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Bait and Switch in the Attorney General’s Office


Monday’s announcement of the President’s selection of Michael B. Mukasey as his third attorney general overshadowed another, surprising aspect of the press announcement. He also stated that he had revisited his decision to have Solicitor General Paul Clement serve as Acting Attorney General, vesting the authority instead in Peter Keisler, the head of the Civil Division, whose departure back to private law practice had been announced just a few weeks earlier. So on Monday it seems that Keisler, not Clement, was sitting behind Gonzales’s desk.

What’s this all about? I spent some time talking with folks at the Judiciary Committee, in Justice and at the White House trying to figure that out. The explanations are consistent, and they point to a tactical move on the White House’s part.

One of the key issues in the background in the selection of the new attorney general was whether he would be what Republicans often call a “movement conservative.” That the nominee would be a strong conservative, would share the Bush Administration’s legal policy agenda, and would be a Republican was beyond question. The issue was his connection to the “conservative movement” among Republicans—an ideological litmus test going to membership in the Federalist Society and strong engagement in electoral politics to support the party. Ted Olson, for instance, is widely viewed as one of the founding figures in the “movement.”

What distinguishes “movement conservatives” from others is their willingness to use all the institutions of government aggressively to accomplish the movement’s agenda. And the movement’s agenda and the party’s agenda are essentially the same. David Addington is, by this definition, the ultimate “movement conservative,” and John Yoo comes not far behind. The “movement” pursued the overt politicization of the Justice Department. It reversed the work of the voting rights division, turning it into a voter suppression program. And it turned the public integrity section on its head, making it into a safari against Democratic politicians timed and selected to advance a G.O.P. electoral strategy. Only small pieces of the “movement’s” reconstruction of the Justice Department have come to the surface, but we can now safely anticipate that much more will surface in the future, as Justice personnel retire and as future administrations release documents reflecting some of the inner workings of the Bush years.

Mukasey has clear connections to the “movement.” He has in recent months become almost a fixture at Federalist Society functions. He is also a long-standing adviser to Rudy Giuliani. But his lengthy service on the bench has kept him out of the political rough-and-tumble. Therefore people in the center of the “movement” view him with some suspicion as a person at best on their periphery. This, of course, is one of the things that makes him a tolerable candidate from the perspective of leading Senate Democrats, notwithstanding his embrace of many administration legal policies that the majority find extremely distasteful.

So it appears that Bush’s bait-and-switch move–first tapping Clement and then substituting Keisler—had to do with his ultimate decision to give the nod to Mukasey. Two distinct considerations were repeatedly cited to me in this regard.

First, the “movement conservatives” would be very unhappy about his decision to give up on Ted Olson in favor of Mukasey. Keisler is considered a core “movement conservative.” He is one of the founders and a central pillar of the Federalist Society, the center of the “movement.” Appointing him as Acting Attorney General would be a sop to the Federalist Society crew.

Second, and more importantly, the White House fully anticipated that the Senate Judiciary Committee would hold the Mukasey nomination hostage to its demands for documents relating to the probe of Karl Rove and his involvement in manipulating hiring and firing and prosecutorial decisions within the Department of Justice. There is also a strong concern that the Senate will press for appointment of a special prosecutor to look at the question of politically motivated hirings, firings and prosecutions. But the documents are the special concern. As one source put it to me, “I can’t stress enough how mortified the White House is about the prospect of disclosure of these documents. I have no idea what’s in them, but the way some people close to the president and Rove behave, you’ve got to think it’s something extremely worrisome. There is no way they are ever going to give way on this. They are intent on protecting Karl to the end.” Since the White House isn’t going to play Patrick Leahy’s game on the documents, it wanted to provide some reverse pressure.

I am told that Keisler is that reverse pressure. As several sources told me, Keisler means “straight line continuity with Alberto Gonzales, his policies and approaches.” Does that mean continued politicization of the Justice Department? Yes.

Other than the mutiny that Keisler’s actions recently provoked over appeals in Guantánamo-related cases, on which I reported here, Keisler has not been much in the public eye. It’s worth taking a brief look at his career for events that give some clue as to how he would run Justice, especially considering that in light of the current standoff, he could be Acting Attorney General for some time.

It should be noted at the outset that Bush nominated Keisler to the Court of Appeals for the District of Columbia about a year ago. His nomination has gone nowhere, and Democrats on the Senate Judiciary Committee have expressed skepticism about it. I haven’t heard much by way of specific criticism, however. The fact that Keisler announced his decision to leave Justice and return to private practice was widely seen as his call to give up on the judicial nomination. It’s likely that Keisler himself is in the best position to know what’s held up his nomination.

The Student Activist
Keisler attended both college and law school at Yale, where he was a visible, prominent player in the conservative activist student scene that included personalities like Robert Bork (a mentor to Keisler) and John Yoo. He edited a conservative student newspaper, where he wrote often of his deep political convictions and intention to stick to them to transform American government and society. As he told a Time Magazine writer looking into the conservative rebellion at Yale, “lasting ideologies do not come overnight.” (Time, Nov. 8, 1982, p. 80). Typical of Keisler’s writings in this period is a mean-spirited attack on Yale President Bartlett Giamatti published in Human Events on November 28, 1981. In the year between his college and law school careers, Keisler helped run the Leadership Institute, a boot camp for young Republican political activists. He also authored a piece in Human Events advocating boycott and public pressure tactics designed to stop the flow of corporate contributions to Democratic political candidates and he opposed the Law of the Sea Treaty saying it would restrict corporate exploitation of natural resources in and under the seabed.

While in law school, Keisler was appointed by the Reagan Administration to some consultative positions. Straight out of law school, he started a judicial clerkship with Robert Bork, a man he described as his mentor, and he landed a job out of his clerkship with the Office of Legal Counsel in the Reagan White House. While he was serving in the White House, Bork’s nomination headed for its fateful encounter with the Senate. Keisler was clearly and openly embittered by this experience. He defended Bork as “in the mainstream,” and said after the nomination failed: “It was unpleasant, the kind of thing that makes you hit the wall some nights…. It was extremely frustrating to see ideas that had previously been considered part of a reasonable debate excommunicated and defined as extreme by the Senate.”

But of course Bork’s ideas were not just viewed as extreme by the Senate, but by a large majority of the public as well–as contemporary polling showed.

It seems clear that Keisler was a deeply committed partisan “movement conservative,” deeply engaged in tactical planning to elect other “movement conservatives,” to secure and promote their control of the institutions of government in all branches. Much of what Keisler did in the Reagan years is not known. It is likely he authored a number of memoranda which have been preserved but not yet made public which would shed more light on his views on legal policy issues.

The Bush Justice Department
Keisler joined the Ashcroft Justice Department in 2002, where he ran the civil division. Generally not one of the more controversial components of the Department of Justice, the civil division represents the United States in civil litigation; its major charge is to defend legislation from attack.

Much of Keisler’s guidance and work has passed under the radar screen—it rarely became a matter of press reporting. But there have been a couple of prominent exceptions. The major controversy to affect the civil division in Keisler’s years there was related to big tobacco. I have been told repeatedly by sources at Justice that almost immediately from the arrival of the Bush Administration big tobacco began wielding powerful influence in the Justice Department through behind-the-scenes meetings with key political appointees. This process often involved senior political advisors to the president, and most prominently Karl Rove and former RNC chair and prominent tobacco lobbyist Haley Barbour. Resources of the DOJ were mustered against those trial lawyers across the country who were identified as critical adversaries by big tobacco. And very strange things began to happen with major civil litigation involving the tobacco industry—litigation which was under the control of Keisler.

In the Clinton years, the Department brought suit against tobacco companies, alleging that the companies conspired to conceal the dangers of smoking from the public. Keisler was involved in an inexplicable decision by the government to scale back its remedy demand right in the middle of the trial—a step that directly benefited the tobacco industry and reduced the leverage and bargaining position of the United States. Keisler had signed a
brief in district court arguing that the government’s demand for a $130 billion smoking cessation program remained proper because it was designed to constrain the industry’s future conduct. But one month later, Keisler dramatically changed course, deciding that the demand for the $130 billion program was improper. He unilaterally withdrew his claim, substituting a request for a $10 billion program instead. The move was against the advice of the career staff managing the case and appears to have been politically dictated. Sharon Eubanks, the key career attorney on the case, responded by quitting her Justice Department, where she had worked for years. She said that Keisler and other political appointees had been undermining the litigation.

As a result of Congressional pressure, the Justice Department’s Office of Professional Responsibility looked at the matter and issued a report which was a characteristically shameless whitewashing of what happened. It remains the subject of Congressional inquiries.

Keisler’s division also recently intervened in an action in New Jersey seeking to block New Jersey’s attorney general from enforcing New Jersey criminal statutes against warrantless surveillance. This was one of the innumerable cases in which the Justice Department has argued that state secrecy concerns trump enforcement of the criminal law, and disclosure of the Bush Administration’s criminal conduct in the pursuit of warrantless surveillance. He has made similar arguments in California and in other court proceedings and has been a zealous advocate of government conduct in the shadows.

Finally, Keisler played an important role in the government’s argument of a series of cases relating to the rights of prisoners held in the Guantánamo detention facilities. In doing so he embraced a number of positions that produced a mutiny among his own staff, with lawyers refusing to participate in briefing and arguing the cases. As noted previously, the Code of Professional Responsibility precludes lawyers from making factual arguments which they feel are untruthful and from arguing propositions of law which are contrary to the law or a good-faith argument for its extension, modification or reversal.

In sum, it’s clear that Keisler is a “movement conservative,” and that he would most likely continue Alberto Gonzales’s program of politicizing the staff and conduct of the Justice Department. His installation as Acting Attorney General is intended to provide the Judiciary Committee with a choice—they can insist on the Rove papers and deal with Keisler, or they can relent and get an attorney general who will try to steer the Justice Department back to its traditional professionalism. This is a cynical calculus, but given Bush’s behavior in the past, it can hardly surprise.

Farewell to Fredo
Alberto Gonzales’s farewell fest was the subject of a typically brilliant segment on last night’s Daily Show with Jon Stewart. It was another demonstration of the susceptibility of everything surrounding the Bush Justice Administration to satire. But indeed, it was one of those cases where overt satire was completely unnecessary. The event was a complete farce all by itself. It only had to be edited and broadcast. As Fredo heads back to Texas, it appears he has some news awaiting him. According to sources in Austin, Texas legal ethics oversight authorities have launched an inquiry into Gonzales’s conduct which may leave his license to practice law in jeopardy. The move makes Gonzales’s gloomy demeanor at his farewell party perfectly understandable. But it hardly comes as a surprise. Legal ethics authorities have openly discussed how Gonzales’s conduct in office constituted serious violations of the Code of Professional Responsibility. An article even appeared in Time Magazine on the subject. So it appears that in the coming months Congress is not the only forum where Gonzales will be asked to explain himself.

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