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    Richardson's Confirmation, a Guide for Mukasey's
    By Elizabeth Holtzman
    t r u t h o u t | Op-Ed

    Friday 19 October 2007

    New revelations of secret opinions indicate the Justice Department under former Attorney General Gonzales actually authorized head slaps, freezing temperatures, simulated drownings and other abusive interrogation techniques. They are all the more reason to view Bush administration interrogation policies as possible violations of anti-torture laws. It is now imperative that we have a special prosecutor investigate them.

    Congressional Democrats have issued subpoenas, demanded testimony of key White House aides, negotiated in good faith with the White House to obtain release of relevant documents to inform confirmation hearings for Attorney General nominee Michael Mukasey - all to no avail.

    The White House may continue to try to stonewall Congress on documents and testimony, claiming executive privilege. But it would not be able to stonewall subpoenas from a special prosecutor investigating a possible crime - the Supreme Court has already ruled in the Nixon tapes case that such subpoenas trump presidential secrecy claims. That's a compelling reason for the Senate to use upcoming hearings to demand that Mukasey appoint a special prosecutor if confirmed as Attorney General.

    In fact, that is exactly what happened in 1973, in a Watergate precedent that closely parallels the Mukasey nomination today: Attorney General Richard Kleindeinst had resigned under a cloud. President Nixon, faced with a hostile, Democratically controlled Senate, proposed a "consensus" candidate, Elliot Richardson, for Attorney General. Like Mukasey, Richardson was a respected figure whose qualifications were not seriously questioned.

    Nonetheless, the Senate Judiciary Committee advised Richardson that he would not be confirmed unless he agreed to appoint a special prosecutor to investigate alleged Watergate crimes. That condition did not impugn the nominee's credentials in any way. Richardson agreed and appointed Archibald Cox to the position, whose investigations and summary dismissal ultimately resulted in the House Judiciary Committee voting to impeach President Nixon, forcing his resignation.

    That's a robust precedent, clearly giving the Senate Judiciary the power to advise Mukasey that he, too, must agree to appoint a special prosecutor if he wants to be confirmed. Why not follow the precedent and use this established power?

    After all, didn't the Bush administration resist intense pressure to oust former Attorney General Alberto Gonzales for many damaging months, precisely because it did not want the Senate to impose serious conditions on confirming a replacement? Now that the shoe has dropped and Gonzales was ousted anyway, why should the Senate decline to use its leverage, just when it holds a strong hand? Why give the White House a pass on detainee abuse, US attorney firings, its defiance of congressional subpoenas, and its Nixonian recourse to claiming executive privilege?

    Even before the new torture memos came to light, there was more than sufficient evidence of possible Bush administration crimes to warrant investigation, including violations of FISA laws, the Geneva Conventions and War Crimes Act, and possible perjury by former Attorney General Gonzales. The Justice Department's inspector general is looking into the latter, though a special prosecutor would be in a more independent position to pursue it. Even if the inspector general uncovers a crime, without a special prosecutor, who would prosecute it?

    But beyond Gonzales' role, we need to know about the roles of Karl Rove, the Vice President's Office and even President Bush himself. What did they know, when did they know it, and are they right in asserting their actions were legal? Recent events make it clear that without a special prosecutor, those questions will go unanswered.

    The Justice Department needs a new leader who can restore credibility and morale, sooner than later, and confirming a consensus nominee, if that is what Mr. Mukasey turns out to be, would be a welcome step. But it does not necessarily follow that because it has been sent a credible candidate, the Senate should now pull its punches and not exercise its power to demand a special prosecutor.

    Using it in 1973 did not hurt Richardson, and doing so now will not hurt Mukasey. Nor did it do any damage to the ultimate credibility of the Justice Department. In fact, then as now, appointing a special prosecutor may be the best way to restore it. Failure to do so would only enshrine a doctrine of impunity for our highest officials.

    ---------

    Former Congresswoman Elizabeth Holtzman served on the House Judiciary Committee during Nixon's impeachment. She co-authored the 1973 special prosecutor statute, and co-wrote (with Cynthia L. Cooper) the 2006 book The Impeachment of George W. Bush.

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    Leahy Set to Schedule Hearings on Mukasey
    By Dan Eggen
    The Washington Post

    Thursday 04 October 2007

Demand for White House papers dropped.

    Sen. Patrick J. Leahy (D-Vt.) signaled yesterday that he will move ahead with confirmation hearings for a new attorney general later this month without reaching a deal on documents that he hoped to obtain from the White House.

    But Leahy, chairman of the Senate Judiciary Committee, also said that nominee Michael B. Mukasey will be confronted with a range of questions related to ongoing conflicts between Democrats and the Bush administration, including whether Mukasey would allow prosecution of White House aides for ignoring congressional subpoenas.

    In a letter to the nominee released yesterday, Leahy complained that "the White House has chosen not to clear the decks of past concerns," including Democratic demands for documents and testimony about the firing of nine U.S. attorneys.

    "I had hoped that the White House would . . . work with us to fulfill longstanding requests for information so that we could all agree about what went so wrong at the Department of Justice and work together to restore it," Leahy wrote in the letter. "Instead, they have left you to answer the unanswered questions and left longstanding disputes unresolved."

    The remarks indicated an end to Leahy's attempt to use the Mukasey nomination to pry loose sensitive information from the White House about the prosecutor firings, the government's warrantless surveillance program and other issues. Leahy's office has been in intensive negotiations with White House counsel Fred F. Fielding since President Bush named Mukasey as the nominee three weeks ago, but no agreement has been reached.

    Leahy has yet to announce a date for Mukasey's confirmation hearing, though Senate aides have said it is likely to be held in the third or fourth week of this month. In his letter, Leahy invited Mukasey to a one-on-one meeting Oct. 16, suggesting that a public hearing would be held soon afterward.

    Mukasey, 66, is a former Manhattan federal judge whose nomination to replace Alberto R. Gonzales as attorney general has been well received by lawmakers in both parties. Mukasey has met individually with senators in recent weeks and submitted answers to a lengthy committee questionnaire on Tuesday.

    Senate Minority Leader Mitch McConnell (R-Ky.) blasted Leahy yesterday for not setting a hearing date, saying that Democrats should "not hold Judge Mukasey hostage while they play partisan games." White House spokeswoman Dana Perino also urged Democrats to move ahead with the nomination.

    Leahy spokeswoman Erica Chabot said the letter to Mukasey and the candidate's questionnaire "are all positive steps moving forward in the confirmation process." Several Senate aides said a hearing date could be decided as early as today.

    In his letter, Leahy urged Mukasey to model himself on two attorneys general known for their independence: Elliot L. Richardson, who refused President Nixon's order to fire the Watergate special prosecutor, and Edward H. Levi, who was appointed as a reformer after Nixon resigned.

    Leahy outlined the questions he expects Mukasey to answer, many of which center on the aftermath of the prosecutor firings and other controversies during Gonzales's tenure. Leahy said he will ask "whether you share my view that the integrity and independence of federal law enforcement should not be compromised by political operatives from the White House," including the Justice Department's handling of election-related investigations.

    Leahy also said he would ask Mukasey whether he agreed with the Bush administration's claim that the Justice Department cannot be compelled to prosecute White House aides for defying congressional subpoenas.

    The House Judiciary Committee earlier this year issued contempt citations for former White House counsel Harriet E. Miers and White House Chief of Staff Josh Bolten in connection with the investigation of the prosecutor removals. But administration officials have indicated they would block enforcement of contempt charges if they are approved by the House, arguing that a U.S. attorney cannot be forced to contradict a finding by the president that documents or testimony are protected by executive privilege.