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Office decoration can say a lot about a man. In the chambers of then-Chief Judge Michael Mukasey of the U.S. District Court in New York, two portraits hung on the wall. One was of Robert Jackson, the former U.S. attorney general and Supreme Court justice, and the other was of Eric Blair, better known as George Orwell. Why would a Reagan Republican have a picture of Jackson, an iconic New Deal Democrat? Mukasey gave a hint during his Senate confirmation hearings for attorney general. It became clear that Mukasey did not value Jackson for his liberal political views, but rather for his vision of justice, which was blind to the natural pressures of partisan politics; Jackson insisted on rigorous independence and impartiality. And what of George Orwell, now cited by civil libertarians distressed by a state addicted to secrecy? Whatever Mukasey may think of the author of 1984, the man Mukasey most values is the author of “Politics and the English Language,” Orwell’s reminder that language matters, that it can shape the culture, and that we must choose our words with care and precision. Mukasey is about to face the most difficult challenge of his career. Morale at the Justice Department has reached a post-Watergate low. The institution is so filled with high-level vacancies that it seems almost decapitated. Few of the most desirable potential candidates seem willing to accept appointments. The department is also under scrutiny. The House Judiciary Committee is studying allegations that Justice brought politically motivated prosecutions, timed to influence elections, against Democrats in Alabama, Georgia, Mississippi, Pennsylvania, and Wisconsin. The Senate Judiciary Committee is focused on allegations that U.S. attorneys were removed and appointed to support a program of political control over the criminal justice system. Both houses are looking at the Civil Rights Division. At the same time, the Bush administration has an affirmative agenda, including pushing through the nominations of judges, changing the Foreign Intelligence Surveillance Act, and, in particular, winning immunity for the telecommunications companies that cooperated with a controversial warrantless National Security Agency program. There is also a growing sense among prosecutors that new counterterrorism legislation is needed. I have tremendous regard for Mukasey, who is a friend and was my partner at Patterson Belknap Webb & Tyler. He may be the one man President George W. Bush considered who actually stands some chance of righting the ship at Justice. But he will sail between treacherous rocks. On one side is a Democratic Congress anxious to see changes in policy on FISA, torture, military commissions, habeas corpus, extraordinary rendition, voting rights, and a host of other issues. On the other side are the movement conservatives at the heart of the administration, who will view any shift by Mukasey on these issues as betrayal. There is no way that Mukasey can make both sides happy. Mukasey’s mission must be to restore to the department the values for which it was once famous: independence, integrity, and avoidance of partisan entanglements. The department’s current troubles can be traced back to its use by the Bush administration to dramatically expand presidential powers and to pursue a partisan political agenda. Mukasey must focus on institutional repair. He must not be consumed by the many policy debates at the department. They include: • U.S. attorneys and political prosecutions. The U.S. attorneys scandal has been on the front burner since the beginning of the year, but inquiries into it are now stalled as a result of Justice Department and White House refusals to comply with requests for documents. The Bush administration’s posture looks like a cover-up. There are also roughly a dozen cases in which reasonably persuasive evidence supports claims that prosecutors were motivated by political considerations in bringing charges against Democratic officials close to election time. In some of these cases, most dramatically the case of former Alabama Gov. Donald Siegelman, evidence has now been adduced linking the prosecution to directions that came from former political strategist Karl Rove or other sources in the White House. Mukasey’s principal objective has to be to restore morale. He can’t do that while conducting an internal investigation of the breadth that these allegations demand. The best solution would be to appoint an independent examiner, probably best a retired judge or prosecutor with impeccable credentials, to look into these cases, make recommendations as to whether dismissals of Justice personnel are warranted, and see whether concerns of misconduct or manipulation justify a special prosecutor. The examiner should be in a position to compel testimony from Justice employees and to examine records. He or she will not have subpoena power, but if the investigation is obstructed, that should be sufficient justification to bring a special prosecutor on board. • Office of Professional Responsibility/Office of the Inspector General. Several cases I have studied, including some caught up in the U.S. attorneys and political prosecutions controversies, reflect conflict between the department’s Office of the Inspector General and its Office of Professional Responsibility. It’s hard to fault the inspector general. However, the OPR often seems to struggle to assert its jurisdiction over cases and then to sit on them. After a while, this pattern begins to look like a cover-up. • Office of Legal Counsel. In 1789, Congress gave the attorney general the power to issue legal opinions binding on all other agencies. This power now rests in the Office of Legal Counsel. After the torture memos, the OLC got a great deal of unwelcome attention. Once a bastion of professionalism and polished reasoning, more recently it has become a major source of embarrassment. Mukasey should make the OLC operations as transparent as possible and make sure that the office draws on legal expertise at other agencies. For interrogation policy, for instance, there is no excuse for the OLC’s failure to consult the lawyers at the Departments of State and Defense who are the real experts. The current head of the OLC, Steven Bradbury, has overstayed his term. Mukasey needs to find someone who commands broad respect in the legal community and who is above the partisan fray. • Military commissions/Guant�namo Bay. Military lawyers in the Guant�namo process consistently point to behind-the-scenes manipulations by the Justice Department when they highlight what has gone wrong with the military commissions for detainees. Much of that activity reflects a lack of confidence in the court-martial system and a refusal to give deference to the military officers who run that system. Defense Secretary Robert Gates recently complained that his initiative to close Guant�namo had been “blocked” by “lawyers in the administration,” a statement interpreted as a reference to Alberto Gonzales’ Justice Department and David Addington, Vice President Dick Cheney’s chief of staff. The easiest route to pursue is to defer to the greater expertise of military lawyers to administer a military court system. Justice’s role should be minimal. Mukasey’s nomination has only one recent parallel: President Gerald Ford’s nomination of Edward Levi as attorney general in 1975. After Watergate, Levi and his deputy, Harold Tyler Jr. (another former partner of mine), focused on restoring the reputation and morale of the department. They did what they could to avoid crippling policy debates and focused on building a department distinctly above the political fray. That approach would serve Mukasey well for the next 14 months. Levi and Tyler worked to recruit top talent to the department. Among their hires: a young prosecutor in New York named Michael Mukasey.
Scott Horton lectures at Columbia Law School and works on military contractor issues for Human Rights First. This commentary first appeared in The American Lawyer , an ALM publication.

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