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

[Janus]

Matt is Right says this:

"roberts is one of the best justices we have ever had..."

What is your opinion of his interpretation of the liberty aspect of Fourteenth Amendment jurisprudence that he disussed in the hearings on his nomination as Chief Justice?
**********­**********­********
"mukasey is a brilliant judge and will be a great attorney general...­"

What aspect of his judicial philosophy do you admire most?

[OckhamsElectricRazor]

Dems with senority should be regarded and treated as Republicans. These false victims of the neo-con acendency used this period to feather their nests and lie down with big money. All Dem and GOP Congressional leadership should be purged!

[peterg76]

Sometimes I wonder if the Republicans just took on all the out-of-work people from the old Soviet criminal justice system.

[DSPinPW]

Look where we are now; we are no longer surprised or express our outrage that the President of the United States and his administration have subverted the Constitution. We express our outrage at the impotent Democratic majority in the House and Senate who enable him by refusing to accept the risk of being labelled "anti-troop" and standing up to him. No guts. No leadership. What do we do? Who can we vote for who will change anything?

Why are we so terrified of "terrorists"? Are we such craven cowards that we will sacrifice our Constitutional rights to be "protected" from them? Has there been even a single iota of proof that these illegal methods have really prevented any terrorist activity?

My father-in-law is a WWII vet. He actually fought a visible, tangible enemy, presumably to protect what America stands for. Now, he is so worried about terrorism that he actually complains that the Constitution should be changed because it makes it too difficult to wiretap!

What happened to him, and to us and to our leaders?

[PoliticalAnimal]

We're all torturers now!!!

[UltraClassic]

Yah, ole big bad Rudy. You got to hate it when he uses every tool in reach to go after the bad guys. You got to hate it when he can't find a tool, he fashions a new one.

All I can say is, NY City was a toilet bowl before Rudy showed up and Rudy has done more in one day to sweep scum off the street than most Huff Posters will do in their entire life time. Also, many Huff Posters enjoy the fruits of Rudy's efforts in NYC such as reduced crime and safer streets but they would never in a 1,000 years admit it and would instead pine away for the good old days with David Dinkens.

[jdm58]

Never in the 1/2 century that I've existed on this planet have I felt more powerless over my government. What happened to "for the people and by the people"? How far down this rabbit hole are we going to drop before we realize we're not only going the wrong way, but we're lost? I've written and called my Congressmen, only to have my requests fall on deaf ears. The next election has all the earmarks of something rigged and pre-determined by the press. Where can we go from here?

[Caddisfly]

What a suprise...­a Bush nominee that could be/would be a mistake. Keep running the same play until they stop you, is/has been the plan all along folks. Better figure it out Amerika

[Balzac]

Chuck Torqamada Schumer.

Dianne Thumbscrews Feinstein.

[The Collinbrandt]

After all the revelations of the abuses of the private contractors, I am starting to have a very sick feeling about the reports of the mass graves that have been found over the years in Iraq. Secretive mass murder is most often a crime carried out by right wing death squads and not terrorist. George H. Bush has been linked in the past to death squads and mass graves in Central and South America. The conclusions are too evil for even myself to imagine but, as a decendent of many policemen and judges, I have to say the modis operandi of mass graves smells more like our current rulers than any terrorist group. Afterall, why cover up your crime if you want to terrorize the general population.

[DatelessNerd]

The rationale of Democrats who are supporting Mukasey reveals how ridiculously spineless the Congressional majority is.

Their thinking is: If we don't confirm an Attorney General who tolerates torture, we might get one who actively promotes it.

Incredible!

[jpshotwheels]

Step One: We are going to have a new Attorney General behind this Bush Regime, that can't figure out if Waterboarding is torture. We have Feinstein, Schumer, and don't forget Arlen Spector. Arlen I thought might be a good Republican, well what do they have on him. We have figured out Feinstein and Schumer.

Step Two: Mark Martin of the FCC has introduced something to allow big media to control all the media and he wants it done by the middle of December. Call, FAX, write the FCC ASAP, by the middle of November. We don't need Fox to take over all the media.

Step Three: War with Iran and now Pakistan is in a shambles. Bush has less than 15 months to finish his project of a Dictatorship, Martial Law, Dissenters will be taken away. Good bye Huffpost and all Liberal Media Good-bye. Welcome to 1984.

[demigod]

I was also flabbergasted that Schumer and Feinstein would vote for this guy, but they said this was the best they could hope for in a Bush nominee, anyone else he would submit would just be worse. 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 ? He couldn't be any worse than Gonzales. What difference does it make ? He actually does Bush damage by his refusal to address waterboarding - it draws attention and national disgust to this barbaric procedure which the Republicans are apparently using.

[nikto]

Democratic Party "opposition" to any & all radical rightwing/­police-sta­te GOP policies is turning out to be just a fake, set-up
Kabuki dance.

I can't help feeling this country has moved past the point of no return and will soon cease to exist as a Democratic Republic.

Maybe a miracle will save us?

Maybe.

But that's what it is going to take,
nothing less--A MIRACLE!

[The Collinbrandt]

I grew up in the generation where torture, suspension of constitutional rights and full on public graft, were the definition of high treason. All these people who support these conservative tatics will one day brought before the likes of Robbes Pierre and only then, will they find justice.