Michael Mukasey tells the Senate to let bygones be bygones.

The law, lawyers, and the court.
July 9 2008 6:42 PM

"You Remain an Enigma to Me"

And other responses to Michael Mukasey's trip to the Senate.

Michael Mukasey. Click image to expand.
Michael Mukasey

When Michael Mukasey was a judge, he knew how to punish people. He meted out stiff sentences to criminals and once ruled that the federal sentencing guidelines were unconstitutional because they limited judicial discretion.

But now that he's attorney general, Mukasey doesn't do punishment anymore. Not inside the Justice Department, anyway. He moves on. The U.S. attorney firings and the torture memos and the politicization of the hiring process for young lawyers (for  summer interns, even!)—all of that happened during former Attorney General Alberto Gonzales' watch. That means that in Mukasey's eyes, it's ancient history. Not worth dredging up. Certainly not worth firing or even disciplining anyone over.

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And so Mukasey determinedly concentrated only on the future in his appearance Wednesday before the Senate judiciary committee. "I detect a very pronounced reluctance on your part to look backward at the problems of the Department of Justice," Sen. Sheldon Whitehouse, D-R.I., burst out after several rounds of questioning. Whitehouse pointed out that the past matters for the subjects of DoJ investigations that may have had partisan origins. It matters because of the continuing legal force of opinions, written by the department's Office of Legal Counsel, that pump up the power of the presidency and may well authorize harsh interrogation tactics. (They're secret, so we don't know exactly what they are.) And it matters "because people hired pursuant to politicized processes are still there, in those jobs."

And so, Whitehouse concluded, "it's very important that we be prepared to look backward, to clean up."

But Mukasey didn't want to look back, and he definitely didn't want to be a janitor. He'd rather be a steward. He's protecting the department he was given, not cleaning house. "Did you find the department politicized when you arrived?" Sen. Joseph Biden, D-Del., asked Mukasey. Hell yes, it was a madhouse, the attorney general might have answered, in light of the report about illegal hiring practices issued in late June by the DoJ's inspector general and Office of Professional Responsibility. DoJ hiring standards promise that job applicants for career positions won't be discriminated against on the basis of "political affiliation" or "politics." Yet in the 2002 and 2006 hiring seasons, the DoJ rejected many more applicants to its honors program, the entry point for young lawyers, when they had liberal signposts on their résumés (environmental advocacy, membership in the American Constitution Society) than when they had conservative markers (property-rights work, membership in the Federalist Society). For highly qualified applicants with high grades from top-ranked law schools, the difference in 2006 was 35 liberals rejected compared with one conservative.

But Mukasey didn't want to talk about any of that. "Did I find it? The I.G. found it," he answered Biden. The senator pushed a bit. But what did you think? "Because it's as if you float above the ether."

"I don't float," Mukasey answered sharply. Then he went back to his preferred lines. "I found an enormously dedicated group of people."

"Well that's amazing," Biden said. "So you disagree with the inspector general?"

But Mukasey wouldn't go along with that, either. Instead, he pointed out that "the two individuals" on whom he wanted to pin all the bad hiring practices "are no longer there." "I found that the I.G.'s report reflected two people, one of whom has left and one of whom is not in the job he was in then, who failed to respond with sufficient alacrity to charges of politicization." That's it. Biden was forced to sign off with the hapless, if honest, "You remain an enigma to me."

To be fair, it's not always clear exactly what the Democrats want from Mukasey. While Whitehouse pressed him more about the hirings and nonhirings, the attorney general asked the senator to let him know whether it's possible to prosecute anyone for the partisan shenanigans. In fact, it's not. And in this and other instances, it may be that going on a punishment rampage would be an unhelpful distraction or would net only low-level wrongdoers.

On the other hand, some of the senators were quite lucid about what they'd like to see Mukasey do differently—not differently from Gonzales, but from his own eight months of tenure so far. Sen. Patrick Leahy, D-Vt., wanted to see the OLC memos that continue to govern interrogation policy or, at least, an index of those memos. Mukasey agreed to no such thing. Sen. Herbert Kohl, D-Wisc., wanted Mukasey to promise that if the Office of Professional Responsibility investigates and finds misconduct by a DoJ lawyer, those findings will be made public. Mukasey made no promises: He said that if an OPR investigation finds "serious misconduct resulting in a dismissal, it's probably something that should be publicized."

Sen. Richard Durbin, D-Ill., got a little more. He asked Mukasey whether he'd release a pending OPR report about whether John Yoo and other former OLC lawyers violated the ethical standards of the legal profession in authoring the torture memos. Mukasey seemed to bridle here, too, but ended by saying "if OPR wants it released, it'll be released." This is hardly a guarantee the report will see the light of day, since the head of OPR (unlike the inspector general) reports to Mukasey. But Durbin called Mukasey's answer "progress," so maybe it will actually lead somewhere.

Mukasey performed like an excellent Bush appointee today. He was calm, unflappable, and never raised his voice. He has the credibility of a longtime public servant who magnanimously agreed to come back for one more thankless, 14-month government stint. Most importantly, he's not Alberto Gonzales. In sum, he's pretty much untouchable. He'll also be gone soon, along with his president boss.

And if the Democrats look forward, they have to ask themselves how next fall's regime change will affect the trajectory of the questions they're asking now. If John McCain is president, it'll be an easy call: Keep pressing about the past. Keep demanding a cleanup. But if Barack Obama wins the election, will investigations and recriminations look as good as they do now? Maybe the Democrats will revel in their Judgment Day. Or maybe they, too, will conclude that it's best for the Department of Justice to move on along.

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