Douglas W. Kmiec

*An earlier version of this essay appeared in the Wall Street Journal, p. A21, September 19, 2007.

The nomination of Michael B. Mukasey to be Attorney General of the United States has met with almost uniform praise. One dissident is Washington lawyer Bruce Fein, who has been an outspoken opponent of the conduct of the war on terror by President Bush. Fein argues in a recent column for Slate (September 19, 2007) that Mukasey will prove to be "a reliable echo of the monarch like theory of government celebrated by Mr. Bush and Vice President Dick Cheney." Fein asserts that Mukasey "lacks the independent political base, national stature, or philosophical convictions necessary to resist the inevitable White House clamor to subordinate the Constitution to expediency."

Even as a highly partisan assessment, Mr. Fein is mistaken. Judge Mukasey has his own national stature and a well articulated philosophy of law, including the law of presidential power, that is anything but monarchial in nature.

In terms of reputation, or stature, Judge Mukasey is known as a no-nonsense judge who has little patience for cross-examination that does not stay on topic. A Yale law graduate, Mukasey has ample experience as a federal prosecutor, in private practice, and for 18 years (a half dozen of them as Chief Judge demonstrating important managerial capability) on one of the busiest federal courts in the land – the southern district of New York, which gets more than its share of complex securities and corporate cases, along with the usual docket of federal criminal prosecutions.

And philosophy? Andrew McCarthy, a former assistant US attorney who appeared before the Judge numerous times gives a first-hand assessment that directly rebuts Fein’s hearsay speculation. McCarthy prosecuted Sheik Omar Abdul Rahman and 11 other jihadists (who had plotted to strike the United Nations, the FBI’s lower Manhattan headquarters, various military installations as well as the Lincoln and Holland tunnels).   In a thoughtful essay on Mukasey in the National Review Online, McCarthy reports that in the conduct of trial, Mukasey "carefully crafted insightful opinions on the proper balance between national security and civil liberties, permitting the government to introduce the full spectrum of its evidence but holding it rigorously to its burden of proof and its ethical obligations; managing a complex litigation over defense access to classified information; and developing jury instructions that became models for future national security cases."

But don’t just take the prosecutor’s word, criminal defense lawyers from Donna Newman (who represented Padilla) to the late William Kunstler (who represented defendants in the Abdul Rahman case) praised Mukasey’s fairness. Said Newman, "I admire him greatly." When Kunstler and the defendants complained that FBI agents were leaking information to the press to bias the case, Mukasey was blunt: "in my day, whoever did this would have been afraid for his or her job," he said. "If it doesn’t stop, then I’m going to start asking people in those agencies, and every agency and office involved in this prosecution, to start submitting statements under oath. . . .It may be that the only power I have to stop [the leaks] is the power of embarrassment, but I’m going to use it."

Overall, well before the nation had its attention focused on terror on 9/11, Judge Mukasey threaded the legal needle in early terrorism cases, distinguishing himself in the words of his appellate reviewers as a man of "extraordinary skill and patience, assuring fairness to the prosecution" and defendant alike.

All that said, Fein’s observation that the Judge does not have an independent political base is true, and it warrants closer examination. Prior to his nomination, the Judge was not a close associate of the president, and given the cloistered nature of judicial work, he was not out building a political constituency of his own. What does this lack of a presidential relationship mean for Judge Mukasey’s potential success as Attorney General? This requires a bit of history.

The office of Attorney General was created by an isolated paragraph in the Judiciary Act of 1789:

"There shall be appointed," said the Act, "a person, learned in the law, to act as attorney-general for the United States, who shall be sworn or affirmed to a faithful execution of his office; whose duty it shall be to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments . . . ."  

It is widely assumed that Mukasey inherits a Department in some considerable disarray, with vacancies at the top of almost all the divisions and suspicion and frustration among the career ranks. But at least, he inherits a Department. Edmund Randolph, the first Attorney General, had to get along all by himself (the Department of Justice not being created until 80 years later). While Mukasey will be forced to take a considerable pay cut from the private practice he has enjoyed since leaving the bench in 2006, he’s certainly better off than Randolph, who had to make do with a half-salary. But Randolph had an initial advantage Mukasey lacks: he was well known to the President. George Washington had utilized Randolph’s legal counsel numerous times before he assumed public office. Despite rose garden oratory, Bush doesn’t really know Mukasey, and therein as Fein implies, lies a challenge to effectiveness.

Indeed, some of the most effective Attorneys General in modern times have been close associates, even kin, of the President. Thirty-five year old Bobby Kennedy assumed the role for his brother, and by many accounts acquitted himself well, giving pivotal advice resolving the Cuban Missile Crisis, aggressively pursuing organized crime, and laying the framework for the early federal civil rights legislation. Likewise, close friend and California legal advisor, Edwin Meese, for whom I worked, had the ear and total confidence of President Reagan. The seamlessness of this relationship gave birth to a strengthening of efforts to reduce both the demand and supply sides of the illegal drug trade, a substantial reform of the antitrust policies to coincide with other deregulatory steps to spur a then-sputtering and inflated economy, a revival of respect for the separation of powers and the interests of the states, and a judicial selection effort that underscored fidelity to text and a restrained judicial role. It was Meese’s careful screening that led to the nomination to the federal bench of men and women of Mukasey caliber, including Mukasey, himself in 1987.

By contrast, Clinton Attorney General Janet Reno, whose legal credentials were impeccable, was often thought to lack necessary access to the President. President Clinton’s third choice when the first two had confirmation difficulty, Reno is remembered for missteps that led to the deadly Branch-Davidian siege, but also for the expansion of the independent counsel’s inquiry into matters related to Monica Lewinsky. Depending on your political perspective, the latter was either a profile in courage or an abuse of process that provoked an unwarranted impeachment process.

Of course, to Senator Leahy and the Democrats, and even some Republicans like Senator Specter, exasperated by the inability to obtain the answers they demanded from Mr. Gonzales, Judge Mukasey’s lack of Texas pedigree or longstanding presidential friendship is almost certainly a plus. Leahy, who has flirted with the idea that the Justice Department should be the equivalent of an independent agency, will certainly see Mukasey’s lack of prior history with George Bush as a strength.

Frankly, it can be, and at this moment in time, likely is. Whatever the complete motivation for the selective dismissal of U.S. Attorneys, either the firings themselves or the public controversy surrounding them has seriously eroded public confidence in whether the legal framework is being evenhandedly applied. Robert Jackson who served as Attorney General to FDR before being named to the Supreme Court is famously remembered for his admonition to U.S. Attorneys that they have "more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. . . .While the prosecutor at his best is one of the most beneficent forces in society, when he acts from malice or other base motives, he is one of the worst." Mukasey could scarcely find a better opening text for his confirmation proceeding than Jackson, and upon assuming office, could likewise use it to reaffirm the U.S. Attorney guidelines that prosecutions are rarely to be countermanded by Washington, except to ensure "uniformity of policy and action."

Forthright commitment to these rule of law principles should rightly banish prescriptions to formally make the Attorney General an independent agent. President Carter floated that idea post-Watergate only to have his Attorney General, Griffin Bell, opine that any law restricting the removal of the attorney general by the President would be unconstitutional and promote unaccountability. "Because laws are not self-executing, their enforcement obviously cannot be separated from policy considerations," wrote Bell. This is the consensus view of academic study as well. Scholar Nancy Baker who has done a comprehensive study of the office quotes former Attorney General Elliot Richardson and William Saxbe as arguing that too high degree of insulation of the Attorney General’s office from politics could create a tyrannical bureaucratic monster. In the end, the Attorney General more than any other executive officer must combine a personal and professional commitment to the law and the Constitution with a measured degree of sensitivity to the political constituencies represented by the Department’s own civil service personnel, the House and Senate Judiciary Committees, the federal courts, the bar and the legal academy, and yes, of course, the President.

Can Mukasey bring us back to this straight and narrow path without a long-standing relationship with the president he intends to serve? Yes, because he has something even more important: integrity and intellect. In public essay, and from the bench, Judge Mukasey has given considerable thought to needed reforms aimed at the greatest immediate threat to the civil order: terrorism. In particular, Mukasey has demonstrated a nuanced understanding of the capability of Article III courts to deal with detainees. Some say the shortness of time will make Mukasey only a place-holder, but the times do not permit that luxury. We have dealt with terrorism in fits and starts, sometimes on war-footing and sometimes through the lens of criminality. It may well be both or neither, and whether it is a specialized national security court with more flexible rules of evidence or something else, it is a reasonable bet that Mukasey will counterbalance any defendant limitations to access to classified information with adherence to a rigorous burden of proof and the observance of ethical standard.

Of course, beyond terrorism, there is dealing with an increasing rate of violence in urban settings, jump-starting fair-minded civil rights enforcement that addresses both invidious electoral exclusion and voter fraud, the perennial problem of drug abuse, disparate sentencing and new challenges posed by identity theft and the thieving of intellectual property. That should easily fill out the rest of the Judge’s hours. The notion that the forthcoming hearings ought to rehearse past grievances would be a mistake. There is serious work to be done and a serious person has stepped forward who can do it, if we let go of the partisan past that Mr. Fein seems too anxious to re-litigate.