Confirm First, Fight Second
It's not hard to understand why some Senate Democrats are threatening to condition Michael B. Mukasey's confirmation as attorney general on release of more information about the U.S. attorney scandal and the Justice Department's role in the National Security Agency's domestic surveillance program. With an arrogance that borders on taunting, Bush administration officials have refused to answer legitimate questions about the brutally incompetent era of Alberto Gonzales at Justice. And, with a Mukasey nomination pending, the Dems figure they have as much leverage, as much bargaining power, as they will ever have against this White House.
But linking Mukasey's job with the executive privilege fight is short-sighted. There are other ways the Democrats can press their case to get the information they want and deserve -- like taking the White House to court and letting federal judges sort out the executive privilege claims. Meanwhile, it's imperative that Mukasey be allowed to begin restoring legitimacy to the Justice Department (and the rule of law) as quickly as possible.
Sen. Patrick J. Leahy (D-Vt.), chairman of the Senate Judiciary Committee, articulated the Democrats' thinking yesterday: "All I want is the material we need to ask some questions about the former attorney general's conduct, on torture and warrantless wiretapping, so we can legitimately ask, 'Here's what was done in the past, what will you do?' "
Reasonable enough, right? In a perfect world, Judiciary Committee members could have a frank conversation with Mukasey about some of his predecessor's poor choices and the utter lack of judgment demonstrated by the Justice Department under him. In a perfect world, Mukasey would know enough about what went on behind the scenes during the prosecutor purge to be able and willing to pledge that he will not only avoid Gonzales's mistakes but take affirmative action to correct them.
But the world is not perfect. And nothing in the history of this presidency suggests that Bush administration officials -- the folks who popularized unitary executive theory and brought us the most power-seeking presidency in a generation -- suddenly are going to sing Kumbaya and come clean on how and why those U.S. attorneys were fired or how and why White House lawyers tried to pressure an ailing John Ashcroft to sign off on a constitutionally questionable spying program. If that cooperation happens, it's going to happen by court order.
The attempted "linking" through political pressure will not work. It will serve only to delay Mukasey's confirmation. If the Democrats believe they have a right to that information -- and they should -- they should put their lawyers where their mouths are and see what the federal judiciary has to say about the matter. That's a battle worth fighting -- once Mukasey is doing his thing at Justice.
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