How confirming Michael Mukasey will further cripple Congress.

How confirming Michael Mukasey will further cripple Congress.

How confirming Michael Mukasey will further cripple Congress.

The law, lawyers, and the court.
Oct. 22 2007 4:49 PM

From Toady to True Believer

How confirming Michael Mukasey will further cripple Congress.

Michael B. Mukasey. Click image to expand.
Michael B. Mukasey

The Senate should not confirm Michael Mukasey as the next attorney general. I am surprised to find myself writing this. I was initially pleased by his nomination. By all accounts, Judge Mukasey is honest, thoughtful, tough-minded, and independent—qualities his disgraceful predecessor notoriously lacked. If confirmed, Mukasey would probably reinvigorate the Justice Department's depleted and demoralized upper management and make a start on the long job of restoring the department's reputation for integrity and professionalism.

Sadly, that's not enough. The problem is not Mukasey's intellect, competence, or personal probity. It's that—as became clear on the second day of his Senate testimony—he is wrong about the fundamental moral question of whether reasons of state can justify or excuse the official embrace of torture. And he is even more wrong—dangerously, subversively wrong—about the place of the president in American constitutional government. If the senators on the judiciary committee really listened to what Mukasey said, and listened as senators and citizens rather than as nervous party politicians, they would reject his nomination on constitutional principle and as a matter of institutional self-defense.

Advertisement

First, Mukasey's weaseling on water-boarding was unworthy of him. Perhaps feeling pressure from his White House sponsors, he cast himself last week as little more than Torture Boy in long pants. His refusal to call water-boarding torture delighted the White House. His suggestion that he really wasn't familiar with the particulars of the technique was laughable. By now, no literate American adult is unfamiliar with this charming form of interrogation by near-drowning, which makes the claim even more absurd coming from a retired New York federal judge whose main claim to fame is presiding over difficult terrorism trials. Mukasey's response that "if water-boarding is torture, torture is not constitutional" was a transparent evasion. And the entire exchange throws a more sinister light on his borrowed quip that the infamous Gonzales-sponsored torture memo "was worse than a sin, it was a mistake. It was unnecessary." One now fears that Mukasey doesn't so much disagree with the substance of that memo, as he thinks that writing it down was a political error.

All other considerations aside, any person who cannot say, plainly and unambiguously, that water-boarding is torture and is both immoral and illegal should not be the attorney general of the United States. Period.

Judge Mukasey's views on presidential power are also disqualifying. When asked about the secret surveillance program authorized by President Bush in plain violation of the Foreign Intelligence Surveillance Act, he responded that the Constitution authorizes the president to ignore or disobey statutory law when he thinks it necessary "to defend the country." When Patrick Leahy, D-Vt., asked whether the president could authorize illegal conduct his response was this lawyerly formulation:

The only way for me to respond to that in the abstract is to say that if by illegal you mean contrary to a statute, but within the authority of the president to defend the country, the president is not putting somebody above the law; the president is putting somebody within the law. Can the president put somebody above the law? No. The president doesn't stand above the law. But the law emphatically includes the Constitution. It starts with the Constitution.

Advertisement

This expansive view of presidential war powers is nowhere to be found in the text of the Constitution, which provides only that the president "shall be Commander in Chief of the Army and Navy of the United States, and of the militia of the several States, when called into service of the United States." It also requires an almost willful misconstruction of Supreme Court precedent. While the boundaries between presidential and congressional authority in wartime are sometimes ambiguous, two points are plain. First, the court is tolerant of presidential assertions of extraordinary war powers in cases of genuine emergency where there is no time to seek congressional authorization. Second, in the language of the famous Youngstown case, when a president acts against the express will of Congress, "his power is at its lowest ebb" and the court can uphold the president "only by disabling the Congress from acting on the subject."

In enacting FISA, Congress passed and the president signed a statute striking a considered balance between national security and personal liberty. There is no plausible reading of the Constitution that allows a later president to authorize a secret, ongoing, systematic violation of that statute merely because he disagrees with the balance it struck or believes circumstances have changed.

Mukasey's views are particularly remarkable coming from a retired federal judge. If, as he asserts, the president's broad lawbreaking power derives from the Constitution itself, Congress is sidelined and the only institution with the authority to say the president has overreached is the judiciary. Mukasey's defenders might argue that this is hardly news, nothing more than a restatement of the rule of Marbury v. Madison that it is the province of the courts "to say what the law is." But if judges themselves begin from the premise that the Constitution permits the president to ignore a direct statutory command, even when there is no emergency preventing timely congressional action, the country will inch ever closer to autocracy so long as a willful president is paired with a complaisant judiciary.

To its credit, the federal bench has handed the Bush administration some stinging rebukes. But given the Supreme Court's traditional unwillingness to intervene in "political questions" relating to national security and the natural reluctance of judges to stand in the way of measures justified as necessary to prevent another 9/11, judicial complaisance in the face of an aggressively expansionist executive is a real danger.

Advertisement

Senatorial opposition to Mukasey's nomination should also crystallize around his testimony about the role of the Justice Department in cases in which executive branch officials have defied congressional subpoenas. The law provides for Congress to refer such contempt citations to the U.S. attorney for the District of Columbia, "whose duty it shall be to bring the matter before the grand jury for its action." But Mukasey said last week that the U.S. attorney should not enforce Congress' contempt citation so long as the noncomplying official was relying on an opinion from the Justice Department's Office of Legal Counsel that noncompliance would be a proper exercise of executive privilege. This sounds superficially reasonable. How can it be fair for the Justice Department to prosecute people for contempt after advising them that they have a valid privilege?  But in practice this rule of "fairness" allows the executive branch to exempt itself from congressional oversight. In Judge Mukasey's constitutional universe, the president can tell Congress to stick its subpoenas where the sun don't shine so long as some Justice Department lawyer writes a memo saying that's OK. (In theory, Congress can also enforce its own contempt citations by having the House sergeant-at-arms arrest the contemner and confine him in the Capitol pending trial before the whole Congress. This near-comic-opera procedure was last used in 1935.)

To be fair, an Attorney General Mukasey would surely promote a less confrontational approach to relations between the administration and Congress. But his recent testimony also suggests that, when push comes to shove, he not only believes in presidential supremacy in matters of national security but in broad executive-branch immunity from ordinary congressional oversight.

In ordinary times, Congress might welcome a man of Judge Mukasey's undoubted gifts as attorney general and swallow these differences of constitutional opinion on the theory that a president is entitled to appointees whose views are consistent with his own. But these are not ordinary times. And these are not ordinary differences of opinion.

For seven long years, a misguided and incompetent chief executive has led the country grievously astray. But much of the havoc wrought by his errors of judgment might have been prevented or at least contained had not the Congress feebly acquiesced, year after year, to vaulting claims of presidential supremacy and the steady erosion of its own power.

The Constitution conferred on the Senate the power to reject presidential nominees not merely, or even primarily, to keep rank incompetents from federal office. The appointment power is one of the weapons granted Congress in order to protect the political structure and human values enshrined in the Constitution itself from presidential encroachment. If a nominee for attorney general, however smart, sincere, and capable, refuses to disavow torture and espouses an anti-democratic, anti-constitutional doctrine of presidential hegemony and congressional subservience, he should be rejected. If the Senate is foolish enough to ratify the replacement of a bumbling toady with an accomplished apostle of the gospel of executive supremacy, it will deserve every snub this and future presidents inflict.  But the rest of us deserve better.