The Mukasey Rule: Lame-duck Obama should get the attorney general he wants

Next week, Republicans may recapture control of the U.S. Senate. And to be sure, they’ve made no secret of their plans to derail the final two years of Barack Obama’s presidency.  Would-be Senate Majority Leader Mitch McConnell (R-KY), who in 2005 declared that "Any president's judicial nominees, after full and fair debate, receive a simple up-or-down vote on the Senate floor," last year promised Democrats who chose the nuclear option on judicial nominees, "You may regret it a lot sooner than you think. As Norman Ornstein of the American Enterprise Institute warned, "A Republican Senate would shut the door on confirmations, and they're going to do so on executive as well as judicial ones." Georgetown law professor Randy Barnett, the man who led the right-wing legal challenge to Obamacare, explained how the new GOP majority’s demolition project would work:

My guess is Obama would have to present nominees that are much much more acceptable to Republicans, or they won't even schedule hearings.

Of course, that’s not how Democrats treated lame-duck President George W. Bush after the "thumpin'" they administered to him and his party in the 2006 midterms. After retaking the majority, the Democratic-controlled Senate confirmed Bush’s choice as attorney general, Judge Michael Mukasey. And for their willingness to let the constitutional process go forward with a replacement for the comically corrupt Alberto Gonzales, Democrats were rewarded with a hyper-partisan attack dog whose dirty work for the GOP continues to this day.

Follow below the fold for more.

Senate Republicans have already signaled their intent to stymy almost any selection President Obama might make to succeed Eric Holder at the Justice Department. Iowa Sen. Chuck Grassley, slated to take over the chairmanship of the Judiciary Committee should the GOP gain control of the chamber on January 1, 2015, announced, "Rather than rush a nominee through the Senate in a lame-duck session, I hope the president will now take his time to nominate a qualified individual who can start fresh relationships with Congress so that we can solve the problems facing our county."  Sen. John Barrasso (R-WY) went even further, warning, "I do oppose any vote on a successor during the lame-duck session." And whether the president makes a lame-duck nomination or not, conservative Glenn Harlan Reynolds believes Obama should "consider naming someone outside his own party as attorney general." And just why should the Democrat Obama do something no Republican president would ever countenance? As Barrasso complained:

We need an attorney general for the people, not a presidential protector and a puppet of the administration.

Sadly for Barrasso and his conservative allies, "a presidential protector and a puppet of the administration" is a perfect description of Alberto Gonzales, who resigned as President Bush’s attorney general in August 2007. As White House counsel, Gonzales signed a 2002 memo declaring the Geneva Conventions' torture provisions had been "rendered quaint." In March 2004, Gonzales along with Bush chief-of-staff Andy Card tried (and failed) to force a gravely ill John Ashcroft to sign on to an extension of the president’s illicit program of NSA domestic surveillance, a move that nearly prompted the resignation en masse of the DOJ top leadership team. And as Ashcroft’s successor as attorney general, Gonzales was Bush’s point man on misleading Congress over warrantless electronic eavesdropping, detainee torture and the U.S. attorneys purge. And the man who famously used some variant of "I do not recall" 55 times in a single congressional hearing, instructed all 93 federal prosecutors this way in 2005:

I work for the White House, you work for the White House.

By 2007, Gonzalez had become an albatross around the GOP’s neck. In April, conservative Sens. Tom Coburn (R-OK) and Jeff Sessions (R-AL) urged him to resign. That August, he did.

On September 17, 2007, President Bush nominated Judge Michael Mukasey, a former U.S. attorney, to replace Gonzales. (A close friend of former New York Mayor Rudy Giuliani, Mukasey pledged to recuse himself from any cases involving disgraced Bush Homeland Security nominee Bernard Kerik or the law firm where Mukasey’s son worked, Bracewell & Giuliani.) Needing to get his man through a Senate now controlled by Democrats, Bush had selected a man CNN’s Jeffrey Toobin represented as "an extraordinary difference from John Ashcroft and Alberto Gonzales." As Americans later learned, it didn’t turn out that way.

At first, Democrats gave President Bush more than the benefit of the doubt. While Mitch McConnell proclaimed Mukasey possessed "the qualities my Democratic colleagues said they want: experience, integrity and intellect," Senate Majority Leader Harry Reid (D-NV) praised Bush for choosing a nominee who is not "another partisan administration insider." Judiciary Committee Chairman Pat Leahy (D-VT) pledged to give Mukasey’s nomination "serious and deliberate" consideration.”  Democratic Sen. Charles Schumer went even further on behalf of Mukasey, a fellow New Yorker:

While he is certainly conservative, Judge Mukasey seems to be the kind of nominee who would put rule of law first and show independence from the White House, our most important criteria.

Ironically, Bruce Fein, a former deputy attorney general in the Reagan administration, warned that Mukasey is "not the right person for the job":

I do not believe, despite certainly substantial credentials, that he has the national stature and strength in Congress to resist White House overtures to insist that he bend the law to assist the political agenda.

As it turned out, Fein was prescient. Mukasey would prove then and now to be a dedicated water-carrier for President Bush and the Republican Party. The first sign of his loyalty to party over the law became clear during his confirmation hearings.

Following in the footsteps of Alberto Gonzales, who during his own February 2005 confirmation hearings deemed senators' questions on presidential authorization for torture as a "hypothetical situation," Mukasey tried to skirt the issue of the legality of the practices in question. As ThinkProgress recounted, Mukasey in a written response to Democratic senators in October 2007 took the same line as his predecessor:

In the four-page letter, Mukasey called the interrogation technique "over the line" and "repugnant" on "a personal basis," but added that he would need the "actual facts and circumstances"" to strike a "legal opinion":

"Hypotheticals are different from real life and in any legal opinion the actual facts and circumstances are critical."

And like Gonzales, Mukasey refused to disavow specific "enhanced interrogation techniques" such as waterboarding. Entering the realm of semantics and circular logic, Mukasey followed Gonzales' 2005 approach in characterizing discussions of presidential power to authorize given interrogation procedures as hypothetical. As the Washington Post detailed, Mukasey in essence claimed the legality of "torture" all depends what the meaning of "torture" is:

"I'm hoping that you can at least look at this one technique and say that clearly constitutes torture, it should not be the policy of the United States to engage in waterboarding," said Sen. Dick Durbin, D-Ill.

"It is not constitutional for the United States to engage in torture in any form, be it waterboarding or anything else," Mukasey answered.

During terse questioning by Sen. Sheldon Whitehouse, D-R.I., Mukasey said he did not know if waterboarding is torture because he is not familiar with how it is done.

"If it's torture?" Whitehouse responded incredulously. "That's a massive hedge. I mean, it either is or it isn't."

"If it amounts to torture, it is not constitutional," Mukasey answered.

"I'm very disappointed in that answer," Whitehouse said. "I think it is purely semantic."

As Sen. Lindsey Graham (R-SC), himself a judge advocate general (JAG) in the military, noted at the time, there was no ambiguity about the legality of the techniques in question.

If he does not believe that waterboarding is illegal, then that would really put doubts in my own mind because I don't think you have to have a lot of knowledge about the law to understand this technique violates the Geneva Convention and other statutes.

Graham nevertheless joined all of the Judiciary Committee’s Republicans in voting to send Mukasey’s nomination to the full Senate. But while Leahy rejected Mukasey and his torture ploy, Bush’s man received the blessing of Democrats Chuck Schumer and Dianne Feinstein.. As NPR reported:

Schumer said he eventually decided to support Mukasey after the judge assured him "that if Congress passed further legislation in this area, the president would have no legal authority to ignore it and Judge Mukasey would enforce it."

Schumer and Feinstein had fallen for Bush’s "trust but don’t verify" ruse on torture. As Press Secretary Dana Perino put it on the eve of the vote on Mukasey:

"The president will say [that] the attorney general is a critical member of the nation’s war on terror team and that he needs to be confirmed immediately.  And once he is confirmed, then the Congress has the capability to ask him to come to Congress and to testify on all sorts of matters, including this one.

On November 9, 2007, Mukasey was confirmed by a 53-40 vote.  Joining Feinstein and Schumer were Sens. Landrieu (D-LA), Carper (D-DE), Nelson (D-NE), Bayh (D-IN) and Lieberman (I-CT). And almost immediately, Bush’s new AG began, as Bruce Fein had warned, to "bend the law to assist the political agenda."

For example, on February 29, 2008, Mukasey told Congress that White House aides Josh Bolten and Harriet Miers could not prosecuted for contempt for refusing to appear in response to subpoenas regarding Bush’s prosecutors purge. In July, Attorney General Mukasey blocked a House committee's attempt to obtain internal FBI reports about the leak of covert CIA officer Valerie Plame's identity. That same month, he rejected calls to appoint a special counsel to investigate Bush administration officials who approved the use of coercive interrogation techniques against terrorism suspects:

I am aware of no basis for appointing a special counsel to investigate the policymakers who approved the CIA interrogation program or the national security lawyers who concluded that the program was lawful.

It was with good reason that Dan Froomkin concluded in Mukasey the Obstructionist that "Michael Mukasey has President Bush’s back." But after George W. Bush finally ambled out of the White House for good on January 20, 2009, Mukasey the Obstructionist turned into Mukasey the Hatchet Man.

When the new President Obama and his Attorney General Eric Holder released four Bush-era torture memos in April 2009, Mukasey and Michael Hayden co-authored an op-ed darkly predicting, "The President has tied his own hand on terror." Rejecting any notion that the Bush administration's so-called enhanced interrogation techniques "disgraced us before the world,” Mukasey argued:

The release of these opinions was unnecessary as a legal matter, and is unsound as a matter of policy. Its effect will be to invite the kind of institutional timidity and fear of recrimination that weakened intelligence gathering in the past, and that we came sorely to regret on Sept. 11, 2001.

Mukasey went further, regurgitating the serially debunked claim that the techniques he refused to describe as torture had worked. Al Qaeda’s Abu Zubaidi, he insisted, was "coerced into disclosing information that led to the capture of Ramzi bin al Shibh" and by extension, 9/11 mastermind, Khalid Sheikh Mohammed.

The former attorney general wasn’t done. In May 2011, he helped lead the ranks of Republican revisionists insisting George W. Bush—and not Barack Obama—deserved credit for killing Osama Bin Laden. Writing in the Wall Street Journal on May 6, 2011, Mukasey gushed about "the waterboarding trail to Osama Bin Laden." One year later, Mukasey returned to attack the president on the anniversary of Obama’s greatest success and Bush’s greatest failure. Days after his Wall Street Journal op-ed claiming that Obama's Bin Laden "bragging" compared unfavorably to Lincoln, Eisenhower and—wait for it—George W. Bush, Mukasey took to Fox News to charge that "the Obama Administration drafted a memo to protect the president from blame if the mission to kill or capture Osama Bin Laden would have failed.". As right-wing blogs excitedly quoted:

That was a highly lawyered memo (designed to protect the president politically)... I think there's going to be more that's going to be tumbling out about that escapade but so far that memo is enough.

Of course, there was no such memo. But when it came to a Democrat in the White House, no amount of slander was enough. So when President Obama authorized the trade of five Taliban prisoners in exchange for U.S. Army Sergeant Bowe Bergdahl, Mukasey declared it an impeachable offense:

Whether you impeach somebody doesn't depend on whether they violate the law," Mukasey said. "The president can stay within his lawful powers and still commit an impeachable offense. He can pardon anybody he wants. If he decided tomorrow to pardon everybody in the U.S. prison system, that would be lawful, but it would raise serious questions about whether he should continue in office. The same is true of the wholesale release of dangerous people.

The call for impeachment was more than a little ironic coming from Mukasey. After all, he wasn't just once the top law enforcement official in the land.  He served George W. Bush, who as president released 500 detainees from Gitmo in exchange for—wait for it—nothing. As ThinkProgress helpfully explained at the time:

Statistics from the Office of the Director of National Intelligence show that only 6 percent (5 in total) of Guantanamo detainees released during the Obama administration have been assessed to have potentially engaged in militant activities. That compares with a rate of nearly 30 percent under the Bush administration. While these statistics have been criticized as including activities that no one should consider threatening the security of the United States, such as writing op-eds critical of U.S. policy, no one is arguing that they are undercounting those detainees who potentially have committed violent acts upon release.

And so it goes.

In the fall of 2007, George W. Bush was the lamest of lame-duck presidents. On November 6, 2007, Bush’s fellow Texan and Republican Sen. John Cornyn was furious:

Judge Mukasey’s nomination has been delayed now for almost seven weeks. It is imperative that the President has his national security team at full strength and the unnecessary delay of Judge Mukasey's nomination has prevented that. He deserves an immediate up-or-down vote by the full Senate.

Two days later, a United States Senate controlled by Democrats gave Mukasey that up-or-down vote, and confirmed a partisan hack as attorney general. But with Democrat Barack Obama in the White House, Cornyn announced he had a new standard for confirmation:

There is a 60-vote threshold for every nomination.

Whether or not Republicans take back the Senate on Election Day, they’ve already begun smearing possible replacements for Attorney General Eric Holder. Former Obama White House Counsel Kathryn Ruemmler has already withdrawn her name and Labor Secretary Thomas Perez, who was confirmed in a contentious 54-46, have already been subjected to withering fire from the GOP.

So the question remains: Who should President Barack Obama nominate as his next attorney general?

According to the Mukasey Rule, whoever he damn well wants.