Wow. Senators on the Judiciary Committee posed questions on a lot of issues to Attorney General Michael Mukasey, but there is very little to be happy about.
Senator Joe Biden (D-Del.) chose to start his questioning by talking about the politicization of the Department of Justice. He starts with the obvious. He asks Mukasey, when you arrived at the DOJ, was it politicized? Mukasey says when he arrived, he saw a lot of dedicated people, but no, it was not politicized. Biden then asks if Mukasey thinks the criticism of the Inspector General report (discussing the politicization of the DOJ) was justified. Mukasey says yes. Now, I was a little confused but was glad it was not just me. Biden tells Mukasey, “You really are an enigma to me… I find it difficult to understand you.” Join the club.
Next issue. Senator Orrin Hatch (R-Utah) wants to know what Mukasey is doing to fight obscenity. Mukasey reassures him that he is targeting cases of “behavior that we think is disgraceful” that will have the “greatest effect.” He adds that they prosecute cases that are sure winners so they don’t stir people up about things like free speech and expression on more borderline cases. What a relief.
My man Russ Feingold (D-Wisc.) is curious about the new FBI profiling strategies (discussed in this AP article) that may allow them to conduct investigations on individuals with no substantial evidence. Feingold asks if ethnicity or national origin would be enough to investigate someone, to which Mukasey says no. But then Feingold asks, hypothetically, if an American citizen of Pakistani origin, who maybe visits Pakistan occasionally, could be targeted for that alone. No matter how long Feingold tries to get an answer, Mukasey insists that he couldn’t possibly answer a hypothetical question and that the guidelines are not finalized yet, but does not rule it out.
Senator Chuck Schumer (D-N.Y.) is pissed. He asks Mukasey about the investigation into whether the prosecution of former Alabama Governor Donald Siegelman was done for political reasons. Mukasey assures us that the investigation is being conducted quickly and thoroughly, but when Schumer asks him if he promises to make the results public, Mukasey declines. Schumer asks a good question when he inquires, what possible reason would prevent Mukasey from releasing these results to the public? Mukasey doesn’t have an answer and Schumer, visibly annoyed, says “I find these answers very disappointing,” and turns off his mic.
A lot of other issues were brought up including FBI shortages and support for state and local law enforcement, but overall I think the senators tried to deduce whether we could restore our confidence in the attorney general. In his opening statement, Patrick Leahy (D-Vt.) reminded us that the attorney general is not counsel for any individual, party, or administration. He says:
the Department of Justice is not the President’s legal defense team any more than the Attorney General is his lawyer. The Attorney General is not the White House counsel and should not act as one.
But I don’t think Mukasey gave us much reason to think he is of a different flavor. And even if he is conducting business differently now, we should be concerned about his unwillingness to look back. Senator Sheldon Whitehouse (D-R.I.) put it well when he reminded Mukasey that “this is not just about your integrity.” Though he may be an improvement, we still have a stake in what our government was. And as Justice Brandeis once said, “sunlight is the best disinfectant.”