The Caretaker Attorney General
Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
In a perfect world, we'd have a perfect candidate for attorney general of the United States. He or she would have impeccable academic and professional qualifications and would be widely known as one of the best and brightest legal minds of the era. A sparkling resume would show deep public service but no grand partisan designs. Friends, colleagues and even former adversaries would hail the candidate as tough, fair and courageous in the face of public pressures and private doubts.
Having poured over his or her written record, journalists and Capitol Hill staffers would come up only with meager scraps of controversy; maybe a strident position in law school or the representation of a particularly unpopular client or cause. Otherwise, the record would be full of smart, ethical choices -- some popular, others not. Having led an aesthetic life in the law, the nominee would be zealous only in his or her desire to be nonpartisan. Not a crony. Not a hack. Not hitched to some politician's star.
Don't laugh. There are people like that out there in this altogether imperfect world. But they are not candidates to succeed Alberto Gonzales as the 81st chief law enforcement official. And the man who is the candidate, Michael Mukasey, falls short of the ideal. That's the bad news. The good news is that even on his worst days, Mukasey will be a better attorney general than Gonzales was on his best days. The shattered Justice Department will be put to right. The zone of independence it must maintain from the political pressures of the White House will begin to be restored.
Once his nomination is confirmed -- and it will be with less rancor from Senate Democrats than you might expect -- Mukasey will take his place as a caretaker attorney general. It is a role for which he is perfectly cast. A man who is long on legal experience and short on political ambition, and who owes few favors even to the president who nominated him, is precisely the sort of fellow who can undertake the deep, foundational work that must be done to undo the damage wrought by his predecessor. It won't be easy and it won't be completed by January 2009, when a new administration begins, but at least it will start.
Actually, it starts with this hearing before the Senate Judiciary Committee. Mukasey first must reassure the public that the Justice Department is not just President Bush's private law firm. And that means he must unambiguously declare that he will continue to pursue (and, if necessary, expand) both of the internal investigations that were launched as a result of the U.S. attorney scandal. Mukasey, a soon-to-be-former judge, clearly ought to know that anything less than such a declaration will immediately and reasonably create the perception that he is not willing to follow the "case" against his predecessor -- which potentially includes perjury against Congress charges -- wherever the evidence leads. And that's precisely not the right thing to do.
Moreover, Mukasey must use his new stature, and his old job experience, to help come up with a compromise in the dispute between the Congress and President Bush over Gonzales-related subpoenas to current and former White House staffers. He must push his new boss to give up on the draconian idea of allowing Congressional staffers to sit and chat with people like Karl Rove (without notes or having Rove under oath). But he must also pressure lawmakers to limit their desire to make such testimony to immediately public and political. Judges appoint "special masters" all the time to wrestle with sensitive evidentiary questions.
In addition to helping convince us that his Justice Department is no longer a den of partisanship, the new attorney general also must move to reassure the trust and confidence and sense of mission of the thousands of hardworking men and women within the department. They, the ones not fired, suffered great losses of morale and credibility thanks to the decisions of their leaders. Mukasey must say to these earnest people that integrity and professionalism and nonpartisanship, for decades a hallmark at Justice, will once again become a priority. He will have a willing audience; one which, so far anyway, seems collectively relieved to have a chance at new leadership.
What else can and should we expect from Mukasey? We have a right to believe that his Justice Department will take a more long-term approach to its policies and strategies in the legal war on terrorism. No more secret memos, like the one uncovered just a few weeks ago, that places the attorney general's imprimatur on dubious interrogation and detention policies for terrorism suspects. No more late-night, hospital-room visits to ram through another controversial presidential directive or order. From his long perch on the federal bench, Mukasey has gained great expertise in terrorism law. He will now need it.
There are other matters that beggar attention. What will Mukasey do about the spike in violent crime in some areas of the country? How will he improve upon the work his predecessors began in upgrading law enforcement technologies? What are his views on the enforcement of immigration policies? Is the Justice Department now going to revise its position on the use of lethal injection procedures now that the Supreme Court has announced it will review Kentucky's procedures? You can bet that he'll be asked about and graded upon his answers to those questions as well.
But for me Mukasey's confirmation hearing is all about his willingness and ability to look Judiciary Committee members in the eye and clearly and forcefully tell them, the White House, and the rest of us, that there is a new sheriff in town -- literally -- and that the Justice Department once again is going to stand for independence and professionalism. If he can accomplish that, and no more, he's the right man for the job: a caretaker who is smart enough to know how to take care in rebuilding a noble institution laid low by the shoddy conduct of high officials.