Rice as Secretary of State. It is just as unrealistic to suggest that some other Cabinet member should hold over.

Posted by: Nellie | September 18, 2007 11:32 AM

Thanks for the answers.


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