Congress' Attorney General?
by Donald Devine
Issue 94 - October 24, 2007

No wonder Democratic Sen. Charles Schumer (NY) proposed Michael Mukasey to President George W. Bush as the next Attorney General.

In response to a question during his Senate confirmation hearing about political appointees at the Department of Justice, Judge Mukasey responded: “You don’t assign to people, particularly people who are regarded as political people, the authority to make decisions on hiring in contact with other political people. That’s not the way I’m going to run this department.”

So much for the presidential power of appointment.

When Sen. Herb Kohl (D-WI) asked directly about the president’s firing of U.S. Attorneys, Mukasey said “I’m going to get in the middle of it very fast and stop it.” He was critical of the firing decision, appearing to agree with the questioner that they should only be removed for cause. He even indicated U.S. Attorneys should act independently of the other political appointees and recognized that Congress had a role in their appointment so that the executive branch should be sensitive to that relationship.

So much for the presidential power of dismissal.

Mukasey was particularly deferential to career lawyers. “Hiring is going to be based solely on competence and ability and dedication and not based on whether someone has an R or D next to his name,” he promised. In response to prodding by Sen. Benjamin Cardin (D-MD) to fill the top civil rights position with someone with experience in civil rights “advocacy,” Mukasey was sympathetic and inferred he would recommend a career attorney presently in the division.

So much for loyalty to the president.

Mukasey was effusive in his deference to Congress and particularly to Schumer and Judiciary Committee Chairman Patrick Leahy. “The members of this committee have much more experience than I ever could and I would be foolish not to rely upon your expertise.” He promised Schumer he would review all legal opinions on national security matters by the Office of Legal Counsel. He promised Leahy he will assure “partisan politics plays no part either in the bringing of charges or the timing of charges.”

Things went so far that Republican Senator Jeff Sessions (AL), tongue in cheek, felt it necessary to ask Mukasey if he thought it appropriate for the Attorney General to follow directions from the president.

While Mukasey seemed comfortable with constitutional matters, as former judge he was skeptical of inherent executive powers. When pushed by Sen. Dianne Feinstein whether the president could take military action without Congress, he responded the president would be “unwise to undertake major initiatives without making sure everyone was on the same page.” He said that one presidential claim of executive privilege left him with a simple reaction, “Huh!”

When asked if he would restrict the access of political people at Justice and the White House to Departmental matters, he said he would. When asked if that included the president, he said “Yes.”

Someone should tell the nominee he is being proposed for an executive branch appointment, not a judge. The judicial branch is where politics is supposed to be minimized, although even there appointments very much depend on the Rs and Ds. In the executive branch everyone works for the president and it is he who decides who has access to what and whom, not a person who serves at his pleasure. Mukasey’s view of the independence of the U.S. Attorneys even makes them immune to oversight by the Attorney General, making his job a nullity, to say nothing of the president’s.

President Bush better be careful how he deals with his new Attorney General. The refusal of the Reconstruction Congress to allow President Andrew Johnson to remove political appointees led to a constitutional crisis, impeachment and a powerless executive. Mukasey is a savvy politician (but detached from the Rs and Ds, like his pal Rudi Giuliani) who knows a lame duck president with low popularity ratings is weaker than his Congressional overseers. So he makes his alliances appropriately.

In undermining the president’s political authority, Mukasey is getting close to the primary power of the executive. In his present weakened position if President Bush ever goes against a Mukasey recommendation, his attorney general is on record he would quit over a serious matter. How can a president be effective with the sword over his head of his chief legal official thinking he works for Congress? Ask President Johnson.

Donald Devine, the editor of Conservative Battleline Online, was the director of the U.S. Office of Personnel Management from 1981 to 1985 and is the director of the Federalist Leadership Center at Bellevue University.