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Bush Nominates Michael B. Mukasey as Attorney General

Analysis: Another Day, Another A.G.

Bush Nominates Michael B. Mukasey as Attorney General

WASHINGTON, D.C. – Today, President Bush announced his choice for the man (of course!) to succeed Alberto Gonzales as Attorney General of the United States: Michael B. Mukasey. And as usual, at the moment, we know nothing of Mukasey's views on sexually oriented material or the First Amendment.

Such knowledge will probably have to wait for the Senate confirmation hearings ... which may be some time in coming. Sen. Patrick Leahy, the chairman of the Senate Judiciary Committee, suggested that there are more important matters his committee has to consider first.

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"The Judiciary Committee will approach consideration of the nomination of an Attorney General in a serious and deliberate fashion," Leahy said in a press release. "The Administration took months determining that a change in leadership was needed at the Department of Justice and then the President spent several weeks before making a nomination. Our focus now will be on securing the relevant information we need so we can proceed to schedule fair and thorough hearings. Cooperation from the White House will be essential in determining that schedule."

That "relevant information" apparently is the White House emails and other documents related to the politically-motivated firings of the nine (and possibly more) U.S. Attorneys and to the NSA's warrantless wiretapping program.

So what do we know? Well, Mukasey spent four years as an Assistant U.S. Attorney to then-U.S. Attorney Rudy Giuliani before being tapped in '87 for a federal judgeship by Ronald Reagan. He spent 19 years on the bench in New York City before retiring in 2006 to return to the private practice of law as a partner at the NY firm of Patterson Belknap Webb & Tyler.

Before getting to Mukasey's other qualifications and the kudos he's been getting from political types on the left and right, let's make one thing clear: Bush didn't nominate this guy because he expects him to follow the law, as a proper Attorney General should. There are at least a dozen high-profile investigations that should be pending at the Department of Justice, any of which would be highly damaging to the administration, which Bush would not want his new AG to explore, including the above-noted U.S. Attorney (USA) firing scandal and the NSA wiretapping scandal.

Some of those pending investigations include Gonzales' multiple perjuries before Congress; former DOJ/White House liaison Monica Goodling's use of party affiliation and Federalist Society membership in vetting candidates for Justice Department positions; former USA Bradley Schlozman's voter fraud allegations in Missouri brought just before the 2006 election, in violation of Justice Department guidelines; USA Steve Biskupic's prosecution of Georgia Thompson in Wisconsin on trumped-up charges of bid rigging, the "evidence" of which a federal appeals court dismissed as "beyond thin" and ordered the woman released from prison forthwith; the Hatch Act violations committed by White House functionaries, including Karl Rove, in giving thinly-disguised pro-Republican seminars to executives at various federal agencies; the gutting of the Justice Department's civil rights division, and many more.

At least one of Mukasey's actions that are being touted as examples of his political "independence" is his ruling in the Jose Padilla case that the government needed to present "some evidence" to support Padilla's detention in a military brig as an "enemy combatant," and that Padilla deserved access to an attorney – conditions that any ordinary American citizen (which Padilla is/was) should expect as a matter of constitutional right.

But Mukasey upheld Padilla's designation as an "enemy combatant," a term with no legal basis beyond a presidential executive order – but Mukasey gave his judicial imprimatur to the term, thereby violating Padilla's constitutional rights under several amendments – a decision which was reversed by the Second Circuit U.S. Court of Appeals, which ruled that as a citizen, Padilla deserved to be tried in the U.S. court system or released.

Mukasey's other claim to judicial fame was presiding over the 1995 trial of Sheik Omar Abdel Rahman and nine co-defendants, all charged with conspiring to plant a bomb at the World Trade Center two years earlier, which killed six and injured about a thousand others but did not knock down the towers as had been planned.

Several members of the Religious Right have already weighed in on the qualities the replacement A.G. should have.

While pandering to the idea that "our nation faces many pressing problems, including the threat of terrorism" – no mention of political scandals here! – a letter to President Bush authored by Morality In Media (MIM) president Robert Peters, and signed by 50 high-profile pro-censorship activists, goes on to say, "our nation also faces a growing moral crisis, giving rise, among other things, to teen promiscuity, sexually transmitted diseases (including AIDS), abortions, children born to single mothers, divorces, sexual abuse of children, sexual harassment, rape, and trafficking in women and children," concluding that, "It is clear that the explosive increase in the availability of pornography is fueling this moral crisis."

The letter goes on to claim that "even the pornographers themselves expected to see far more curtailment of obscenity by now," and that "the pornographers began preparing for a full retreat not long after your election."

"We believe that Attorney Generals Ashcroft and Gonzalez [sic] meant well when each stated that enforcement of obscenity laws is a Justice Department 'priority'," the letter continues. "By our count, however, there have been fewer than 20 obscenity prosecutions against commercial distributors of 'adult' pornography since January 2001."

The letter also attempts to take the FBI – particularly Director Robert Muller – to task for its "unwillingness to investigate all but a relative handful of obscenity cases" – recall that Obscenity Task Force Director Brent Ward said almost the same thing in urging the firings of U.S. Attorneys Paul Charlton of Arizona and Daniel Bogden of Nevada – and complains that the bureau instead "expends considerable energy combating organized crime (which is still in the pornography business), tracking down serial killers (many of whom are addicted to pornography), and curbing crimes often associated with the breakdown of the family (pornography both prevents and ruins marriages)."

"We also urge you to make fighting obscenity one of your top priorities," the letter emphasizes, with the signers seeking to increase their own prestige by suggesting, "President Reagan considered the problem important enough to invite national leaders concerned about pornography to meet with him at the White House." (And who would those "national leaders" be? Three guesses!)

Several pro-censorship groups have issued similar statements, and the MIM letter is signed by Citizens for Community Values president Phil Burress, the supposedly-retired attorney Jan LaRue, American Family Association's Rev. Don Wildmon, former DOJ prosecutor Patrick Trueman, Family Research Council president Tony Perkins and several other "luminaries."

Sadly, Sen. Charles Schumer of New York – Mukasey's home territory – was quoted as saying, "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," adding, "For sure we'd want to ascertain his approach on such important and sensitive issues as wiretapping and the appointment of U.S. attorneys, but he's a lot better than some of the other names mentioned and he has the potential to become a consensus nominee."

Being "a lot better than some of the other names mentioned" is hardly high praise, considering that some of those others are former Solicitor General Theodore Olsen and D.C. Circuit Appeals Court Judge Laurence Silberman, both deep in the administration's pocket, and Schumer should know better.

According to Time magazine, Mukasey's nomination should anger the theo-conservatives (theocons) since in 1994, he denied asylum for a Chinese man who said his wife had been forced to have an abortion under that country's one-child law, but compared with the help Mukasey could give the administration (and by extension, the entire Republican Party) by thwarting even a few of the above-noted investigations, the asylum issue pales in comparison.

Predictably, many right-wingers are pushing for a speedy confirmation, with Senate Judiciary Committee ranking member Arlen Specter declaring, "It is very important to act promptly and not get snarled in the requests that are outstanding," and ultraconservative committee member Sen. John Cornyn sneering, "In recent months, my Democratic colleagues have loudly voiced their belief that partisan politics has no place at the Department of Justice. With today's nomination and forthcoming confirmation process of Judge Mukasey, they will have an opportunity to demonstrate that."

The White House had an even better "reason": The new AG would be good for the war and make the troops feel so much better: "Everyone agrees that the Department of Justice in this critical time — especially at a time of war — needs a leader," said Bush spokesflack Dana Perino, "and he can be a leader that can help lead that Justice Department and make it feel — raise the morale for folks who have been under the gun over there."

But in fact, there's little reason for the White House to rush Mukasey's nomination, since rather than appointing the current Solicitor General Paul Clement as the acting attorney general, Bush selected Peter Keisler, the Assistant Attorney General in charge of the Justice Department's Civil Division ... and a highly controversial nominee – three times! – for a judgeship on the D.C. Circuit Appeals Court.

Keisler isn't just a member of the ultraconservative Federalist Society, he's one of its co-founders, which alone should be all that's needed to establish his credentials among the theocons, but Keisler also oversaw the administration's years-long fight to keep the Guantanamo Bay prisoners of war from establishing any legal rights.

Keisler has also been the executive vice-president of the Leadership Institute, a post-law school academy for training conservative Republican leaders, and although rejected for the position by Congress, was recess-appointed by Reagan to the National Advisory Council on Women's Educational Programs, which investigated and advised government officials on issues of gender equity in education.

Keisler was also, according to Justice Department attorney Sharon Eubanks, instrumental in the administration's "throwing" of the case against the major tobacco companies in 2005, including ordering that she and her trial team drop recommendations that tobacco executives be penalized by being removed from their corporate positions, instructing her to tell key witnesses to change their testimony, and ordering her to read their rewritten closing argument to the jury verbatim.






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Mark Kernes

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