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Michael Mukasey May Be Named AG Monday

Bump and Update: President Bush may announce Mukasey as Attorney General on Monday. Glenn Greenwald has a lot more analysis, particularly on his role in the Padilla case.

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Original Post 9/15
Michael Mukasey Floated as AG Replacement

White House officials seem to be testing the name of former U.S. District Court Judge Michael Mukasey for Attorney General. CNN and the AP are reporting he is now the leading candidate.

I've been reading up on him for the past several hours and will present the pros and cons below.

Preliminary assessment: He's independent-minded, extremely experienced and smart, and while more conservative on terror-related issues than I'd like, far too supportive of the Patriot Act and too close to Rudy Giuliani for comfort, he doesn't run rough-shod over defendants' rights. As compared to Ted Olson, Mukasey is an improvement.

So, who is Michael Mukasey? See below.

Sen. Charles Schumer, who is pushing Mukasey for Attorney General, touted him to Bush for the Supreme Court in 2003.

Mukasey is a decades-long pal of Rudy Giuliani and, like Ted Olson, now serves as a judiciary advisor to Rudy's campaign. Judge Mukasey swore in Rudy Giuliani as Mayor of New York -- twice in two days. One ceremony took place New Year's Eve at Mukasey's apartment.

Mukasey's son, Marc, also a former federal prosecutor, is a partner in Bracewell-Giuliani.

Judge Mukasey presided over the 1993 WTC bombing trial of Sheikh Omar Abdel Rahman and his co-defendants.

He's a firm supporter of the Patriot Act, writing a Wall St. Journal Op-Ed in 2004 that urged, "Before attacking the Patriot Act, try reading it." In it, he mocks the librarians who challenged Section 215, the provision allowing for seizure of library records and he argues in favor of sneak and peek search warrants and notes the legality of roving wiretaps.

When Jose Padilla was initially arrested on a material witness warrant, he presided over those proceedings. He ruled that President Bush had the authority to declare Padilla an enemy combatant but the court had the authority to review the evidence supporting the designation. The Second Circuit later overruled part of his ruling:

[The Appeals court] disagreed with his finding that the president had exclusive authority as commander in chief to arrest and detain, as an enemy combatant, a U.S. citizen on U.S. soil....To the contrary, the court found that, at a minimum, the president would need express congressional authorization for this process and that he had no such authority in this case, either inherently or pursuant to any existing act of Congress.

Mukasey's 102 page decision is here.

On the positive side, over the Government's objections, he ruled Padilla could meet with counsel (not because of any constitutional right to counsel but because he had a habeas claim pending at the time challenging the enemy combatant evidence against him and Mukasey said if he was going to challenge the evidence in court, it was better to do so through a lawyer. He also sharply criticized the Government for its stall tactics in the Padilla case.)

After Jose Padilla's conviction, he wrote this op-ed in the Wall St. Journal on terror trials, suggesting Congress ought to get its act together and consider creating some other kind of tribunal for trying terrorists (besides the federal criminal courts and military commissions.)

He ruled against the Government in the case of former Congressional aide Susan Lindauer who was charged with assisting Iraqi intelligence officials. The Government wanted to force her to take anti-psychotic medications so she would be competent to stand trial. Judge Mukasey said no dice. Among his reasons,

Judge Mukasey also expressed humanitarian concerns about forcing Ms. Lindauer to take medication, which, he said, “necessarily involves physically restraining defendant so that she can be injected with mind-altering drugs.”

In forfeiture cases, when New York seized cars of those arrested for drunk driving, prostitution, drug and gun crimes, Mukasey ordered prompt forfeiture hearings on due process grounds. The city ended up giving back 6,000 cars because it couldn't clear the backlog of cases.

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  • Display: Sort:
    Why? (5.00 / 1) (#7)
    by koshembos on Sun Sep 16, 2007 at 02:48:50 AM EST
    There are no good Republicans for DOJ. Anyone  who supports most of Bush's legal adventures cannot be taken as a seriously objective and sane candidate.

    After all, the whole terror craze is nothing but a tool to subdue the American people and cow them to allow Bush to get away with the biggest distortion of democratic regime to take place since Hitler.

    Georgie Porgie Puddnin' Pie ... ran away? (none / 0) (#1)
    by robrecht on Sat Sep 15, 2007 at 07:30:53 PM EST
    Last weekend, he seemed to be the least offensive name on the short list.  You don't think the WH backed down on Olson, do you?

    Olson a decoy? (none / 0) (#2)
    by sphealey on Sat Sep 15, 2007 at 07:56:48 PM EST
    Or was the Olson "leak" just a decoy?  

    sPh

    Parent

    Or a stalking horse (none / 0) (#4)
    by kovie on Sat Sep 15, 2007 at 08:20:04 PM EST
    I can just hear Barbara Olson and 9/11 being repeated ad nauseum by all the talking heads to generate the requisite sympathy and outrage (Victoria Toensing is probably taking lozenges prophylactically as we speak in anticipation of this).

    Parent
    What about Craig Morford, acting DAG? (none / 0) (#3)
    by kovie on Sat Sep 15, 2007 at 08:17:42 PM EST
    To my knowledge no one's floated his name as a possible nominee, but he is acting DAG right now after the recent departure of McNulty, and apparently would have been first in line to succeed Gonzo as acting AG had Clement not been named to that position.

    I don't know much about him except that he was the USA in Cleveland, OH for many years, and was the man behind the indictment and conviction of former Democratic rep James Trafficante (which I understand may have seen some Seigelman-type manipulation) in 2002. And he appears to be a loyal partisan Federalist Society type in the Olson/Roberts mold.

    Any thoughts about the likelihood that he'd be nominated, what his prospects for confirmation might be, and what kind of AG he would be?

    Ditto for Clement, for that matter.

    I'm inclined to doubt that Olson's actually going to be nominated, or that, at most, as some have written (myself included), he'd be nominated to soften things up for the second, real nominee. Nor do I think that they'll nominate a current federal judge, as they'd be loath to give up a lifetime position for one that will end in 16 months. But you never know with this people...

    My limited experience (none / 0) (#5)
    by Big Tent Democrat on Sat Sep 15, 2007 at 10:06:36 PM EST
    Mukasey was a good judge.

    I (none / 0) (#6)
    by wg on Sun Sep 16, 2007 at 01:48:41 AM EST
    hope he was.
    ---

    Excellent background primer. Thanks Jeralyn!

    His WSJ pieces quoted above are surprisingly  interesting to read, instead of that usual judicial pomposity they sparkle language even content wise, apparently there is a lively, even slightly non-conformist brain here. More interesting personality that those two dour "totalitarians" GWB installed recently in the Supreme Court.

    Most of his observations seem well taken, for example contrary to what some say not everything is bad in the Patriot Act. Some of its provisions strike a reasonable balance between the need to protect the nation and civil liberties of its people.

    Of course there is always one or two highly questionable provisions that get sneaked in pending legislations by Cheney and his people. This apparently doesn't bother him despite the fact that the cumulative effect of such changes could be highly undesirable for the country in the long run. But slow encroachments usually don't get noticed even in judiciary.    

    Much more troubling is the fact that he displays a typical cavalier approach of US judges to civil rights of their fellow citizens.

    That old sentiment "... the storm may enter, the rain may enter but the King of England cannot enter, all his force dares not cross the threshold of the ruined tenement..." means little to him.  Enter as you please - what do I care? - he seems to be saying. We need to find that Osama guy, after all, don't we?

    This doesn't bode well for as the Attorney General he will be directly responsible for the oversight of the FBI and the elementary principle of any oversight is to assume the worst, you may be convinced your average FBI agent is Mother Teresa in the disguise, but to do your job properly you must assume otherwise, that is assume they are perfectly capable of methods as dirty as those used by Hoover, Stasis or KGB.

    Poor Mukasey may not know it, but some people in this country have been paying heavy price for his and his colleagues' cavalier approach to the oversight of law enforcement people.


    Good work... (none / 0) (#8)
    by BlueBerry PickN on Mon Sep 17, 2007 at 12:32:20 AM EST
    always enjoy reading TalkLeft to get a bird's eye view of the players & machinations...

    Spread Love...
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    Craig Morford (none / 0) (#9)
    by Eliot Ness on Mon Sep 17, 2007 at 10:01:06 AM EST
    Things here in Washington are almost never what they seem: http://www.craig-morford.com

    Similarly, academia: http://www.cmu-fraud.com

    Which is why local sheriffs and mayors should be sent to Congress rather than academics and lawyers.