OK. So, Mukasey vows to be an independent attorney general. But "independent" is a nuanced word, particularly when we're talking about the Justice Department and the White House, which, last we heard, were part of the same administration. So, are we talking door beads or concertina wire? In the past two years, we've heard a host of tales about how Vice President Dick Cheney and his chief of staff, David Addington, mowed down legal precedents by the bushel even when the poindexters over at Justice found flaws in their rationales. How does Mukasey show he's nobody's patsy, while faithfully executing the president's policy?
"On key issues, especially those involving national security and personal liberty, Mukasey needs to ensure that the voices of career professionals are heard, and he needs to interpose his own personal review, assisted by people like the solicitor general and the deputy attorney general," says WilmerHale partner Jamie Gorelick, former deputy attorney general under President Bill Clinton.
Joe Whitley, former general counsel for the Department of Homeland Security and associate attorney general in the George H.W. Bush administration, says, "There will have to be some equilibrium with the Office of Legal Counsel and the White House Counsel's Office. The president has a right, certainly, to set legal policy, but when it's a purely legal issue, deference should be given to the [Justice Department's Office of Legal Counsel]." And Mukasey offered a good motive for the administration to defer, saying in his confirmation hearings last week that he would resign rather than implement policies that violate the Constitution. That's leverage, Whitley says. "We don't have time to get yet another attorney general."
What's lurking in the files left behind by Alberto Gonzales?
The White House's penchant for concealment and unilateral action is well known, and while giving congressional testimony earlier this year on the administration's warrantless eavesdropping program, then-AG Gonzales hinted that there were other as-yet-undisclosed classified programs related to national security. So what are the chances Mukasey will come across more questionable legal opinions or policies that would further erode the public's trust in the Justice Department if they were revealed?
"One has no way of knowing that, but given the secretiveness of this administration, it would not be surprising," says Mark Agrast, a senior fellow at the Center for American Progress, a liberal think tank, and former counsel to Rep. William Delahunt, D-Mass.
Louis Fisher, a constitutional expert and special assistant to the Law Library of Congress, says one way Mukasey could win over critics would be to redact controversial memos for confidentiality and classified material and then make them available to the public. Says Fisher, "They should be released to the Congress and the public as a way of building trust in an administration with extraordinary powers."
If confirmed, Mukasey has pledged to revisit legal decisions by the department's Office of Legal Counsel. One storm that could be brewing; During confirmation hearings Senate Democrats were less than pleased with Mukasey's somewhat mushy stance on abusive interrogation tactics such as waterboarding.
The Justice Department's Office of Legal Counsel -- the OLC to legal hipsters (if that's not an oxymoron) -- has a serious image problem. Once the most powerful legal office in the federal government that no one outside of Washington had ever heard of, now it is widely perceived to be a shadowy precinct where the Constitution is sent to be bent to the president's policies, rather than the other way around. "First and foremost, the attorney general should reaffirm the importance of the office as an objective expositor of the law as written," says Pepperdine University law professor Douglas Kmiec, who ran OLC during the Reagan and George H.W. Bush administrations. Kmiec is careful not to disparage current OLC head Steven Bradbury (whom he does not know), but he says the OLC should avoid answering hypothetical questions and require the administration to put requests for OLC legal opinions in writing: "No one should pretend to ask for legal advice when, in fact, they're only asking for a post hoc rationalization or justification for what they've already decided to do."
Adds Beth Nolan, a former White House counsel and OLC lawyer under President Bill Clinton: "When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration's pursuit of desired policies."
During his confirmation hearings, Mukasey assured senators that he would always appreciate and welcome their advice -- a promise that could come back to haunt him.
With congressional scrutiny and renewed demands for records and investigations at the Justice Department, Mukasey could find himself spending nearly as much time on Capitol Hill as at Main Justice.
Will Congress give him the space he needs to breathe, or will he spend most of his tenure answering lawmakers' queries and requests, to the detriment of other department priorities?
Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, is hoping Mukasey's pledge was more than pro forma.
"The oversight process -- and an attorney general's cooperation with that process -- helps forge a constructive working partnership," Leahy said last week in closing remarks at Mukasey's hearings.
Even a chief Mukasey supporter, Sen. Charles Schumer, D-N.Y., said the former federal judge shouldn't plan to spend much time pushing new programs. "The department does not now need a series of bold initiatives," Schumer advised Mukasey.
Ex-FBI Director William Sessions, who served under Presidents Ronald Reagan and George H.W. Bush, says that any attorney general will naturally get caught between the White House and the oversight committees, and that Mukasey should expect pressure from Congress. "They've indicated that they will be on top of him," says Sessions, a partner with Holland & Knight in Washington.
"Clearly the Justice Department has lost its mojo," says WilmerHale partner Reginald Brown, former special assistant to President George W. Bush. "I think the most important thing Mukasey can do is fill some vacancies."
In addition to recruiting new bodies, some acting officials, such as the department's No. 2, Deputy Attorney General Craig Morford, could find themselves out of jobs if the White House defers to Mukasey in the staff selection process. But the exodus of division chiefs in the not-quite-twilight of the Bush administration has made appointments to Justice a tough sell. "Who's going to leave a private sector job for less than 18 months and go through that horrible, horrific [confirmation] process, and then leave in less than two years?" says Joseph diGenova of diGenova & Toensing, a former U.S. Attorney for the District of Columbia.
DiGenova says the career lawyers will hang on, whether or not Mukasey and the White House manage to staff the department's senior ranks. Others say that Mukasey can do more than caretake ¿ if he's given the chance.
"I hope he has the agreement of the White House to begin bringing in people to help him, given the shortness of his tenure and the devastation in the senior ranks of the department," Gorelick says.