Mukasey's Confirmation Will be a Disaster

Chuck Schumer and Dianne Feinstein's endorsement of Michael Mukasey is stunning.

There are more reasons to reject Michael Mukasey's nomination than his evasive answers on waterboarding and unconstitutional expansive views of federal power. Years ago, Michael Mukasey defended the indefensible when his friend, Rudolph Giuliani, then a prosecutor, began subpoenaing defense lawyers before grand juries.

It was one of the more substantial overreaches of the Giuliani years. And it is of particular relevance in today's criminal cases that bear the terrorism label -- a brand of cases where the government's failure rate today is very high. It can be aimed at the country's best defense lawyers and those lawyers that defend detainee, rendition and terrorism cases.

Giuliani attempted, and Mukasey defended, the subpoenaing of defense lawyers to learn about the relationships between defense lawyers and their clients, between defense lawyers and the payer of the defendants' fees -- a move that certainly would discourage most third parties from contributing to a defendant's fee fund.

Giuliani attempted, and Mukasey defended, subpoenaing the attorneys' work records that would show confidential communication between attorney and client.

As a result of the New York State bar's concern over Mr. Giuliani's activities, on the same day that Mr. Mukasey's article appeared, the New York State Bar Association issued a report designed to curb the freedom of federal prosecutors to subpoena attorneys.

Mukasey's defense came three days after the Massachusetts Bar Association roundly condemned issuing such subpoenas as unethical, improper and unconstitutional.

Because subpoenas aimed at defense attorneys create a wedge between client and counsel, and undermine the right to counsel protected by the Sixth Amendment, the Massachusetts bar sought to stop the arbitrary use of the subpoena power by directing all United States attorneys to get judicial approval before subpoenaing a lawyer. Today, if the federal prosecutor fails to comply with that directive, he can be cited for contempt.

Wrongfully compelling defense attorneys to testify against their clients undermines the entire judicial process. Prosecutors can pick their adversaries by using subpoenas to force attorney after attorney off a case. They can stop defendants from hiring top-flight attorneys. Even though defendants have the presumption of innocence, they and their lawyers come under attack even before the case starts.

Giuliani and Mukasey's response was that the monies used to pay lawyer's fees may be monies obtained by criminal means. Seize the money, they say, and let the court set a reasonable fee for the attorneys. But fees from criminally-obtained monies would only be true in a very few cases and the fees the court would set would be court-appointed fees, meaning defendants would get different caliber lawyers.

Today's attorney general could effectively try that procedure in so-called terrorism cases, a title given to an increasingly broad number of criminal cases.

Mukasey has never defended his disagreement with the only two Bar Associations that have spoken to the issue.

Notwithstanding the Bar Association's condemnation, Mr. Mukasey characterized the entire dispute as a fights between Giuliani and defenders of criminals "who baselessly attack him." His hyperbole -- "In their zeal to attack a prosecutor who is far too effective to suit their tastes . . . " - he totally ignored any and all constitutional arguments.

The Democrats on the Senate Judiciary Committee should be ashamed of themselves. A study of Mr. Mukasey's record, his unique obsessive overspending of $27,000,000 (yes, $27 million) to protect him and his family because he feared criminal attacks shows they never should have been enamored of him. Senator Patrick Leahy's smiling self-satisfied face after his private meeting with Mukasey recalls his smiling self-satisfied face after his meeting with now Chief Justice John Roberts.

The Roberts history is instructive. He, along with two other Democrats on the Senate Judiciary Committee, voted for Roberts. Senator Russ Feingold voted for John Roberts, the nominee for Chief Justice, saying "He will not bring an ideological agenda to position" evokes the language of Senator Charles Schumer's rapturous enforcement of Michael Mukasey. That both Senator Feingold and Senator Leahy were totally incorrect, and that Senator Arlen Spector now suggests Roberts may have misled the Senate, confirms the consistent lack of legal homework on the part of the Senate Judiciary Democrats.

Didn't Leahy ask him questions about presidential power, torture, the unheard of $27 million and the subpoenaing of defense lawyers?

Senator Charles Schumer and Senator Dianne Feinstein's switch to Mukasey's side is inexplicable. How they can live with justifying torture both within the United States and in overseas prisons is incomprehensible.

The Senate Judiciary Committee should recall the old adage: "Fool me once, shame on you, fool me twice, shame on me."

Comments

[janmB]

Of course anyone Bush picks will be supportive of his politics and policies. There will never be anyone he will pick that will be anything but.

[midtown]

Marty,

I hope you have your office working overtime tonight faxing that to every member who will vote on Mukasey tomorrow.

[Bob Egan]

I grew up during WW11 and was full of 'hero warship',I enlisted in the Army in Sept 1948 and was overseas when the Korean war started! I am now ashamed of this country!! The swaggering, smirking chimp claims to 'support the troops' while he dis-honers every person who fought and supported our efforts in WW11 to rid the world of war criminals. His orders to commit the same crimes that we hung people for show how far this country has sunk.

It's time that we take back our Constitution and join the world court so our war criminals can meet justice. That would help to restore some of the respect that this (and previous) administrations have squandered for the benefit of our corporate masters. Dubya just met the Dali Lama, but nothing was mentioned about the USA abandoning Tibet because Kissinger went to china and made some trade deals! The Chinese killed 1.2 Mil. Tibetens out of about 6 mil.

Watch the documentary "The Snow Lion" and see what really happened to Tibet. Dubya keeps spouting about how 'America keeps it's word' ~~ explain that to the bay of pig survivors, or the Iraqi's that tried to oust Saddam after the gulf war, or the Hungarians, or the Tibetens etc.

[AnotherMcIntosh]

"Mukasey has never defended his disagreement with the only two Bar Associations that have spoken to the issue."

The issue, in this context, was that of compelling defense attorneys to testify against their clients.

Mukasey is dangerous, and he is not going to give up his proclivities.

And what is the current response from the ABA and other Bar Associations?

Silence. Just more irresponsible silence.

[navalvet]

Senator Schumer's problem is that he collaborated with the regime, sponsoring a Republican, rather than letting Bush find and promote his own man. He is in a classical political bind: he can keep his word by sticking with Mukasey and angering many of his constituents, or do the ethical thing and lose his political credibility, a valuable asset. Since he does not face reelection until 2010, a very long time in politics, he is not going to do "the right thing."

[TylerW82]

It's not stunning. It's obvious. But to speak openly and honest about this issue would be anti-semetic.

[Superfelo]

Just think, if he did this, then, and there was not the excuse of terrorrism, and Muskakey,
as attorney general:

"Giuliani attempted, and Mukasey defended, the subpoenaing of defense lawyers to learn about the relationships between defense lawyers and their clients, between defense lawyers and the payer of the defendants' fees -- a move that certainly would discourage most third parties from contributing to a defendant's fee fund."
What will they not do to the country?
Rudsolini was already sinking in the toilet
September 10, 2001. Now he is a "verb, a noun
and 911".

[cadawa]

Almost all the actions of the Democratic Party at this juncture are inexplicable. This is one of many betrayals.
My guess is that what we know about the activities of our government, outrageous and unlawful as they are, are just the tip of the iceberg.
That if the truth were known, both Parties fear the collapse of the government. The Democrats, at this point in time are engaged in helping the GOP keep the lid on.
Mukasey will certainly do that for them. He will do his best to prevent us from discovering the real depravity of our government and shield the perpetrators from justice.

[MmeFlutterbye]

What's all the fuss about? Only the brain deads think that Bush would appoint anyone but his proven hand puppet to any position of responsibility. Everyone knows that only the GOP can trust Diane Feinstein. Schummer is a bit of a surprise but Specter isn't. He talks up a big protest but Bush only has to say, "Bad Puppet!...­Sit---roll over" etc.

[missmarple]

Really, it's only for a little while - this guy will be out when the next Administration takes office. What damage could he do in the meantime

If Guiliani wins the election - Mukasey will no doubt stay on as his AG. Remember how close the two of them were in NY! I'd vote for Romney just to vote against Rudy who I think would be even worse than Bush. I've never been as disheartened about my Country as I am today.

[mikegoodyearaz85338]

God bless the loyal Democrats on the Judiciary Committee. If anyone knows about the horror of feeling like you are drowning it is Ted Kennedy.

Oh wait, he was drunk, never mind.

[taikan]

Nobody should be surprised by Feinstein's decision to vote to confirm Mukasey. Although nominally a Democrat, in fact she votes as if she is a Republican on most key issues that do not have a special impact on women (such as lowering taxes for the rich, authorizing the administration to conduct electronic surveillance without a warrant, etc.). However, in order to get elected when she first began in local politics in San Francisco, she ran as a Democrat because it was virtually impossible for a Republican to get elected.

[TheDoomed]

If you're stunned by Feinstein selling out the Democrats for the Republicans I can only imagine how mindblown you are by Joe Lieberman.

[sturgis54]

I am equally stunned by the decisions made by Sens. Schumer and Feinstein to support Attorney General Designee, Michael Mukasey. Have we learned nothing during this past seven years about the willingness of this administration to say or do anything to keep from having their illegal and unethical behavior checked? We now live in a world where America's unrivaled reputation for fairness and justice has been obliterated as we have suspended habeas corpus, engaged in torture, invaded a sovereign country; lied to our brave men and women in uniform, etc., etc. The American people called for a halt during the last election. But, the Democrats who were entrusted to do that have capitulated at almost every turn. I don't care what "deal" or "promise" Judge Murkasey finally made to Sen. Schumer in private that secured his support, nor am I satisfied with the Senator's assurances that Murkasey "said the right things" off the record. If the man who would be AG is unwilling to say that "torture is torture" under oath in front of all Americans and the world, he is very likely to be lying and I reject his private statements. What does it say about any hope that the rule of law and traditional American ideals of true justice and fairness might be restored that Murkasey won't swear to call waterboarding what it is. And, since when have we been satisfied letting our senior government officials surrender certain fundamental rights that our nation holds dear because we'd rather accept the loss of those rights than face more months with no leadership in an office that has almost been destroyed by the current administration? I am ashamed of Sens. Schumer and Feinstein for their surrender. It is now the time for true political courage, Senators, not for inexplicable political calculation. Our nation and its wonderful values are in grave danger.

[NABNYC]

Mukasey has now received support from at least two top Senate Dems (Schumer and Feinstein) which supposedly guarantees his appointment. But why would Schumer and Feinstein fold so quickly?

In about 2004, the U.S. sued a U.S. government employee Franklin who's now doing 12 years in the federal pen, but who also will probably be pardoned by Bush within the year. Mr. Franklin was charged with giving classified information to Steven J. Rosen and Keith Weissman, both big-shots at Aipac. Or, as some would call them, spies.

Why wasn't Aipac charged? Or shut down? Or something? Friends in high places in both parties.

Late last week, the defense subpoenaed Condi Rice, Hadley, Armitage, Wolfowitz, Feith, Elliot Abrams, and other insiders, to testify on behalf of Rosen and Weissman. Reportedly the defense plans to present evidence showing that all the Bush insiders provided top-secret national defense information to Aipac, just as if it was one of the departments of our government.

What is the likelihood that if it went that far, we'd hear about lots of secret meetings between Aipac and all our Congresspeople in which money and information flowed freely. We know that almost every politician takes money from Aipac. What information, if any, has been traded? The defense will argue that Bush insiders disclosed classified information to Aipac, and therefore Rosen and Weissman did not break any laws. But even more interesting is the question of which top Dems may also have given Aipac information.

As an interesting aside, one publication referred to the prosecution of Rosen and Weissman as being like the Julius and Ethel Rosenberg trial. Really.

Nobody wants the truth to come out. The trial keeps getting put over. I anticipate that the government will argue that Rice et al. cannot testify without disclosing secret information, and our new AG Mukasey will dismiss all charges.

The explanation by Feinstein and Schumer to support Mukasey made me fear they were demented. Feinstein and Schumer's decision would make sense if it was to cover up the corruption in their own party.