On November 14, Michael B. Mukasey was sworn in by Chief Justice Roberts at a festive Justice Department ceremony. Former Attorneys General Thornburgh and Ashcroft were present, but curiously not his predecessor, Alberto Gonzales. The last attorney general is now the target of a multi-count criminal investigation, and chose the date for the launch of his legal defense fund. Still, the nation’s, and the Justice Department’s, eyes were on Mukasey that day. And there was one fundamental question hanging over the proceeding: Will Michael Mukasey put an end to the politicization of the Justice Department? He made that pledge in the confirmation process, and it’s plain that a number of senators believed him—including many who, in the end, voted against him.
“We do law, but the result is justice,” Mukasey said in the signature line from his remarks.
As Mukasey assumes control, there is plenty of reason for concern about his ability to rein in the process of partisan exploitation of the administration of justice that his predecessors unleashed. And there is every reason to believe that the White House does not want him to do this, and indeed that it will obstruct any effort he undertakes to do so.
Political Prosecutions Still Alive at Justice
Three snapshots from the field that give a glimpse of what Mukasey is up against:
In Mississippi, U.S. Attorney Dunnica Lampton, who brought two politically inspired prosecutions against the state’s Presiding Justice, Oliver Diaz, which Lampton openly acknowledges were “weak” and which ended in acquittals, appears to be busily preparing a third attack on Diaz—he told a reporter in Jackson that he would soon “have more for Diaz.” In an interview with a local paper, he continued to attack the judge through vague innuendo, suggesting that he was guilty of unspecified crimes—statements which violate basic rules of prosecutorial ethics and DOJ guidelines for U.S. Attorneys. To most observers, the judge’s offense is very clear—he had the audacity to run against, and defeat, Lampton’s protégé in a contest for the state’s high court. Some grudges are slow to die.
In Alabama, U.S. Attorney Leura Canary launched the nation’s highest profile political prosecution—of former Alabama Governor Don E. Siegelman, the state’s most prominent Democrat. When defense counsel protested that she was married to the campaign manager for Siegelman’s opponent, she first resisted and ultimately, under pressure from the Justice Department, pretended to recused herself. But evidence of her involvement in the case continues to this day. Now Mrs. Canary is again busily pursuing a criminal investigation targeting individuals who have raised serious charges against another of her husband’s high-profile political clients. Details of this matter are expected to emerge in the coming week.
In Michigan, the Justice Department now seeks a gag order against one of its targets in an overtly political campaign against trial attorneys who raised money for Democratic presidential nominee John Edwards. Put the First Amendment aside, argued the Department, and forbid the defendant from laying out the case that the prosecution is politically motivated. The Department says these are “outlandish claims.” However, other observers would reserve the word “outlandish” to describe a Justice Department campaign targeting at least six trial attorneys who raised money, in which hundreds of employees were deployed, on the personal guidance of the Attorney General, to raid law offices and seize all politically oriented campaign information. The Justice Department continues vehemently to resist a probe or fair disclosures about its conduct and who is directing it. It cannot allay concerns that Republican political operatives were deeply involved.
The Renewed OPR FISA Probe
Shortly after Mukasey assumed the helm, the Justice Department announced that the probe of its Office of Professional Responsibility (OPR) would resume a probe into the propriety of advice given with respect to warrantless surveillance in connection with the FISA statute. This probe had previously been stopped as a result of intervention from the White House. Democrats in the Senate were quick to praise Mukasey for this step, but Mukasey himself made clear that the decision was not his—it had apparently already been taken.
Even apart from the fact that this was not Mukasey’s decision, there are other reasons not to regard this step as something terribly meaningful. One, as Prof. Marty Lederman has pointed out, is that the scope of action cut out for OPR is very narrow: it focuses on lapses in professional ethics. Lederman also feels that OPR will adopt the ethically dubious view that Justice lawyers are always free to dispense advice that their clients want, even when that advice is wrong, without sanction. This is not consistent with a fair reading of ethics standards (as Prof. David Luban notes), but it may in fact reflect the rather Byzantine perspective recently taken by OPR.
OPR has historically demonstrated an appetite for handling cases involving senior political appointees. For instance, it undertook and professionally discharged an investigation into William French Smith’s use of DOJ limousines to pick up dry cleaning and transport his wife. Still most of the cases of this sort that OPR has managed have entailed minor pecadillos, not serious policy decisions that impact the Administration at the highest level.
And in the last six years, OPR’s independence and ability to tackle politically sensitive matters is being widely questioned. A good starting point is the case of Jesselyn Radack, a former OPR lawyer, who dispensed absolutely correct advice in connection with the John Walker Lindh case (a matter in which the ethics of prosecutorial conduct is generally judged to have been atrocious, starting with the decision to disrespect Radack’s advice). Radack was fired and then persecuted for years as Justice officials sought her punishment by bar authorities and pressured her new employer to fire her as well (a solid recounting of the story can be found in this American Lawyer piece.) The Radack case pointed to new, Orwellian winds blowing inside of OPR.
In a series of other cases which I have been studying and about which I will be writing in a feature piece, OPR has battled aggressively with the DOJ’s highly regarded Inspector General to run politically sensitive investigations. When the OPR wins out in this struggle, the same fact pattern emerges: the cases are not investigated (at least as best I can see: documents are not requested, obvious witnesses are not contacted), no reports issue. The OPR appears to be acting as a “deep freeze” for politically sensitive matters. They are sat upon. This fits a pattern of comatose oversight that is common to the Bush Administration.
Consequently, I do not expect the OPR’s FISA probe to go anywhere. In fact, I was puzzled when the White House stopped it to begin with.
Bush, the Movement Conservatives and Justice: The Pact
But a far more serious concern from Mukasey’s first week goes to nominations to fill the numerous senior vacancies in the Department of Justice. A well-placed source informed me at the time of Mukasey’s hearing that President Bush, who is deeply committed to “keeping the base happy,” had struck a compact of sorts with disgruntled “movement conservatives” who wanted to see Ted Olson become attorney general. (1) They would get a private meeting with Mukasey (that occurred, and has been reported on in some more depth in a recent column by Sid Blumenthal.) (2) Bush would personally address the Federalist Society’s annual meeting (that also occurred). And (3) the major open vacancies at the top of Justice would be filled with “movement conservatives,” limiting the risk that Mukasey would be able to set much of a new course.
The White House’s announcement on Thursday of five new appointments to the Justice Department appears to me to be the fulfillment of the third pledge. I haven’t had much time to study the individuals in question, but at first blush, most appear to be just what was promised: a “movement conservative.” That phrase is used to refer to an individual who is highly ideological, usually associated with the Federalist Society or a similarly partisan organization, and who is deeply engaged in partisan politics. The probe of the U.S. Attorneys firings revealed a series of criteria that Rove, Miers and their counterparts at Justice were using to pick new U.S. Attorneys. Will they be “loyal Bushies?” And here were the criteria: are they party members? Do they work in election campaigns? Do they give money to Republican causes? Are they members of the Federalist Society, or a similar party organization, with a track record of active participation? For whom did they clerk? This was a test designed to identify persons willing to betray their office for political purposes. And looking over the list of nominees, it is hard to resist asking whether the same criteria were applied to pick candidates that Kyle Sampson would have discussed with Karl Rove. Here are the nominees:
For Deputy Attorney General, the number two slot: Mark R. Filip. He has a long record of political engagement in electoral trenches for the Republican Party (as the Chicago Tribune reports, he volunteered to work on the Bush-Cheney Florida vote litigation in 2000, for instance). He served as Vice President of the Federalist Society chapter at his law school. He clerked for Antonin Scalia and is close to Solicitor General Paul Clement. Critics of the Bush Justice Department regularly cite a secret subterranean network of former clerks of three judges (Scalia, Thomas and Silberman) who are highly partisan political ideologues, and who routinely shape policy and decisions outside of the formal channels of bureaucratic communication.
For Associate Attorney General, the number three slot: Kevin J. O’Connor. He was U.S. Attorney in Connecticut, who came in to serve as the attorney general’s chief of staff at the height of the scandal surrounding Gonzales.
To head the highly embattled Civil Rights Division: Grace Chung Becker. She has a long track record of political partisanship, especially advocating Republican Party positions on voting-rights issues. Even while serving at the Justice Department (she is at the Civil Rights Division now), she has continued as a member of the Republican National Lawyers Association, where she is listed as an active contact on major matters. At Justice, she would have responsibility for addressing questions relating to voting fraud, caging, voter dilution on which her political organization, is actively engaged. Her attitudes can also be gauged from a speech she delivered a month ago to a bar association in which she said “it was an ‘exciting’ time to work in the Civil Rights Division because the Attorney General [Gonzales] made civil rights a top priority within the Department of Justice.”
To head the Civil Division: Gregory Katsas. Mr. Katsas also has a long track record of engagement in G.O.P. politics, and clerked for Justice Thomas. He is a principle architect of the Bush Administration’s legal policies relating to Guantánamo. He advocated and continues to strongly defend the suspension of the writ of habeas corpus–as he told the Chicago Tribune last month, “We think it’s defensible on the law and we think it’s defensible on the basis of national security.”
I wish Michael Mukasey every success at Justice and still have confidence in his abilities. However, my expectations have now been greatly diminished. The question is “change or continuity at the Department of Justice.” And right now, notwithstanding a new attorney general with strong credentials and a demonstrated commitment to integrity, all the indicators are pointing to more of the same.