No Comment — August 12, 2008, 3:20 pm

The Mukasey Doctrine

Prior to his confirmation, Michael Mukasey fessed up, in a written response to Senator Dick Durbin, to a meeting the White House arranged with a group of movement conservatives. The team he met with had a simple agenda: They wanted his assurance that he would not appoint special prosecutors to go after administration figures involved in serious scandals at the Justice Department, including the U.S. attorneys scandal and the introduction of torture with formal Justice Department cover, and they wanted his assurance that Justice would continue to provide legal cover to “the Program.” The team who met Mukasey included figures on the periphery of the scandal who may have had personal reasons to fear an investigation. But Mukasey is clearly keeping the understanding that brought him to the cherished post of attorney general. And that’s bad news for the Justice Department and its reputation.

Today he addressed the annual convention of the American Bar Association, and expanded upon what may be known to future generations as the “Mukasey Doctrine.” This doctrine holds that political appointees in the Justice Department who breach the public trust by using their positions for partisan political purposes face no punishment for their crimes. In the Mukasey view, this is all simple political gamesmanship—“boys will be boys”—and sufficient accountability is provided by exposing their games to the public limelight.

After reviewing in the briefest terms the recent internal Justice Department probe into the politicization of the hiring process in the honors program, with respect to immigration judges and in other areas, here’s what Mukasey has to say:

The conduct described in those reports is disturbing. The mission of the Justice Department is the evenhanded application of the Constitution and the laws enacted under it. That mission has to start with the evenhanded application of the laws within our own Department. Some people at the Department deviated from that strict standard, and the institution failed to stop them.

I want to stress that last point because there is no denying it: the system failed. The active wrong-doing detailed in the two joint reports was not systemic in that only a few people were directly implicated in it. But the failure was systemic in that the system–the institution–failed to check the behavior of those who did wrong. There was a failure of supervision by senior officials in the Department. And there was a failure on the part of some employees to cry foul when they were aware, or should have been aware, of problems.

Note how Mukasey plays the entire affair down and uses the traditional language of the criminal defendant–for him it was a “system failure.” His language is passive: things evidently just happened. But in fact a closer read of the Inspector General’s report shows that the figures involved and the schemes adopted had a clear provenance in the White House, and specifically in the warren of Karl Rove. The actors under investigation, Kyle Sampson and Monica Goodling, had come with Alberto Gonzales from the White House. They benefited from an extraordinary delegation of authority from Gonzales that allowed them, two thirty-somethings with little experience, to exercise the authority of the attorney general in the hiring and firing process. This didn’t “just happen.” It was the result of a careful plan for partisan entrenchment at Justice—consciously pursued in defiance of the law. A serious investigation would have focused on the senior figures responsible for this program. So what is the penalty for such a systematic violation of the law? Well, according to Mukasey, there isn’t one. Those involved have already suffered enough. Yes, they suffer because their misdeeds are now known.

Their misconduct has now been laid bare by the Justice Department for all to see.

But in fact, the Justice Department didn’t willingly lay this bare. It had to be dragged kicking and screaming to the truth. Its instincts throughout the entire process were to cover up and lie about what was being done—as the inspector general documented in excruciating detail. And while Michael Mukasey praises the career professionals around him, the facts are that he has surrounded himself with political flacks who were deeply enmeshed in the cover up.

Mukasey insists that the process of partisan entrenchment has been checked following his arrival. A measure of skepticism on this point is warranted. In fact, the problem is far broader than the two probes undertaken by the Justice Department’s internal investigators. In a recent interview with a former first assistant U.S. attorney, I collected details of a widespread buy-out program used by the Gonzales and Ashcroft Justice Department to remove career professionals in several U.S. attorneys offices. In one case I have examined, this tool was used to replace career professionals with hacks who were obviously hired in violation of the civil service rules. But this matter has not yet even been probed.

Still, the two IG reports on hiring are a mere prelude to the forthcoming report on the U.S. attorney’s scandal. The message that Mukasey is sending seems to be this: he will refuse to appoint a special prosecutor to look into the matter, whatever the inspector general suggests. In the Mukasey view, it will be enough punishment for the truth to come out.

Yet in a single sentence, Mukasey gave a different signal.

If anyone – whether Democrat or Republican, whether appointed through a flawed process or a flawless one–is found to be handling or deciding cases based on politics, and not based on what the law and facts require, there will be a swift and unambiguous response.

How serious is Mukasey about this promise? He’s had plenty of opportunities so far, and there is no sign of action from the attorney general. Indeed, the entire thrust of his speech gives grave reason to doubt there will ever be any action at all. And with the next report, Mukasey’s promise may be put squarely to the test.

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