Mukasey will be a weak attorney general.

The law, lawyers, and the court.
Sept. 19 2007 5:55 PM

Mukasey's Not the Man

He'll be a weak attorney general.

Michael Mukasey. Click image to expand.
Michael Mukasey

Michael Mukasey, President George W. Bush's nominee to be attorney general, is destined for capture by the White House. He will prove a reliable echo of the monarchlike theory of government celebrated by Mr. Bush and Vice President Dick Cheney. The attorney general-designate lacks the independent political base, national stature, or philosophical convictions necessary to resist the inevitable White House clamor to subordinate the Constitution to expediency.

The example of President Bush's current White House counsel, Fred Fielding, who had replaced the readily forgettable Harriet Miers, is instructive. Mr. Fielding was a seasoned lawyer in private practice who had displayed commendable common sense and measured judgments as White House counsel under President Ronald Reagan from 1981 to 1986. Before he returned to that position for President Bush last January, Fielding was touted as someone who would soften clashes with Congress with deft compromises that balanced competing constitutional interests. That expectation has been unfulfilled.

Advertisement

For months, the House and Senate judiciary committees have sought the testimonies of former White House officials Karl Rove and Ms. Miers in investigating the firings of nine United States attorneys. The hearings are focused on, among other things, potential perjury or obstruction of a congressional investigation by then Attorney General Alberto Gonzales, and possible White House orchestrations of voting-fraud prosecutions to favor the Republican Party.

Mr. Fielding rebuffed the committees with proposals and arguments that would have embarrassed even the Nixon administration. He initially proposed that the two be interviewed not under oath and without transcription. He later blocked their appearances by asserting inherent presidential power to prevent current or former White House officials from testifying about presidential communications. According to this argument, President Nixon could have prevented former White House counsel John Dean from testifying about Oval Office conversations that implicated the president in the Watergate cover-up.

Power and prominence—two of the most raging passions of human nature—have compromised Mr. Fielding's fidelity to the Constitution. Mr. Mukasey will prove an equally pliable instrument of the White House. President Bush is doing him a favor by elevating him from obscurity to attorney general. And political debts are invariably repaid. Thus, former Secretary of State Colin Powell overcame personal scruples to do the president's bidding over the war in Iraq and torture.