Perspective

Some of Mukasey's views troubling

By A TIMES EDITORIAL
Published October 21, 2007

Hope ran high when Judge Michael Mukasey, the president's nominee for attorney general, came before the Senate Judiciary Committee last week for his confirmation hearings. He had been advertised as a man of great intellect and integrity. And to be sure, he was refreshingly direct in promising to de-politicize the Justice Department. However, Mukasey's views on an issue that could become a constitutional crisis were troubling. He appears willing to grant President Bush nearly all of the unrestrained powers the president has been claiming, even the right to disregard clear statutory limits on the president's ability to wiretap Americans without a warrant.

Bush has invoked executive privilege to keep Congress and the American people from knowing the truth about the purge of nine U.S. attorneys. It is suspected that some of those attorneys may have been fired because they refused to use their offices to advance the political interests of the Republican Party.

Congress wants to know what role White House insiders played in the firings, but Bush has blocked testimony by his advisers, claiming that they cannot be compelled to give sworn testimony to Congress. They don't have to make an appearance, according to Bush, even when there might be questions that don't involve advice to the president.

The House Judiciary Committee has voted to cite for contempt both former White House counsel Harriet Miers and Joshua Bolten, the White House chief of staff. Miers received a subpoena to testify but simply refused to show up. Bolten has refused to turn over documents that the committee has requested. Both pointed to the president's invocation of executive privilege. The full House has yet to vote on the contempt issue.

The Justice Department is legally bound to enforce congressional contempt citations, but Bush has directed the department not to comply. In his Senate testimony, Mukasey refused to promise to fulfill the department's legal duty to Congress over the president's objections. He pointed to two Justice Department memos discussing executive privilege and said that if advisers to the president rely on those in refusing to testify, then the department should not prosecute them.

He also indicated that he sees executive privilege as a broad right of the president's, covering "communications other than those directly to and from the president."

The purge of the U.S. attorneys is potentially a criminal act, if it was done to interfere with investigations. And Bush's claims of executive privilege go far beyond the privacy of Oval Office conversations.

If the White House prevails, it could undermine the power of Congress to "inquire into and publicize corruption, maladministration, or inefficiencies" in the executive branch, which the Supreme Court in 1957 explicitly stated was a power Congress enjoyed.

Mukasey has wide bipartisan support and will undoubtedly be the next attorney general. We can hope that as attorney general he will show greater allegiance to our system's constraints on executive power than he did in his testimony.

[Last modified October 22, 2007, 09:16:03]