Caretaker for the Regime

Carrie Johnson’s got an interestingly-timed profile of Michael Mukasey today. She accurately describes Mukasey as trying to, above all, just get to the end of the term with no big new scandals erupting.

From a book-lined den on the fifth floor of the Justice Department, the attorney general is watching the clock.

Tenure, after all, is short for Michael B. Mukasey, a retired federal judge who has just six more months to restore confidence in a department battered by allegations of improper political meddling before time runs out on the Bush administration.

Mukasey is one of several elder statesman who accepted the president’s request to rejoin government late in the second term, only to confront increasingly intense political battles and the detritus left by their predecessors. Yet, unlike Michael Hayden at the CIA and Robert M. Gates at the Defense Department, Mukasey has complicated his task with his steadfast refusal to reopen old wounds and purge the ranks of his roiled department.

Senate Judiciary Chairman Patrick J. Leahy (D-Vt.) recently appraised Mukasey as "content to serve as a caretaker for the regime of excessive executive power established by the Bush administration."

As Democratic lawmakers and White House officials tangle over how actively investigators should explore the past, the attorney general generally has sided with the administration and declined to open criminal probes on matters that predate him.

In the past month, Mukasey has rejected requests to name a special prosecutor to examine whether Cabinet officials committed war crimes when they approved harsh interrogation tactics for terrorism suspects. He refused to take a second look at a public corruption case that 52 bipartisan state attorneys general say smacks of selective prosecution. He refrained from characterizing the department he joined last November as torn apart by partisan discord even though more than a dozen officials, including his forerunner, Alberto R. Gonzales, departed amid a politically charged firing scandal.

I say this is interestingly-timed because most of the stonewalling she lists are the same things Democratic Senate Judiciary Members listed a few weeks back when Mukasey testified before the Committee: torture, Siegelman, the politicization of DOJ (she missed John Yoo’s OLC opinions). But that was then, this is now, and in the interim two weeks, two conflicts have arisen, which both threaten to make Mukasey the point of controversy, rather than the guy trying to tamp it down.

First there’s the matter of Karl Rove’s invocation of absolute immunity. The danger for Mukasey with it is not his involvement. Rather it’s the apparent lack of any involvement from DOJ leading up to Rove’s extraordinary snub of Congress. As I’ve explained, it appears that, rather than having DOJ complete a review of whether Rove had any legal claim to invoke this absolute immunity bullshit, Fred Fielding simply dug out a memo pertaining to a completely different subpoena and used it to claim that the White House had cover from DOJ in advising Rove to blow off Congress. Now, given Mukasey’s stated policy about enforcing contempt from Congress–that is, that he would not refer contempt to DC’s US Attorney so long as the invocation of privilege relied on an opinion from DOJ–he ought to be willing to enforce contempt in this case. After all, the White House has no advice (or has hidden any advice) from DOJ analyzing this instance and asserting that Rove was, in fact, eligible to invoke immunity in this situation. And if Mukasey tried to claim he was okay with Fielding pretending a memo from last year could apply, with no further analysis, to the subpoena this year, then he would then have to buy off on the dangerous claim that it was Karl Rove’s "official duty" to conduct witch hunts against Democrats. Mind you, I don’t doubt that Mukasey will still try to find a loophole to prevent DOJ from arresting Karl Rove. But any possible loophole will have some increasingly dangerous possible repercussions.

And then, last week, Mukasey rather ridiculously begged Bush to invoke executive privilege over Cheney’s FBI interview report, basically asking Bush to obstruct justice again so that Mukasey did not have to risk jail time in his efforts to prevent us from learning whether or not Cheney admitted to ordering Libby to leak Valerie Wilson’s identity. While it appears that Oversight has no business meetings scheduled anytime soon at which it could vote to hold Mukasey in contempt, Waxman did prepare a contempt report that would be ready at hand any time he wants to hold that vote–effectively a metaphorical loaded gun placed in plain view to facilitate further negotiations with Mukasey (No, I don’t mean that to suggest Waxman’s going to use violence–more that he’s using the report to increase the tension behind the negotiations).

Now, as I noted, Johnson’s profile of Mukasey is rather interestingly-timed. That’s because (as she notes) Mukasey’s got a date with HJC on Wednesday. Given that HJC has issued its own subpoena for Cheney’s interview report (using a much stronger legislative rationale than Waxman has used), and given that HJC is almost certainly going to be quicker to hold its contempt vote for Rove than Oversight will be to hold its contempt vote for Mukasey, I would expect Mukasey to have to take some heat on both of these issues on Wednesday.

Who knows how effective that heat will be. But there’s the distinct possibility that by Thursday, Mukasey will become an active player in Bush’s swamp of scandals, rather than just the guy preventing them from blowing up.

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  1. MarieRoget says:

    Good morning, ew, & welcome back from NRN. Looking forward to a bit of the lowdown on how yr. panels went in Austin, if you are so inclined.

    Re: HJC appearance by Mukasey on Wed.- a tightly controlled hearing in which the Repubs are curbed in their attempts @ interrupting the proceedings & running out the clock (the last one goes for AG MIke as well) would be helpful.

    That, and something I always wish for over @ HJC- a coherent game plan on how to proceed w/the questioning.

  2. DeadLast says:

    Good post. I hope Mukasey rots in retirement — stewing over how he was blindsided by BushCo, and then eternally regretting that the Mighty (mu)Kasey letting two bush-league strikes come across the plate before striking out on his own.

    I bet he thought being IG for a few weeks would give an old man the illusion of having led and honorable life.

  3. obsessed says:

    At this point I have less respect for Mukasey and Schumer than for the criminals they’re protecting. Rove is openly and gleefully thumbing his nose at democracy. The other two have sunk irretrievably into base hypocrisy.

  4. GeorgeSimian says:

    I still find it mindboggling that Mukasey said that he didn’t think it was a good idea to even interview Rove about the Speigelman investigation. How can that be?

  5. GregB says:

    Mukasey will retire in shame and scandal.

    Hopefully he’ll get a drink or two tossed in his face.

    -G

  6. yellowsnapdragon says:

    Thanks again to DiFi for giving us such valuable leadership. Mukasey has been a real gem./s

  7. Peterr says:

    She accurately describes Mukasey as trying to, above all, just get to the end of the term with no big new scandals erupting.

    The same can be said for the organizers of the Tour de France.

    I’d say the TdF folks have a better chance of making it to the end safely than Mukasey.

  8. danps says:

    Great post Marcy. Congrats on the MTB appearance too – I enjoyed watching it. Why didn’t you say “pissed” a few times? :p

  9. merkwurdiglieber says:

    We can all give thanks to “Chuckie” Schumer and DiFi for their buddy
    Mukasey… remember DiFi bellowing about her contempt for the lefties
    who would not be satisfied with the sweet deal she and Schumer made
    with their old friend Holy Joe for his roommate as AG? The democratic
    establishment must be thinned out for any real change to be made.

  10. skdadl says:

    Mukasey’s caretaking/stonewalling is the major problem, and if the congresscritturs are paying attention to you, EW, maybe his tactical weakness.

    In the back of my mind, I’m also bothered by the few things he seems to be doing actively, which Johnson also summarizes:

    But Mukasey appears to be judging himself on a short list of his own criteria. They include passage earlier this month of an overhaul to a “vital” eavesdropping law, along with developing a soon-to-be-released plan for handling the legal claims raised by detainees at the U.S. military facility at Guantanamo Bay, Cuba, and guidelines for how the FBI conducts terrorism investigations.

    I had just finished reading the DoJ OIG’s report on the FBI’s responses at and to GTMO and other overseas sites when we read that Mukasey had undertaken to rejig the FBI’s orientation from criminal investigation to intelligence-gathering.

    That really bothered me, since we seem to have a lot of evidence that the FBI is one of two entities (the other being the JAG corps) who from very early on were asking the serious ethical, professional, and legal questions about the detainee system and the shift from evidence-gathering to poking about for intel. Our CSIS and DFAIT sure don’t appear to have behaved as well or to have asked such questions when they’ve been slotted into DoD interrogation processes much as the FBI were (Khadr).

    We’ve seen what happens when a well-trained police force (the Mounties: Arar) get carried away with the idea that they are doing sexy counterintel. They make ego-driven mistakes is what they do. And just about every other U.S. agency has done some of the same — except the FBI (more or less).

    Mukasey seems to be saying that the FBI is the one agency that ain’t broke yet, so he’ll fix that. Is that how others read him? I think this is a bad plan.

  11. FrankProbst says:

    Who knows how effective that heat will be. But there’s the distinct possibility that by Thursday, Mukasey will become an active player in Bush’s swamp of scandals, rather than just the guy preventing them from blowing up.

    I think Mukasey became an active player when he asked Bush to invoke privilege on the FBI report.

    As to why no one else in the DOJ has issued an opinion protecting Rove: I would guess that they asked for volunteers, and no one wanted the job. David Iglesias is saying that Rove got him fired, and Pat Fitzgerald is saying Rove tried (and failed) to get him fired. No one in their right mind wants to get between Rove and the firing squad right now.

  12. bmaz says:

    And then, last week, Mukasey rather ridiculously begged Bush to invoke executive privilege over Cheney’s FBI interview report, basically asking Bush to obstruct justice again so that Mukasey did not have to risk jail time in his efforts to prevent us from learning whether or not Cheney admitted to ordering Libby to leak Valerie Wilson’s identity.

    Boy howdy. And solicitation of obstruction of justice is pretty much exactly what this amounts to. Privileges exist and reside in the individual holding the privilege, not others, and not third parties. It was unseemly, and quite arguable improper, for Mukasey to have made this demand. He ought to be placed in the Congressional butter churn; of course, he should have any number of times already.

    • Citizen92 says:

      I don’t get about Mukasey’s self-serving letter to Bush last week. I say self-serving because the release of it pretty much blows up the privilege.

      This Administration fights tooth an nail to “protect” documents, emails and conversations generated the so-called deliberative process that informs/advises Bush to make his decisions.

      Yet, with that letter, Mukasey put the deliberative advice into an e-mail and then released it… or it was released. (I’m not clear if Waxman released it to spite Mukasey, but if that was the case we should have heard loud protests from DOJ and the WH… anyway…)

      Why is that type of “advice and counsel” to the President contained in the letter acceptably public while so much else is not?

      • LS says:

        Heh!!

        Exactly!!! Muccus Membrane is a bonehead. Here he is giving direct “advice” to POTUS claiming any advice to POTUS is EP…yet making it public…Accidentally..or on purpose???

      • PetePierce says:

        Because they don’t give a rat’s ass. You are in a minority sliver so tiny here it’s not going to make an impact on any of them, although the hard work and brilliant blogging here does serve the purpose of providing education and discussion for the small number of people that value it.

        You live in A-Rod Madonna America. No one I asked from any demographic background had a clue about FISA the day the Senate straddled you and pissed all over you and your former Fourth Amendment right.

        As long a people remain ignorant, this will flourish, remain viable, and robust. The political campaigns are cynically crafted on the platform that the people are stupid, indifferent, and lazy, and most of them are despite the jingoistic bullshit about how bootstrappy and hard working Americans are.

  13. BillE says:

    Mike Mukasey to his eternal shame is the guy who let them do Padilla. And a ton of bad immigration cases post 9-11 to boot. He is a true believer, he just was already sitting on the bench when it started.

    Is there any doubt he has always been an active player. I think setting arbitrary timelines in his AG career step misses the point.

  14. ally says:

    Incredibly disgusting behavior by Mukasey and such a huge disappointment to the concept of justice. I am sure he was promised $$millions to keep hiding the corruption of this horrible administration.

  15. LS says:

    I found it really interesting that no one claimed executive privilege when Feith testified….when asked who was at the NSC principles meeting, he went right ahead and said that W chaired the meetings and went on to say who was in the meetings…and what was discussed. Why wasn’t the WH or DOJ screaming over that??? When Ashcroft was testifying, he claimed EP over those exact same questions over and over.

    My take is that the WH is “selectively” obstructing justice for those that are most vulnerable to serious consequences in all areas…It is curious that Feith could testify about torture policy quite freely, but Rove cannot be allowed to appear over the politicization of….America. Karl’s permanent republican majority smacks of “overtaking the government”, i.e., a soft coup of the entire nation….that’s pretty treasonous. Protecting Ashcroft and not Feith, is perhaps related more to Ashcroft as being part of the politicization plan in the end (or from the beginning…), rather than protecting him from speaking out about the other issues. JMHO

  16. PetePierce says:

    In the first place, two democratic Senate Judiciary committee members who often show quintissential flashes of stupidity Schumer and the collosally moronic Feinstein helped confirm Mukasey.

    In the second, the good news is the asshole won’t be returning to the Bench, he’ll take all the crimes he covered up back to the hail fellows well met at good ole Patterson Belknap Webb & Tyler.

    I don’t know how anyone who knew a scintilla about Mukasey’s conduct on the SDNY bench would have expected anything different than behavior right out of the script of Soprano’s consigliere Sylvio Dante.

    It always amazes me when progressive bloggers continue to expect DOJ to follow the Rule of Law as if the Deppartment of Justice had anything remotely to do with the Rule of Law.

    Here’s how it is: DOJ is the Star Chamber’s instrument to get done what the monarchy wants. People can ramble on about democracy and blah blah and yada yada and yada, but that’s the way it is in the Bannans Republic US.

    The “people” who are collosally stupid and lazy are getting precisely the Rule of Law and Democracy they deserve. DOJ solely exists to protect law breaking on a collosal scale. Former AGs get ridiculous millions for doing nothing but hall monitering companies who broke the law and have DFAs (Deferred Prosecution Agreements). See Ashcroft John.

    Some little schnook who grew up on BET Hip Hop videos gets busted and does 10-12 years for a first time cocaine charge.

    Rove, and the people Jean Mayer chronicled in her book and Glenn Greenwald chronicled in his, get richer and live the good life via speaking engagements and idiot newspapers and magazines, or network shills dumb enough to pay them.

    See FOXNewsweek, Wall Street Journal.

    No one should expect a shred of integrity from DOJ, the Attorney General or personnel at Main Justice anymore. That was way back in the day, well before Christy or LHP dakrened the doors of DOJ.

  17. skdadl says:

    NB: The Hamdan trial begins today, which is a historical marker of a grisly kind.

    Actually, Rosenberg’s text from yesterday is mostly the same but fuller. That’s where you get this entire statement from the DoJ lawyer “on loan” to the prosecutors:

    But a prosecutor on loan to the war court from the Justice Department, John Murphy, says ”enemy combatants” don’t get read a so-called Miranda warning, like criminal suspects do on U.S. soil.

    ”We don’t conduct wars the way the local police investigate crimes,” he told the judge, Navy Capt. Keith Allred. “We’re catching people on the battlefield. Do we really want to put Miranda cards in the pockets of [U.S.] Special Forces? Does that make us safer? In this war on terrorism on Sept. 11, the battlefield was New York City and it was Pennsylvania and it was Washington. The battlefield was wherever a terrorist attack was occurring.”

    To me, that is not a legal argument; it is a political statement. It is sad and scary to see this happening.

    • bmaz says:

      I dunno, strictly as to whether Miranda advisory is required in these detention situations, as a stand alone question, I agree with the government on that; not required. Pains me to do it, but there you have it.

  18. LS says:

    Regarding “Emma” comment #3 in the previous thread…the link to Atkinson’s article is very difficult to find, but I found the text via Yahoo. Here it is, in case anyone is interested in reading it:

    http://rationalwiki.com/wiki/Philip_Atkinson

    Snip:

    “However, President Bush has a valuable historical example that he could choose to follow.

    When the ancient Roman general Julius Caesar was struggling to conquer ancient Gaul, he not only had to defeat the Gauls, but he also had to defeat his political enemies in Rome who would destroy him the moment his tenure as consul (president) ended.

    Caesar pacified Gaul by mass slaughter; he then used his successful army to crush all political opposition at home and establish himself as permanent ruler of ancient Rome. This brilliant action not only ended the personal threat to Caesar, but ended the civil chaos that was threatening anarchy in ancient Rome – thus marking the start of the ancient Roman Empire that gave peace and prosperity to the known world.

    If President Bush copied Julius Caesar by ordering his army to empty Iraq of Arabs and repopulate the country with Americans, he would achieve immediate results: popularity with his military; enrichment of America by converting an Arabian Iraq into an American Iraq (therefore turning it from a liability to an asset); and boost American prestiege while terrifying American enemies.

    He could then follow Caesar’s example and use his newfound popularity with the military to wield military power to become the first permanent president of America, and end the civil chaos caused by the continually squabbling Congress and the out-of-control Supreme Court. “

    • BayStateLibrul says:

      All Gaul is divided into three parts, from Latin 101?
      The Kurds, the Sunni and the Shiites…

  19. JohnLopresti says:

    Scott Bloch is caretaking neutralizing* the Special Counsel outfit, as POGO complained last week. OMB and OIRA are coordinating both cabinet and executive agencies to obstruct EPA from implementing new greenhouse-gas-attuned** clean air regs, which EPA has announced itself it plans to ignore.

    Mukasey’s tack fits the administration’s voyage plan, Bush’s rearguard.
    ___
    *v.Friday July 18, 2008 article; readonly blogsite apparently uses no permalink.
    **v.Monday July 14, 2008 article; scrolldown, permalinkless site. They link to a nice GSA library of sham letters from all the herd of agencies which intend to obstruct EPA in EPA’s fictional effort. The July 10, 2008 suite of letters are revealing and all linked on that page.

    • readerOfTeaLeaves says:

      They link to a nice GSA library of sham letters from all the herd of agencies which intend to obstruct EPA in EPA’s fictional effort.

      Words. Fail. Me.
      Thx, JohnL.

      sighhhhhhh….

  20. Arbusto says:

    Why would anyone in this Regime tell the truth or submit incriminating documents? Little or no information comes from committee hearing because the GOPers like Issa and King disrupt the proceedings (no sanctions) or ask lengthy softball questions while Regime lackeys run out the clock with non-answers. It’s shameful that the populous isn’t up in arms demanding accountability and that we will have to rely on foreign tribunals to conduct war crime hearings. Even if convicted in absentia, the U.S. will not allow extradition, and The Powers That Be will do nothing to bring any perps to trail or restore our lost civil liberties.

  21. FormerFed says:

    Folks, much as I would like to see some real progress on justice for the Bushies, I am convinced that nothing of consequence is going to happen until the next administration. The Demos are part of the problem – just look at the HJC hearings and how unorganized and haphazard they have been and probably will continue to be.

    What concerns me more and more is that very little will change under a new administration and a new Congress. I see a big broom sweeping through DC, but it will be sweeping all this filth under the rug, not into the light of day.

    Sure hope I am wrong, but…

  22. JLML says:

    Marcy can you walk us through the events in Ohio last week with regard to the RICO investigation naming Rove as both witness and defendant in a vote stealing conspiracy?

  23. Leen says:

    Mukasey wants to “get to the end of the term with no big scandals erupting”.

    Pathetic that this is the focus of the AG. Pathetic!

  24. Leen says:

    Mukasey = “caretaker for the regime”

    Mukasey = Undertaker for Justice!

    Thanks Schumer and Feinstein