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

[Macready]

Thank you for posting . . . you are so right Muskasey would be a disaster . . . it says clearly America is in favour of torture .. . it will not uphold the Geneva Convention . . . feinstein and schumer are bush enablers . . . we must watch the votes . . . all who have voted for muskasey that are up for re-election should be marked . . . they are also the one's who will be giving bush more money for the Iraq war; they are the ones blocking impeachment . . . they are and have been bush/cheney enablers . . . they are a disgrace to democracy and the Democratic party

[BabyBoomer]

I have read every piece you have written over the last several years concerning our political leaders. I am ready to change my affiliation to independent. I am beyond disgusted with Schumer and Feinstein as well as all the other Democrats who have lost their way. The idea that the fact of America is one of a lawless aggressor who kidnaps and tortures possibly innocent people is more than I can stand at times. If the Giuliani situation was at all public, which I assume it was, Schumer must have known about this stuff before he promoted his candidacy. I sincerely believe that the "centrists" in the democratic party will be its downfall. Thanks for your principled stands. It's encouraging.

[RedRooster]

Mr. Garbus,

Thanks for sharing your insight into some of the OTHER reasons Mukasey's confirmation is a mistake.

Now, would you care to help us understand what is wrong with our Senate Democrats?

[hopeless277]

Welcome to The United Police States of America. It's going to be a long, dark period in this country's history. Martial law, here we come.