The Next Hurrah: Mukasey intends to shield Bush from USA scandal in addition to sanctioning torture

Even more than Mukasey's woozy answers on waterboarding, I'm disturbed by his opinions on executive privilege and contempt, partly because I suspect Mukasey would make sure no waterboarding happened going forward, and that his answers on waterboarding are designed primarily to avoid putting those who waterboarded--or signed off on it--in the past at legal risk. But Mukasey's opinions on executive privilege appear designed to protect the White House from any consequences for the USA purge. They appear ready to shore up the firewall preventing further investigation of Rove and Bush.

When Pat Leahy asked Mukasey about executive privilege, Mukasey suggested that DOJ couldn't prosecute Harriet or Josh Bolten or Turdblossom for contempt, because they relied on a DOJ opinion in deciding not to testify.

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So basically, Mukasey is arguing that DOJ can't enforce contempt of Congress, because DOJ has already told the White House officials that they won't be held in contempt. If you look at his written answer to this question, you see why--if DOJ told the White House official they could invoke executive privilege, there would be no way to prove criminal intent, and therefore no reason to call a grand jury.

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I find this answer troubling for a lot of reasons, not least that it means Mukasey, as AG, would allow Bush to continue to hide behind his specious privilege claims (though this doesn't address what will happen after DOJ's IG refers the USA Purge for criminal investigation; certainly, this leaves the possibility that a USA investigation would subpoena the same information).

But I'm particularly disturbed, here, because Solicitor General Paul Clement, in his role as acting AG overseeing an investigation of the DOJ, wrote an opinion that ignores Constitutional provisions.

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This is basic stuff, and goes right to the conduct of the executive in the USA purge (as I've pointed out, the executive didn't object to Congress' ability to legislate how inferior officers are appointed when Hatch snuck through the PATRIOT provision giving the AG power to appoint interim USAs). A key aspect of Clement's opinion--the part where he claims Congress has no legislative interest in this material--violates the Constitution. And that is the kind of thing a Court could rule on.

Yet Mukasey thinks that instead, Bush and Congress should just resolve this through an accommodation process.

(And note, this is precisely the same third-branch-negating argument that the Comey et al relied on in their letter to SJC.)

Sen. Chuck Schumer's early support for Michael Mukasey may end up paving the way for his confirmation, notwithstanding Mukasey's refusal to call waterboarding torture. From Roll Call (sub. req.):

Still, it’s unclear how Schumer will vote on the nomination because the well-known spotlight seeker has been uncharacteristically mum on Mukasey’s continued refusal to clearly define waterboarding — an interrogation technique in which a detainee is subjected to a simulated drowning — as torture and illegal in the United States.

Asked Wednesday whether he was being noncommittal on Mukasey’s nomination, Schumer replied, “I am not commenting at the moment is what I am.” . . .

One senior Senate Democratic aide said Schumer’s credibility with the Democratic Caucus had been damaged somewhat by the issue, because many saw his status as a member of Judiciary and the No. 3 Senate Democratic leader as giving them clearance to praise the nomination when it was first announced.

“That made a lot of Democrats think he must know what he’s talking about,” said the aide. “People followed his lead and now they’re having to dial it back.”

--David Kurtz

Sen. Chuck Schumer (D-NY) said he is “weighing” whether to support the Mukasey nomination. “No nominee from this administration will agree with us on things like torture and wiretapping,” Schumer explained. “The best we can expect is somebody who will depoliticize the Justice Department and put rule of law first.”

WASHINGTON (CNN) -- The confirmation of Michael Mukasey as attorney general was all but assured Friday when two key Democratic senators said they will vote in favor of the nominee despite questions about his views on "waterboarding" and the president's power to order electronic surveillance.

Sens. Dianne Feinstein of California and Charles Schumer of New York announced they would support the retired federal judge from New York just hours after the chairman of the Judiciary Committee announced his opposition to the nominee.

Feinstein and Schumer are members of the Senate Judiciary Committee, which is scheduled to vote on the Mukasey nomination Tuesday.

If all the Republican members of the committee also vote for Mukasey, which is expected, his nomination will go before the full Senate. A leading Democrat, speaking on condition of anonymity, said Wednesday Mukasey is likely to be confirmed if his nomination passes the Judiciary Committee.

Schumer had praised the nomination of Mukasey as a consensus candidate when the president announced Mukasey as his choice to replace former Attorney General Alberto Gonzales. Gonzales gave up the post in September.

"This is an extremely difficult decision," Schumer said.

"When an administration so political, so out of touch with the realities of governing and so contemptuous of the rule of law is in charge, we are never left with an ideal choice. Judge Mukasey is not my ideal choice. However, Judge Mukasey, whose integrity and independence is respected even by those who oppose him, is far better than anyone could expect from this administration."

A number of Democratic senators, however, have said they will oppose Mukasey because of questions about his views on the interrogation technique called "waterboarding" and the president's power to order electronic surveillance.

Waterboarding involves restraining a suspect and using water to produce the sensation of drowning.

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Mukasey told senators this week that he finds waterboarding "repugnant," but he could not answer whether the technique amounts to torture.

While saying "serious questions have been raised about Judge Mukasey's views on torture and on separation of powers," Feinstein said she would support the nominee because the Justice Department needed fresh leadership.

"First and foremost, Michael Mukasey is not Alberto Gonzales. Rather, he has forged an independent life path as a practitioner of the law and a federal judge in the Southern District of New York.

"I believe that Judge Mukasey is the best we will get and voting him down would only perpetuate acting and recess appointments, allowing the administration to avoid the transparency that confirmation hearings provide and diminish effective oversight by Congress."

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President Bush demanded the Senate confirm Mukasey during a speech Thursday at the Heritage Foundation, an influential conservative think tank.

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Sources with knowledge of the CIA-run interrogation program have said agents are no longer using waterboarding. But those sources have said waterboarding was used in the interrogation of Khalid Shaikh Mohammed, now facing trial before a military tribunal for planning al Qaeda's 2001 attacks on New York and Washington.

The practice was used by the Spanish Inquisition, Cambodia's Khmer Rouge and the World War II Japanese military, according to Human Rights Watch. It is specifically banned in U.S. law governing the treatment of prisoners by the U.S. military.