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.

By Andrew Cohen |  September 18, 2007; 8:00 AM ET
Previous: Mukasey: The Anti-Crony | Next: Get It Right This Time on Habeas Rules

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>>> 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.


Yeah, and the court will settle this when? By late 2009?

Posted by: | September 18, 2007 10:59 AM

What? Nothing about Bill Lerach?

Maybe tomorrow.

Posted by: Nellie | September 18, 2007 11:36 AM

Mr Cohen- Have you been made aware of some allegations regarding Atty Rachel Paulose of Minneapolis? I understand the case is built at a blog called ericblackink.com. He's more a journalist than a partisan hack, which implies to me that there's fire behind the smoke...

Posted by: bsimon | September 18, 2007 11:38 AM

Cohen, why do you not lay out the resume of Mukasey for all to see? Why nominate an Attorney General that nay try to block Congress's attempt to get the TRUTH?

Posted by: ghostcommander | September 18, 2007 12:00 PM

Why are there so many bitter conspiracy-phobes on this blog? Sheesh!

And I agree with you, Cohen. One of those rare times.

Posted by: | September 18, 2007 12:20 PM

I agree with Cohen on this one. Nobody wants to see Gonzales indicted and the Bible college milky children sent back to their home towns more than I do but the disarray at DoJ has to start to mend.

Posted by: Chris Fox | September 18, 2007 12:43 PM

Let me second Nellie's recommendation for an expose on class action. Once the battering ram of justice for the disenfranchised, it has become the the piggy bank for barristers to crack open and line their pockets.

FYI, I am still waiting for my quarter of a DVD in compentation from Netflix.

Posted by: Constitutionalist | September 18, 2007 03:50 PM

Constitutionalist:

And I still have a voucher for a free oil change from a car dealer in Chicago that arrived after I had moved to Minneapolis.

Class actions have a legitimate purpose -- something other than making sure the Bill Leraches of the world can afford that second vacation home in the Hamptons. Yeah, the lawyers have to get paid, but settlements that provide useless oil change vouchers or a fraction of a video rental to the class members while the attorneys pocket millions border on the insulting. Such "settlements" are illusory.

And now for full disclosure: I have worked on 10b-5 actions opposite the Milberg Weiss Firm. So take my opinion for what it is worth.

Posted by: Nellie | September 18, 2007 05:19 PM

CONFRIM FIRST, ASK QUESTIONS LATER?
I don't think so!

Everyone Bush has ever appointed to anything has been either incompetent or crooked (or both). Mukasey is apparently considered to be quite competent, ergo if Bush is willing to nominate him, then chances are good he is a crook.

Democrats confirmed Gonzales against their better judgment and the country paid the price.

So I can't think of anything that would be dumber than saying, Come on, we need to hurry up and get us a new AG.

Posted by: Jim | September 18, 2007 05:26 PM

Geez, Mr. Cohen, why not just tell Leahy to give up his committee's quest for the documents? I'm no historian but I find it hard to believe there has ever been an American president with more contempt for Congress than King George IV. Congress has been almost totally feckless in combatting the King's FU attitude. Going to court is playing King George's game. The process would play out for years, ending up before the very court that made George the king in the first place. The Judiciary Committee will never have more leverage than they do now or perhaps a better argument of need for the documents not just for oversight purposes but for preparation for the confirmation hearing. I agree with you more often than not, Mr. C., but the Congress and the Judiciary Committees have spent more than enough time bent over at the hips before His Highness. It's time to stand up, turn around, and lean back. Judge Mukasey may be a pretty good AG (who knows) but I doubt that the government will get a whole lot worse than it has been for the last almost 7 years if he isn't confirmed. The greater danger to the Republic is that the Bush/Cheney years will have established for decades the primacy of an imperial presidency and a wholly subordinate role for the legislative branch. It reminds me of the historic role of 'the laity' in my church: to pray, pay, and obey. I shudder at the thought of the Congress becoming permanently merely a docile flock, following the good shepherd, now to be known as 'the Decider', in the White House. Fight back, Leahy.

Posted by: P. Bosley Slogthrop | September 18, 2007 09:05 PM

I feel that Cohen has always been clear-headed and can postulate the point much better than I can.

But I have to agree with Jim, P.Bosley and others who aver that the confirmation committee must stand firm and demand answers before confirmation.

It is folly to think this administration would let somebody step in that would allow Waxman, et al, to find out all the gory details. Recent events have proven that this administration has much to hide. Kronegard.

While the nominee may not have any KoolAid-drinking tendencies on record, the country simply cannot risk that he isn't just another Cheney azz-wiper wholly committed to this so-called unitary executive fallacy.


Checks and balances.

Of the people, by the people, and for the people.

Posted by: Pancho_Lopez | September 18, 2007 09:31 PM

How exactly will they get into court. The WH has made fairly clear they will not let the USA for DC prosecute a contempt charge. Inherent contempt is perhaps possible but has not been used for a long, long, long time. Seriously then, how are they going to get it into court? If you can answer that, I would agree with your proposal.

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