No Comment — March 29, 2008, 9:51 am

Mukasey and Public Integrity

On Thursday, Michael Mukasey spoke about corruption during a lunchtime speech to a friendly but also pointedly skeptical audience at the Commonwealth Club in San Francisco. As readers of this space know, I don’t pull any punches when it comes to Michael Mukasey’s performance as attorney general. I have also long admired Mukasey and considered him a friend. Mukasey is a penetrating and thoughtful man, and as an intellect probably the strongest person to hold the office of attorney general in recent memory. He is also very well read and it comes out in his speaking and writing, though always in an inobtrusive way. I have made a point of reading his public speeches as they go up at the Justice Department website. It’s always thought-provoking and usually pleasurable.

The San Francisco speech was no exception. He started with a recollection of the great San Francisco earthquake and the problems with public corruption and graft that hampered reconstruction efforts in its wake. He quoted Teddy Roosevelt’s famous “muckraker” speech, one of the classics of political oratory of the period:

“My plea is not for immunity to, but for the most unsparing exposure of, the politician who betrays his trust, of the big business man who makes or spends his fortune in illegitimate or corrupt ways. There should be a resolute effort to hunt every such man out of the position he has disgraced.”

These are words that need to be recalled now. We live in an era of unprecedented and sweeping government corruption. Evidence of it abounds in the papers. Last week we read of John Ashcroft’s multimillion dollar no-bid contract awarded by a political protégé, the current U.S. attorney in New Jersey. This week the papers are filled with accounts of massive armaments contracts for outfitting the fledgling Afghan government awarded by the Bush Administration to a 20-something Russian émigré with a doubtful background, but excellent G.O.P. connections. But the public outrage that these dealings should provoke is lacking, and the attitude of the punditry is one of cynical indifference.

In fact, as Mukasey points out, the Department of Justice has a long track record—established largely in the twentieth century—of battling public graft and corruption. He also points with pride to a number of prominent public corruption prosecutions carried out during the Bush Administration: the Cunningham, Ney, Abramoff prosecutions. I was amused reading these accounts, for Mukasey flags as a badge of corruption one congressman’s participation in Abramoff-paid golfing tours to Scotland. Perhaps if Mukasey knew that another participant on those junkets, which he correctly flags as corrupt, was his predecessor-in-office John Ashcroft, he might have reached for another example. And his discussion of the Abramoff case likewise raises a number of unpleasant issues. The Abramoff case was not turned over to a special prosecutor, notwithstanding the close entanglement of the attorney general (Ashcroft) and the current head of the criminal division (Alice Fisher) in Abramoff matters. Not surprisingly, the investigation of the largest and most important corruption matter in U.S. history was suffocated in the Bush Justice Department. It is not an accomplishment, but rather a demonstration of the manner in which political concerns have been allowed to take the controls in public integrity matters.

Then Mukasey came to the air of political direction that surrounds much of the Bush Justice Department’s public integrity activities.

We have and we carry out a duty to ensure that the Department’s investigations of public corruption are conducted without fear or favor, and utterly without regard to the political affiliation of a particular public official. After all, a corruption investigation that is motivated by partisan politics is just corruption by another name.

Let me be clear: Politics has no role in the investigation or prosecution of political corruption or any other criminal offense, and I have seen absolutely no evidence of any such impropriety in my time at the Department, and would not tolerate it.

These words are remarkable in two respects. First, Mukasey acknowledges a key fact: politically directed prosecutions are corruption. To speak of a politically influenced public integrity prosecution is therefore an oxymoron. If it is politically influenced, it is not a public integrity prosecution—it is a criminal act itself, indeed an act of corruption.

And second, Mukasey insists he has “seen absolutely no evidence” of political direction in his three months on the job.

My reaction, and apparently the reaction of much of Mukasey’s audience in San Francisco, was the same: Wake up and open your eyes. Has Mukasey forgotten how he came to be attorney general?

Starting with his confirmation hearing, Mukasey was asked by Congress to look at the prosecution of Don Siegelman, a rank miscarriage of justice marked by the grossest misconduct by Justice Department prosecutors, which has continued into his tenure in office. Mukasey’s reaction? He refuses to look. One month ago, CBS News 60 Minutes presented strong evidence that prosecutors had improperly badgered and cajoled witnesses, presented testimony they knew was false and withheld highly exculpatory evidence. When confronted with these accusations, the Justice Department was unable to deny them, because they are true. Indeed, two weeks earlier a senior federal judge in Alabama issued an opinion reviewing some of these same accusations and concluded that they established a prima facie case of impermissible conduct by federal prosecutors. In the meantime, on his watch, Justice Department political flaks respond to Congressional inquiries with stonewalling and make numerous false official statements. Mukasey’s willful disregard of all of this is a stain on his reputation, and the Department’s.

Moreover, the Siegelman case is just one of more than a dozen cases in which credible evidence exists of political direction in connection with public integrity prosecutions. Since Mukasey came to office, the U.S. Attorney in Birmingham, Alice Martin, has pursued a scorched earth policy against a large part of the Democratic legislature, even sending marshals to serve subpoenas on the legislature’s floor (a criminal act had it been done), all coordinated with prominent Republican politicians and designed to promote a campaign announced by the state’s Republican Governor to “take control of” the legislature. This all reads like a report from a banana republic. But it is coming out of Michael Mukasey’s Justice Department. Mukasey is also oblivious to this. (Expect much more detail on this story to appear in national media in the coming weeks.)

Mukasey’s posture does not stop with willful ignorance of instances of abuse, it includes mischievous stonewalling to block proper Congressional investigation. When the House Judiciary Committee held hearings on political prosecutions, the Justice Department sent no one to speak, offered written submissions riddled with false statements, and refused to produce the documents that had been requested, often on absurd pretexts. In sum, the Justice Department has behaved and continues to behave not like a law enforcement agency, but like a white-collar criminal who has been caught in some very dirty dealings and is eager to obstruct the course of justice.

Mukasey was hit with a number of questions after his speech. Why had the Los Angeles U.S. Attorney’s office shut down its public integrity unit? His reaction, as the Associated Press reports:

To take that as a signal that the Central District of California is out of the public corruption business I think is absurd. I didn’t read it that way and … that’s not the life truth of it.

But indeed, Mukasey’s brush off fails to properly weigh the concern. Many observers continue to view the probe into the dealings of California Congressman Jerry Lewis, one of the G.O.P.’s Congressional powerhouses, as the most significant corruption case in the country. It raises weighty issues of management of the public trust and misuse of legislative power for personal benefit. Yet there is much to believe that the scandal that brought Gonzales down and elevated Mukasey to the position he now holds revolves around just this investigation, which has at its crux Ted Olson, almost certainly President Bush’s preferred choice to be attorney general, and a man whose influence is widely felt in many selections. Ted Olson is Jerry Lewis’s attorney.

The handling of the Lewis case is the ultimate test of the sincerity of Mukasey’s commitment to pursue public integrity matters in a fashion that is blind to politics. It is now unmistakably clear that powerful and unseen political hands influence this case, and that an effective investigation and prosecution have been stayed by them. And that act of corruption speaks much louder than Mukasey’s protestations.

Mukasey responds dismissively to accusations of politicization. “It’s often in the interest of someone to charge politicization whenever a prominent public figure is investigated or prosecuted,” he said. He also quite disingenuously challenged them to make the case in court. I say “disingenuous” because Mukasey knows that his Justice Department will vehemently object to any motion being entertained to establish politically motivated prosecution and will object to and obstruct any effort to collect evidence into it. That evidence exists in the records of the White House and Justice Department, and both have been turning somersaults and churning totally implausible claims of executive privilege to prevent it from coming out.

But Michael Mukasey knows better. The vacancy that he filled was created by the charge of politicization, because that charge could not—and still cannot be—credibly rebutted. Moreover, although some of the defendants bring it, this charge has been raised most effectively by other Republicans, such as former Attorney General Richard Thornburgh, former Arizona Attorney General Grant Woods, and some of the best U.S. attorneys to serve the Bush Administration itself—John McKay, David Iglesias, Carol Lam and Paul Charlton, for instance. The real question is whether Mukasey is able to put his responsibilities as an American and as the steward of the Justice Department above his cherished relationship to the Republican Party. His answer to that query is, at this point at least, extremely disappointing.

Mukasey is right about the need for vigorous public integrity enforcement, and he is right about the vital role that the Justice Department has played in the past. He urgently needs to come to grips with the problems inside the Justice Department, which may well now be the single most politically corrupt institution in the federal bureaucracy. Until he starts this process, skepticism about the Justice Department’s commitment to public integrity is well warranted.

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