Slate's Bizbox
jurisprudence: The law, lawyers, and the court.

Mukasey's Not the ManHe'll be a weak attorney general.

By Bruce Fein
Posted Wednesday, Sept. 19, 2007, at 5:55 PM ET
Michael Mukasey. Click image to expand.

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.

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.

Mr. Mukasey will adamantly defend the crippling of congressional oversight and legislation by the Bush-Cheney duumvirate. If he is asked by the Senate judiciary committee whether the president is empowered to sign bills passed by Congress into law but disregard provisions he believes are unconstitutional, he will nod. If he is asked whether President Bush enjoys inherent constitutional authority to flout any law passed by Congress to regulate the collection of foreign intelligence (for instance, the recently enacted Protect America Act or the Detainee Treatment Act that prohibits torture), he will nod. If he is asked whether the president is crowned with power to prevent any current or former government officials from testifying about executive branch communications, he will nod again. And on and on, he will agree. The president may detain American citizens indefinitely as unlawful enemy combatants based on secret evidence. The United States is a battlefield where military force and military jurisdiction can be invoked by the president. The president is legally entitled to kidnap, imprison, and abusively interrogate terrorist suspects abroad on his say-so alone. Military commissions, which play judge, jury, and prosecutor in the trial of war crimes, are necessary to displace independent civilian courts with the trappings of due process. Journalists may be prosecuted under the Espionage Act for disclosing national security wrongdoing like the National Security Agency's warrantless domestic surveillance program, in contravention of the Foreign Intelligence Surveillance Act of 1978.

And Mr. Mukasey will assuredly not appoint a special prosecutor, á la Patrick Fitzgerald, Archibald Cox, or Leon Jaworski, to make independent constitutional judgments of what the president has done over the past six years under the banner of national security. Scooter Libby will be thrown in his face daily as a reminder about the political hazards of prosecutorial independence. He lacks the experience in Washington to withstand the assault.

Pliant attorneys general have been the rule, not the exception. Wartime strengthens the rule. President Franklin D. Roosevelt's attorney general, Francis Biddle, initially opposed FDR's blatantly racist World War II decision to herd 120,000 Japanese Americans into concentration camps with no evidence of sabotage or disloyalty. He wrote to the president on Feb. 17, 1942: "For several weeks there have been increasing demands for the evacuation of all Japanese, aliens and citizens alike, from West Coast states. A great many West Coast people distrust the Japanese, various special interests would welcome their removal from good farm land and the elimination of their competition. … My last advice from the War Department is that there is no evidence of imminent attack and from the F.B.I. that there is no evidence of planned sabotage." And yet despite these strong words, as Biddle recounted in his autobiography, the next day he decided not to oppose President Roosevelt any further.

Mr. Mukasey fits the Francis Biddle model like a glove. Like Mukasey, Biddle served as a judge, on the United States Court of Appeals. It was thought he enjoyed a habit of independence that would have steeled him to FDR's overtures. No such luck. Mukasey sports a longer tenure on the bench as a United States District Court Judge, but his rulings there, and extrajudicial statements, reinforce the prediction that he will echo rather than challenge the White House. In the Padilla case, Mukasey held that citizens could be held indefinitely as enemy combatants on President Bush's featherweight evidence. He has advocated a separate system of criminal justice denuded of customary due process protections for accused international terrorists.

When Mukasey made these rulings as a federal judge, he commanded life tenure and protection against reduced compensation, features the Founding Fathers understood would promote independent thinking. As attorney general, in contrast, Mukasey will serve at the pleasure of the president. In light of his record, to expect him from that precarious perch to challenge what has been constitutional gospel in the White House for more than six years would reflect a triumph of hope over experience, to borrow from philosopher Sam Johnson. Johnson's commentary was about second marriages; in this case it holds true for second jobs.

Print This ArticlePRINTDiscuss this in The FrayDISCUSSEmail to a FriendE-MAIL
Share on FacebookPost to MySpace!Share with MixxDigg ThisShare with RedditShare with del.icio.usShare with FurlShare with Ma.gnolia.comShare with SphereShare with Stumble Upon
Bruce Fein is a constitutional lawyer at Bruce Fein & Associates and chairman of the American Freedom Agenda.
Photograph of Michael Mukasey by Chip Somodevilla/Getty Images.
Join the Fray: our reader discussion forum
What did you think of this article?
POST A MESSAGE | READ MESSAGES
Washington Post
The Washington Post
OPINIONS
Over the Line
Harold Ford Jr. | I know what it's like to be smeared by your opponent.
: The Positive in Negative Ads
PLUS » Milbank: The President's Lullaby