They’ve Compartmentalized Mukasey from the Corruption

I know, I know, a lot of you want me to talk about Rove in Ohio. But I’ve been distracted with something else so I haven’t had a chance to assess it yet, and anyway, I’ve been pondering this assessment from Scott Horton:

The ultimate problem here is that Mukasey is not paying attention to the matter. Instead he is relying on political flaks at the Justice Department to prepare answers on his behalf, trodding down the same path that destroyed the careers of Alberto Gonzales and Paul McNulty. He has allowed himself to be roped into a series of incorrect statements about specific aspects of the Siegelman investigation. Michael Mukasey needs to recognize that he has brought his tenure at the Justice Department to the edge of a precipice.

Horton is talking, specifically, about the Siegelman investigation in general, but I suspect Horton is right on the money, and not just as it pertains to Siegelman (heck! maybe it pertains to the Ohio allegation as well…).

To support that argument, I point to two exchanges in Mukasey’s testimony before the House Judiciary the other day which suggest he’s not being informed of key issues that Congress regards as critical. First, there was his admission that he only recently realized–presumably between his testimony before the Senate Judiciary Committee, when he refused to guarantee that Congress would learn the results, and that before HJC, when he said Congress would "absolutely" learn the results–that Congress itself requested the OPR investigation of the Siegelman affair.

Davis: Can we see OPR report?

MM: Absolutely. Congress was the complainant. Complainant always informed. If finding of misconduct, then you’ll get the report.

It is inconceivable to me that Mukasey didn’t go into the SJC hearing expecting a question about the Siegelman affair, if for no other reason than all the chatter pertaining to his Siegelman-related subpoena from HJC at the time. But no one thought to inform the Attorney General two key facts: that Congress had requeted the investigation and that, therefore, Congress would be guaranteed to learn of its results. Now, to some degree, this was just bad staff work on the part of DOJ, a failure to prepare for an obvious question. But the effect was to put Mukasey into an antagonistic relationship with Congress, defending something (hiding the results of the OPR investigation) that put the AG into an unnecessarily confrontational position.

Then there’s Mukasey’s claim that the President invoked "Executive Privilege" with regards to Rove’s testimony.

Mukasey: As I understand it, Mr. Rove acted at the request of the President in response to the invocation of Executive Privilege. He has offered to meet with staff, he has offered to discuss the matter–

Now, granted, this is a more ambiguous case of apparent sheer ignorance about a topic bound to come up in a hearing. Perhaps Mukasey was referring to executive privilege more generally, the general concept that the executive branch gets certain privileges which may or may not include the authority to blow off Congress altogether. Or maybe Bush did invoke traditional Executive Privilege without telling Congress. Still, Mukasey’s statement risked mis-stating the actual facts of the case–and you’d think he would have been better prepared for this question. Unless, of course, he was unprepared by design.

Which is why I think Horton’s assessment may well be right on the money–Mukasey’s political subordinates are deliberately keeping him compartmentalized from some of this information. If true, it would be a pretty remarkable tactic, huh? Keep the Attorney General out of the loop with regards to evidence that Karl Rove had (and presumably still) had politicized DOJ. And by doing so, prevent him from actually realizing the extent of the politicization?

  1. TobyWollin says:

    I realize that I seem to always come down to this position with regard to the current Administation, but we’ve either got a guy who knows what is going on(in which case, he’s guilty of a whole bunch of stuff) OR we have a guy who is incompetant. I can’t see there being anything in between for Mukasy. Either he’s a malicious and full partner of the Bush/Cheney/Rove axis or he’s a fool. Was he really put forward by Schumer — or was he suggested TO Schumer by someone in the Administration as someone they’d find ‘acceptable’ to them – and they already knew WHY.

  2. Jim Clausen says:

    He is just a caretaker and not a part of the circle that is trying to cover their collective a$$es. Like always they compartmentalize the information so the Attorney General can answer that he is unaware of any wrongdoing. It’s a state secret, donchaknow?

    The most telling part of his testimony for me was his invocation of absolute immunity, which seems to be a new Addington unitary principle.It does not exist, but certainly will work to run the legal clock(which grinds exceedingly slowly) until our ADD population pull a Sunnstein and wants to heal the counry.

    Dammit, I want Justice, Truth, and Accountibility for the breathtaking usurpation of our Constitution.

  3. Leen says:

    If they have compartmentalized Mukasey from the corruption why would Mukasey have answered this way to Sanchez’s line of questioning?

    “Sanchez: But he has not offered to be under oath or be subjected to a transcript, and my understanding from prior court law–and I would expect an Attorney General to understand this as well–is that if the White House wishes to invoke a claim of Executive Privilege, the witness still has to present himself before Congress and claim that privilege on a question by question basis.

    Mukasey: With all due respect, that’s a matter that is still being litigated on which I can’t comment any further.

    Sanchez: But prior case law has held that that is the case.

    Mukasey: Don’t know that. I know that is a matter under active litigation and is I believe sub judice before a judge in–”

      • MadDog says:

        And it may buttress the fact that Mumbles Mukasey is only focused on sheltering the White House from being “Watergated” and not on the day-to-day operations of the DOJ.

        As was the case with his predecessors, the DOJ is being run out of the White House Counsel’s office, and solely to hide the ball and run out the clock.

  4. WilliamOckham says:

    If you look closely at the document dumps from the US Attorney firings, you can see how the testimony prep is probably going for Mukasey. The WHCO and the DOJ underlings are negotiating the limits on what will be admitted to. They are completely in a defensive, reactive mode. The less Mukasey knows, the less chance he’ll spill the beans inadvertantly in testimony.

    • emptywheel says:


      And given that he’s not an old Bush crony, he’s probably not as willing to lie under oath as Fredo was. So you’ve got to make sure he doesn’t learn these things.

      • PJEvans says:

        I’d think he’d be realizing about now that he needs to know more than he does about a lot of things at DoJ.
        But that assumes he’s smart enough to know Bush and Darth are lying to him, too.

  5. Loo Hoo. says:

    Mayor on Bill Moyers last night:

    MAYER: There was such an atmosphere of intimidation. … They felt so endangered in some ways that, at one point, two of the top lawyers from the Justice Department developed this system of talking in codes to each other because they thought they might be being wiretapped…by their own government. They felt like they might be kind of weirdly in physical danger. They were actually scared to stand up to Vice President Cheney.

    Imagine such an environment.

    • earlofhuntingdon says:

      Oh, I imagine there’s been spying among departments in DC since Jefferson had servants and Hoover his G-Men. What seems new is the level of intrusiveness, the ability to hold and analyze vast amounts of information, and the willingness of a rogue official like Cheney — with the abject submission of the putative President — to act outside the law.

      Congress is as cowed and fearful as Mayer claims were Comey and Goldsmith. Fearful of either Cheney or exposure to the public of how DC works and how much at odds its senior ranks — elected and appointed — are with the population that employs and pays them.

      The MSM is, for economic and social reasons, now the GOP’s junior coalition partner. To promote its own interests, it pretends there is no disconnect, no failure to inform, no inherent conflict between those inside the castle walls and the peasants beyond, the kind of lie the medieval church sold for centuries.

      This is an old fight, as perennial as human ambition, but which is now more virulent than it has been for generations.

    • readerOfTeaLeaves says:

      They were actually scared to stand up to Vice President Cheney.

      I would actually appreciate someone’s explanation (anyone’s!) about how Cheney is so dominating. Okay, he screams and yells? So what?

      I don’t expect a response, but it’s just become bizarre to keep reading about how Cheney seems to have held such ‘power’, and it seems to have been through bureaucratic expertise, but also through intimidation?

      What does this guy do that flips people out so badly?
      At the risk of exposing my abysmal ignorance, I just don’t get it.

      Open to suggestions and insights… assuming that I’m asking something reasonably On Topic.

      • LabDancer says:

        The Big O is a exceptionally quick study. It did not take him long to realize that every minute he served in the Senate reduced his chances of achieving regency. There are a lot of corrosive factors to those who serve in Congress: corruption obviously- less obviously simply falling preyed to being co-opted like survivors Pelosi & Hoyer- or becoming getting marginalized like Leahy & Dodd. As he keeps saying: Now is the time- & of course not just for “us”.

      • PetePierce says:

        The Congress was balless–that is the Democrats for the most part were balless or whatever is politically correct when you want to say that the ladies in Congress and the moron in the Senate Feinstein was ballells–you supply the female anatomy you want to correspond. They were protecting themselves and the voting record shows that on every major vote they voted with Bush and Cheney regardless of what they did or did not do.

        And to whoever supplied the tidbit that “Obama worked for Sunstein” while a Senior Lecturer at U Chi Law. That’s fiction. He worked for the University of Chicago as did Sunstein until Susnstein became engaged to his girlfrfend Samantha Power and moved to Harvard Law as a result.

      • MrWhy says:

        He outs covert CIA agents w/o regard for the consequences for other covert CIA agents or the USA in general. If he’s got a hate on for you, he’s liable to do anything. Hey, he shoots friends in the face and expect them to apologize. Do you want him to notice that he has a very good reason to hate you in particular?

      • Citizen92 says:

        I don’t think the worry is baseless, by any means. Cheney’s men could be anywhere and anywhere. And, as usual, clues are hiding in plain sight. Courtesy of the Plum Book, 2004:

        The annual legislative branch appropriations act (see, for example, Public Law 108–83) and the annual transportation-treasury appropriations act (see, for example, Public Law 108–199) provide funds
        for the Vice President to hire employees to assist him in carrying out his legislative and executive functions. Executive branch employees also may be assigned or detailed to the Vice President (see 3 U.S.C. 112) and the Vice President may employ consultants (see 3 U.S.C. 106(a)). The Office of the Vice President (OVP) consists of the aggregation of Vice Presidential employees whose salary is disbursed by the Secretary of the Senate from the Vice President’s legislative appropriation, Vice Presidential employees employed with the Vice President’s executive appropriation, employees assigned or detailed to the Vice President, and consultants engaged by the Vice President.

        The numbers, titles and salaries of OVP personnel change with some frequency. The salaries of Vice Presidential employees whose salary is disbursed by the Secretary of the Senate from the Vice President’s legislative appropriation cannot exceed a maximum specified by law (see 2 U.S.C. 60a–1). The salaries of Vice Presidential employees whose salary comes from the Vice President’s executive appropriation also cannot exceed a maximum specified by law (see 3 U.S.C. 106). The authority to appoint, administratively determine the pay of, and discharge Vice Presidential employees rests with the Vice President.

        No where else do job descriptions appear for “consultants” to the Vice President. No where in law are these “consultants” codified. No where in legislation is provision made for paying these “consultants” to the VP.

        I bet these “consultants” are probably of the ’security coordinator’ variety. Ones that are very good in the study, use and manipulation of kneecaps.

  6. foothillsmike says:

    When a new admin comes in how quick & deep can the purge at DOJ occur? Can new appointees be put in during the transition? Will they have to have security clearances done before they are allowed access to info?

  7. FormerFed says:

    I have to ask myself why anyone with an apparent outstanding judicial career would let himself be put in this position? Did he really want to be addressed as ‘General’ that badly? I always thought that ‘Judge’ was an extremely honorable title.

    Thus I come to the conclusion that HE is letting this happen. He is not a dumb guy and has been around the centers of power long enough to understand what goes on. What a dishonorable thing for a supposedly honorable person to do. For shame.

    • bmaz says:

      Thus I come to the conclusion that HE is letting this happen. He is not a dumb guy and has been around the centers of power long enough to understand what goes on. What a dishonorable thing for a supposedly honorable person to do. For shame.

      I think that is right. And he knew that was what the job was going to be and he was ready to do the job.

      • earlofhuntingdon says:

        That Cass Sunstein is so close to Obama and a likely pick for the S.Ct. or AG, is not a good sign for those wanting to change business as usual. The usual suspects will remain free on their own recognizance while the government watches only what the rest of us do.

        • PetePierce says:

          I don’t think Cass Sunstein remotely wants to be AG and he’d be light years better than 7 of the justices that SCOTUS is stuck with for years and on another planet from Scalia, Thomas, Kennedy, and Alito.

          Susntein loses more info when he cuts his fingernails than 25 Thomas clones would have.

          • LabDancer says:

            I do not disagree- but there are two possibilities here:

            The first is that this one about Sunstein’s influence- like a great many if not the majority of messages the Big One & his campaign have let out- vaguely implying as it does something about President Obama’s being somewhat more…circumspect…than we would hope- is aimed simply to deflect from the idea of BO having any sort of “agenda”- & particularly God forbid a “LIBERAL agenda”- radically different from the status quo-

            Because as unnerving as it may be to many portsiders, Bush clearly has operated- or at least has led the cheers for the operation of- executive branch powers with a significant degree of pre-authorization by the establishment- what having gone wrong mainly being in that [a] the Water Boy couldn’t make ANYTHING run properly & has broken long-standing records of executive incompetence going all the way back past those of the historians’ Mendoza Line: Buchanan & [2] he’s fouled the GOOP nest to the point even wholesale fumigation may not suffice to restore it to use-

            such that we can reasonably expect that from coronation King BO will rule somewhat left of his Senate voting record-

            and that such necessary dalliances with the Cass Sunsteins of this planet will be no more permanent that the confetti that will flow on Inaugeration Day.

            The second is that we are all being taken for a ride by a con with far more skills than Rove has ever shown.

        • Leen says:

          When I heard what Cass Sunstein had to say about the state of the country right now and his push for “moving on, turn the page, bad for the country to spend so much time holding the Bush administration accountable” has me worried. I hear Obama repeat this bi-partisan theme song far too often. So which one influenced the other Sunstein to Obama or Obama to Sunstein..I don’t have the foggiest. What I do know is that there is no way for this country to move on without holding this group of thugs accountable.

          Unless Sunstein and Obama are perfectly fine with a country filled with zombies with their pedals to the metal and heads in the coulds.

      • masaccio says:

        This is a straightforward issue that can be resolved by a series of questions centered on these: a) name the people you talked to about politicization of the DOJ? b) what kinds of documents have you reviewed? c) have you inventoried the documents (as we use the term in discovery requests).

        If someone sent a letter to the AG raising these points in careful legal language, we could figure out if he is just a tool.

        • bmaz says:

          Aye, but that would require some rudimentary examination skills, so I think the written question format you reference would be much better. Both wings of Congress seem to often be better with the written questions; I think they must have staff counsel do most of the work on those.

  8. earlofhuntingdon says:

    Your and Scott Horton’s argument about how the White House and its DOJ are managing Mukasey is persuasive.

    Gonzales and Ashcroft had the defense that they were among the fools bureaucracies promote with dazzling regularity. They are a needful thing because they open doors for their superiors, close them for others, and sweep up the carpets while ignoring what’s under them. They cannot say “No” to a superior or “Yes” to a subordinate or the outside world. They lie with surprising plausibility because their conscience and imagination, if not always their intellect, are so limited. This administration clones them like sheep.

    Mukasey is none of those things and hasn’t the fool’s defense. He is the captain of the DOJ ship and knows every compartment, connection, seam, switch, hose and line on board. He knows exactly how many turns of the screw will give him what speed, in what conditions.

    If he doesn’t know what’s wrong in the engine room, doesn’t know he’s holed below the water line or that he’s broadside to a rogue wave about to sweep the bridge, it’s because he’s closed his eyes and shut off his gauges. He’s not drunk or incompetent or negligently supervised. And he isn’t only spilling oil that will foul beaches for a generation. His purposeful sin of omission will foul the Republic for a generation.

    With that in mind, perhaps we should no longer accept the hearty recommendation of Chuck Schumer without looking behind the door, under the bed and inside the checkbook.

    • Minnesotachuck says:

      If he doesn’t know what’s wrong in the engine room, doesn’t know he’s holed below the water line or that he’s broadside to a rogue wave about to sweep the bridge, it’s because he’s closed his eyes and shut off his gauges.

      Which begs the question: What do Cheney et al have on him?

      • quake says:

        I don’t want to make any allegations about MMAG specifically, as I know of no specific info, but it is worth remembering that huge amounts of untraceable cash went missing in Iraq, and it would not be surprising if some of it were not lining the pockets of those helpful to the administration (or their relatives). Threats are not the only weapons at Chimpco’s disposal.

  9. rosalind says:

    doesn’t mukasey’s qualifier “If finding of misconduct, then you’ll get the report” make his “absolutely” less than absolute?

    or do complainants only get access to a report if there’s a finding of misconduct?

    • skdadl says:

      That’s one of my questions. That’s quite an “if … then.”

      And EW, are you serious? Mukasey is not reading this blog? I never understand why everyone in the world is not reading this blog.

  10. Neil says:

    They felt like they might be kind of weirdly in physical danger. They were actually scared to stand up to Vice President Cheney.

    Mayer has been a good spokesperson for the truth about out torture. Who is her source?

    Fein makes a great case for impeaching Bush with a prima facie case of extra-legal wiretapping. Bush has admitted to it. There are four area’s I’d like to see Bush be held accountable;

    1. how he started the war against Iraq
    2. torture
    3. illegal wiretapping
    4. corrupting doj

  11. LS says:

    Someone, during the exec. powers hearing, said that the Harriet Miers and Bolten case are before a judge…I don’t remember who said it…but that would explain Mukasey’s comments about EP and having to show up or not.

      • PetePierce says:

        I believe I know the John D. Bates you be speakin’ of:

        Bates is cut completely from the same cloth as Mukasey was on the bench and now as Bush Sylvio Dante consigliere.

        You’re going to get another cowed and compliant Batesian opinion–just like the rest of them that predated this one.

        Let’s see (you gotta be kiddin’ when you expect anything helpful from Bates who is the quintissential little Federalist society robocop:

        John D. Bates was Deputy Independent Counsel for the Whitewater investigation from 1995 to mid-1997. The sheer number of motions decided by all former Water Gate prosecution staffers rewarded by Bush with a federal bench is about 99 to 1 ruling for the gov. Check Amy St. Eve’s motion rulings in any single case she handles. I have.

        He shutdown ACLU when they tried to get Telco Info

        He shutdown Valerie Plame saying the administration could “rebut criticism” from Joe Wilson conveniently forgetting they put her and many others in danger–and this dude is on the FISC.

        In 2002 Bates ruled that 32 Congresspeople had no standing to sue Bush for withdrawing from an ABM treaty.

        He ruled for Dickie the Cheneymeister in the EPA case and against Congress and the GAO. That opinion was quintissential Unitary Executive doctrine–that GAO had no standing to sue the unitary executive.

        Bates ruling to hold Bolten and Miers in contempt–you’ll get Angelina Jolie to cook you dinner and Farvre the potential new Jet to help polish up your post patterns first.

  12. SaltinWound says:

    This ties in with something Im still wondering about. Let’s say Obama is elected. Could he be compartmentalized? If on day one he said he wanted to see everything related to main core, would he get it? Even from private contractors? Is there a secret government with a survival instinct?

    • PJEvans says:

      Since he’ll be inheriting all the power that Bush and Cheney have claimed the President has, he should be able to do that.

      Listening to all the GOoPers complaining about him doing it, and us throwing Bush and Darth back in their faces for precedence, should be amusing.

    • behindthefall says:

      I think that’s about as well put as I’ve heard it — “secret government with a survival instinct”.

  13. darclay says:

    EW when Mukasey made the statement that rove was “acting at the request of the President….” what topic were they asking about, if it was the Siegleman or AAG would that, I think as you pointed out earlier, in effect say the president was involved in this?

  14. PetePierce says:

    Since the US federal government has declared open season on grabbing people, denying them attorneys, denying them discovery, denying them the right to confront witnesses purported against them, then it’s time to turn the tables on people in the Bush administration like Rove and do the same thing to them. Mukasey made this a cottage industry while on the trial court bench in the Southern District of NY ordering the round up of material witnesses who were kidnapped and held under these conditions by DOJ.

    Gleen Greenwald captures Mukasey in his Chicken Hawk chapter in his latest book.

    The place to arrest Rove is at his home not at an event where he’s surrounded by grunts. If some imbeciles are inviting Rove to speak, they are going to protect him.

    How Mukasey who is very aware of the hijacking of DOJ and was aware when he was on the SDNY bench (it was discussed widely at those cocktail parties LHP boasts about going to) will shake out:

    He will continue stonewalling. Nothing will happen to him and he will return to Patterson, Belknap which happens also to be Scott Horton’s old law firm.

    The bottom line is always indifference and laziness. Well over 99% of the population don’t have a clue who Mukasey is or cares. The population that does and can hold him in inherent contempt lacks a set of balls to do so. This leaves the ole net roots making intelligent observations and writing interesting books on the subject but completely powerless to do anything about it or to goose their representatives and Senators to do anything about it.

    All Schumer and Feinstein can do who stupidly praised Mukasey to the skys in his hearing where he would have been confirmed anyway because HJC was 10-9 Republican–they just made it 12-7 is to cluck aimlessly about being disappointed but in reality they aren’t a damn bit disappointed–they’re just worthless.

    • rincewind says:

      All Schumer and Feinstein can do who stupidly praised Mukasey to the skys in his hearing where he would have been confirmed anyway because HJC was 10-9 Republican–they just made it 12-7 is to cluck aimlessly about being disappointed but in reality they aren’t a damn bit disappointed–they’re just worthless.

      Um, no. In Oct of 07 there were 10 Dems and 9 Repugs on Jud, and the final committee vote was 11 (all Repugs + Difi and Chuckie Cheese) to 8 (Leahy, Kennedy, Biden, Kohl, Feingold, Durbin, Cardin, and Whitehouse).

      The full Senate vote was 53 (all Repugs + Bayh, Carper, DiFi, Landrieu, Ben Nelson, Schumer, and LIEberman) to 40 (the rest of the Dems). The 7 Not Voting were McCain, Dodd, Biden, Obama, Clinton, Alexander, and Cornyn. If our pres candidates had shown up/spoken up — and if DiFi and Schumer hadn’t led the way — Bayh and Carper, prob’ly Landrieu, and maybe even poor old Ben Nelson could have been turned from the dark side.

  15. DickDurata says:

    I can believe Mukasey was compartmentalized, but I can also believe that it was done with his knowledge and acquiescence. He has everything to gain by being left out of the loop in this case, except his honor, which is long gone anyway.

  16. earlofhuntingdon says:

    OT, I know many on this site do considerable research on the Net. For those wary of google’s data retention policies, there’s a new metasearch engine that’s recently won a European privacy award:


  17. JohnLopresti says:

    Mukasey: (re: his response from the bench in aftermath of WTC 2001*): “I was the chief judge, and I grabbed the reins which were at that point connected to something. Usually for a chief judge they are not connected to anything…” I think he was making a newYorker homiletic statement about factota, though, to me, Reagan supplied a new meaning to compartmentalization, specifically, one of Bush1’s compartments in which he pursued a halcyon script of governance. I agree that Mukasey’s repartee seems to indicate he reaches beyond his stageprop reins, perhaps his compartmental mode is for the sake of the Republican party.
    *from Q+A after his speech at CommonwealthClubMarch2008SF

    OT: Sunstein saying ‘torcha lite is constitutional’ at a time when Gitmo was still into tocha four years ago.

  18. Dismayed says:

    Why the hell doesn’t the comittee simply send a letter to Bush asking if he’s claiming executive privilege, rather than dancing the hokey-pokey with them. This congress just flat doesn’t seem interested in getting to the bottom of anything. I can only hope they are stalling until aftern November when they will then bring the hammer down. But I fear they are simply putting on one little show after the other, and ulitimately settling not.

    One rule they all know, strength of emotion always diminishes with time. Nice pats on the heads for all you netroots puppies, but sorry no bones.

    Sick of this shit. I want a new congress.

  19. freepatriot says:

    there is a BIG DIFFERENCE between testifying before congress and testifying in front of a Grand Jury

    first off, ignorance isn’t a defense in front of a Grand Jury. If you shoulda known, and YOU DON’T KNOW, we call that Obstruction Of Justice, and we give you ten years in reward for your ignorance


    people get really well informed when they get ten years in prision for every “I Don’t Know”

    the best part is, all of those “I Don’t Know” answers equal a seperate count of MALFEASANCE

    in front of Congress, mukasy has the luxury’s of protecting george bush

    in front of a Grand Jury, I doubt mukasy would be able to protect himself

    January 21, 2009

  20. yonodeler says:

    Mukasey may have been as good an AG nominee as congressional Democrats thought they would see from Bush, but he had enough of a reputation for integrity to garner him the votes for confirmation. He’s been a disappointment to many who thought he might take principled stands on all constitutional matters, but here’s hoping that he has vestiges of integrity that will motivate him to be more concerned about the state of affairs that will be passed to the next administration, rather than meekly covering for Bush administration heavies in everything. He does have the authority to learn much more than he apparently has; should he try to do so and be stonewalled, deceived, or further misused, maybe he’ll decide to go out with some honor—though I’m not counting on it.

    • bmaz says:

      Mukasey has proven beyond any reasonable doubt at this point that he does not have any “vestiges of integrity”. And, quite frankly, I think that it is very arguable that we would have been better off leaving a weaker Keisler, serving only in an acting capacity at the helm of DOJ. I am not even sure which side of that argument I would ultimately take, but I think it could be made.

  21. 4jkb4ia says:

    In the Balkinization post Sunstein wrote that it is “more plausible” that the President can direct “cruel, inhuman, and degrading treatment” short of torture. It is Geneva that prohibits the cruel, inhuman, and degrading treatment. It would be logical to say that if the treatment is less cruel, the President’s authority to order it is more plausible. This does not mean it would stand up under any legal scrutiny.

    Cass Sunstein is not one of the foreign policy alterkockers that Obama has gathered to himself to make himself look serious. Obama has known him well from the U of C for some time and is likely to take his advice seriously even if he doesn’t follow it in the end. I will have to look up how much non-professorial experience he has before I know if we have any danger of having him as AG, in which case there would indeed be few prosecutions.

    • earlofhuntingdon says:

      I think Sunstein and Obama were also at Harvard together, as well as at U of C, where Sunstein was senior to Obama. So, yes, their relationship goes back two decades. Sunstein’s marriage to Samantha Powers, another de facto f.p. adviser to Obama, also at Harvard, keeps Obama’s circle tight.

      That may be good for an election, where letting others know what you’re thinking, even who you’re thinking it with, is a vulnerability in the Rovian world of no-rules dirty tricks in which everybody and everything is “fair” game. But it’s a liability in government, where most advisers are expected to step up to the plate in a packed stadium, tickets for which the public paid a high price, and take the balls and strikes as they’re thrown.

      The good news is that Obama is infinitely more subtle and supple than Bush, more yoga instructor than truck driver. With his intellect and eloquence, changing course when conditions require it ought to be routine. The bad news is that Obama will win in a game whose rules he knows and can now take advantage of. He’s not likely to want to change much of what needs to be exposed and reformed.

      I agree that Sunstein wants the permanent seat on the Court, not the hurly burly management and political exposure that comes with the more fragile seat of power at the DOJ. He’s a heavy-weight intellectual, but his greatest gift seems to be as synthesizer and packager of others’ ideas, which would fit his ambitions for the Court. But he’s to the right of even on Obama on his behavioral economics and the rights he would accord government and corporations rather than individuals and “the public”.

      We need a better counterbalance for the Court’s heavy conservative majority, especially since it’s the members of the liberal wing that will be the first to go.

    • bmaz says:

      I don’t think he is likely to be up for AG, thankfully; however, I see him as a real threat to be named to SCOTUS. I have never particularly cared for him, he has always come down a little to much on the “law and order” side of thing in allowing oppressive and abusive governmental conduct for my tastes. He is certainly no Alito or Scalia or anything, but he is certainly not what a progressive would want in the way of a nominee. He has become more and more prominent in the visible Obama camp and I think the odds are very, very good that he will be Obama’s first choice.

  22. yonodeler says:

    I was careful not to say that honor is an attribute I would bestow upon Mukasey without his being transformed. Many in the public will embrace a public figure who repents of wrongdoing and alters his conduct; within the Bush administration, to do so would likely result in resignation or involuntary discharge. I’d like to see one high-ranking Bush administration official in the term’s remaining months be driven by compunction to take a principled, conspicuous stand against Bush’s and Cheney’s illegal conduct—part of it, anyway. I don’t have any good reason to believe that Mukasey will get his conscience born again, but no one in Washington will get a better chance.

    John Dean now enjoys a regard I could not have imagined during and shortly after the Watergate hearings. Any ranking officer of the Bush administration who’ll be wanting reputation rehabilitation needs to start ruminating immediately.