Bush picks Mukasey as attorney general

WASHINGTON - President Bush has settled on Michael B. Mukasey, a retired federal judge from New York, to replace Alberto Gonzales as attorney general and will announce his selection Monday, a person familiar with the president's decision said Sunday evening.

Mukasey, who has handled terrorist cases in the U.S. legal system for more than a decade, would become the nation's top law enforcement officer if confirmed by the Senate. Mukasey has the support of some key Democrats, and it appeared Bush was trying to avoid a bruising confirmation battle.

The 66-year-old New York native, who is a judicial adviser to GOP presidential hopeful Rudy Giuliani, would take charge of a Justice Department where morale is low following months of investigations into the firings of nine U.S. attorneys and Gonzales' sworn testimony on the Bush administration's terrorist surveillance program.

Key lawmakers, Democrats and Republicans alike, had questioned Gonzales' credibility and competency after he repeatedly testified that he could not recall key events.

The White House refused to comment Sunday. The person familiar with Bush's decision refused to be identified by name because the nomination had not been officially announced.

Bush supporters say Mukasey, who was chief judge of the high-profile courthouse in Manhattan for six years, has impeccable credentials, is a strong, law-and-order jurist, especially on national security issues, and will restore confidence in the Justice Department.

Bush critics see the Mukasey nomination as evidence of Bush's weakened political clout as he heads into the final 15 months of his presidency. It's unclear how Senate Democrats will view Mukasey's credentials, but early indications are that he will face less opposition than a more hardline, partisan candidate like Ted Olson, who was believed to have been a finalist.

Mukasey has received past endorsements from Democratic Sen. Chuck Schumer, who is from Mukasey's home state. And in 2005, the liberal Alliance for Justice put Mukasey on a list of four judges who, if chosen for the Supreme Court, would show the president's commitment to nominating people who could be supported by both Democrats and Republicans.

Last week, some Senate Democrats threatened to block the confirmation of Olson, who represented Bush before the Supreme Court in the contested 2000 election. Democratic senators have theorized that Bush might nominate Mukasey, in part, because he wanted to avoid a bruising confirmation battle.

The possibility that Bush would pick Mukasey, however, angered some supporters on the GOP's right flank, who have given Mukasey less-than-enthusiastic reviews. Some legal conservatives and Republican activists have expressed reservations about Mukasey's legal record and past endorsements from liberals, and were drafting a strategy to oppose his confirmation even before it became known that Bush had chosen him.

Mukasey was nominated to the federal bench in 1987 by President Reagan. He was chief judge of the U.S. District Court for the Southern District of New York before he rejoined the New York law firm of Patterson Belknap Webb & Tyler as a partner in September 2006.

He first joined Patterson Belknap in 1976 after serving as assistant U.S. attorney in the criminal division of the Southern District, where he rose to become chief of its official corruption unit. During his 18 years as a judge, Mukasey presided over thousands of cases, including the trial of Sheik Omar Abdel-Rahman, who was accused of plotting to destroy New York City landmarks.

In the 1996 sentencing of co-conspirators in the case, Mukasey accused the sheik of trying to spread death "in a scale unseen in this country since the Civil War." He then sentenced the blind sheik to life.

Friday was the last day of Gonzales' 2-1/2 years at Justice. Solicitor General Paul Clement will serve as acting attorney general until the Senate confirms Gonzales' replacement. Gonzales' conflicting public statements about the firings of the U.S. prosecutors led Democrats and Republicans alike to question his honesty. Their charges were compounded by his later sworn testimony about the terrorist surveillance program, which was contradicted by FBI Director Robert S. Mueller and former senior Justice Department officials.

A congressional investigation into the firings recently shifted its focus onto whether the attorney general lied to Congress. The Justice Department also has opened an internal investigation into the matters.

At first, the president backed his embattled attorney general. At an Aug. 9 news conference, Bush said, "Why would I hold somebody accountable who has done nothing wrong?"

A little more than two weeks later, Bush announced that he had "reluctantly" accepted the resignation of Gonzales, who followed John Ashcroft's four-year stint as Bush's first attorney general. Bush said Gonzales, his loyal colleague from Texas who was his White House counsel before heading to Justice, had worked tirelessly to keep the nation safe.

Bush said opposition lawmakers treated Gonzales unfairly for political reasons. "It's sad that we live in a time when a talented and honorable person like Alberto Gonzales is impeded from doing important work because his good name was dragged through the mud," Bush said.

Judge Mukasey Would Make a Stellar Attorney General
A gifted former prosecutor and renowned jurist could be just the right fit.

By Andrew C. McCarthy

It is not exaggeration to say that the United States Department of Justice is among the handful of our nation’s most important institutions. It is the fulcrum of our rule of law.

The department must be above reproach. It must enforce our laws without fear or favor. It must be the place the courts, the Congress and the American people look to without hesitation for the most unflinching recitation of fact and the most reliable construction of law. Creativity is welcome — it is the department’s proud boast always to be home for some of the world’s most creative legal minds. Defense of executive prerogatives is also essential — for the department is not the servant but the peer of the judges and lawmakers before whom it appears, with its first fidelity to the Constitution. Creativity, however, is not invention, and prerogative is not partisanship.

The department must foremost be the Department of Justice. Its emblem is integrity. We can argue about where the law should take us, in what direction it should evolve. We must first, however, be able to know what it is. For that, we must be able to rely without question on the department and its leader, the attorney general.

President Bush is about to select a new attorney general at a particularly tempestuous time. In today’s Washington, even national security has not been spared from our fulminating politics. In the cross-fire, we need stalwart leadership of incontestable competence and solid mooring in the department’s highest traditions. Without it, a growing crisis of confidence will grip not only the courts but field prosecutors across the nation.

To address such a crisis, the president is fortunate to have several able candidates. One I know particularly well, though you may not, would instantly restore the department’s well-deserved reputation for rectitude, scholarship, vision and sober judgment. He is Michael B. Mukasey.

I had the privilege of appearing before Judge Mukasey for nearly three years, from 1993 into 1996, when, as an Assistant U.S. Attorney in the Southern District of New York, I led the prosecution of Sheikh Omar Abdel Rahman and eleven other jihadists who had waged a terrorist war against the United States — bombing the World Trade Center, plotting to strike other New York City landmarks (including the United Nations complex, the FBI’s lower Manhattan headquarters, U.S. military installations, and the Lincoln and Holland Tunnels), and conspiring political assassinations against American and foreign leaders.

The case was bellwether for 9/11 and its aftermath, presenting all the complex and, at times, excruciating issues we deal with today: the obscure lines a free society must draw between religious belief and religiously motivated violence, between political dissent and the summons to savagery, between due process for accused criminals with a right to present their defense and the imperative to shield precious intelligence from incorrigible enemies bent on killing us.

The trial was probably the most important one ever witnessed by … nobody. In an odd quirk of history, our nine-month proceeding began at the same time as, and ended a day before, the infamous O.J. Simpson murder trial. While Americans were riveted to a televised three-ring circus in California, Judge Mukasey, in his meticulous yet decisive way, was demonstrating why our judicial system is the envy of the world: carefully crafting insightful opinions on the proper balance between national security and civil liberties, permitting the government to introduce the full spectrum of its evidence but holding it rigorously to its burden of proof and its ethical obligations; managing a complex litigation over defense access to classified information; and developing jury instructions that became models for future national-security cases.

All the defendants were convicted, and the sentencing proceedings, complicated by the need to apply novel federal guidelines to a rarely used, Civil War era charge of seditious conspiracy, ended in the imposition of appropriately lengthy jail terms. No one, however, could contend that the case had not been an exemplar of our system at its best. Indeed, in an unusual encomium, the Second Circuit Court of Appeals, upon scrutinizing and upholding the judge’s work, was moved to observe:

The trial judge, the Honorable Michael B. Mukasey, presided with extraordinary skill and patience, assuring fairness to the prosecution and to each defendant and helpfulness to the jury. His was an outstanding achievement in the face of challenges far beyond those normally endured by a trial judge.

No one should have been surprised. By the time the Blind Sheikh’s trial was assigned to him, Judge Mukasey had already forged a reputation as one of America’s top trial judges. (In my mind, he is peerless.) That was so because he was also one of America’s most brilliant lawyers. From humble beginnings in the Bronx, he had earned his bachelor’s degree at Columbia before graduating from Yale Law School in 1967. As a judge, he tolerated nothing but the best effort from prosecutors because he had, himself, been a top prosecutor. He well understood the enormous power in the hands of young assistant U.S. attorneys, the need to temper it with reason and sound judgment. He grasped implicitly and conveyed by example that the great honor of being a lawyer for the United States Department of Justice is that no one gets, or should expect to get, an award for being honest and forthright. It is a realm where those attributes are assumed.

In 1988, Michael Mukasey left a lucrative private law practice when President Ronald Reagan appointed him to the federal bench. He was exactly the credit to his court and his country that the president had anticipated. Quite apart from terrorism matters, he handled thousands of cases, many of them high-stakes affairs, with skill and quiet distinction. In his final years on the bench before returning to private practice, he was the Southern District’s chief judge, putting his stamp on the court — especially in the aftermath of the September 11th attacks. Through the sheer force of his persistence and his sense of duty, the court quickly reopened for business despite being just a few blocks away from the carnage. Indeed, it never really closed — Judge Mukasey personally traveled to other venues in the District to ensure that the court’s vital processes were available to the countless federal, state and local officials who were working round the clock to investigate and prevent a reprise of the suicide hijackings.

Characteristically, the judge ensured that the Justice Department was able to do its vital work in a manner that would withstand scrutiny when the heat of the moment had cooled. Judges, himself included, made themselves available, day and night, to review applications for warrants and other lawful authorization orders — no one would ever claim that in his besieged district, crisis had trumped procedural regularity. And as investigators detained material witnesses and scrambled to determine whether they were mere information sources or actual terror suspects, Judge Mukasey made certain that there was a lawful basis for detention, that detainees were represented by counsel fully apprised of that basis, and that the proceedings were kept on a tight leash — under strict judicial supervision, with detainees promptly released unless there was an independent reason to charge them with crimes.

Judge Mukasey’s mastery of national security issues, reflecting a unique fitness to lead the Justice Department in this critical moment of our history, continued to manifest itself after 9/11. He deftly handled the enemy-combatant detention of Jose Padilla (recently convicted of terrorism crimes), forcefully endorsing the executive branch’s wartime power to protect the United States from an al Qaeda operative dispatched to our homeland to conduct mass-murder attacks, but vindicating the American citizen’s constitutional rights to counsel and to challenge his detention without trial through habeas corpus. Later, in accepting the Federal Bar Council’s prestigious Learned Hand Medal for excellence in federal jurisprudence, Judge Mukasey spoke eloquently of the need to maintain the Patriot Act’s reasonable national security protections. More recently, he has written compellingly as a private citizen with unique insight about the profound challenges radical Islam presents for our judicial system.

At this moment in time, the nation would be best served by an attorney general who would bring the department instant credibility with the courts and Congress, provide a needed shot in the arm for prosecutors craving a reminder of the department’s proud traditions, and reassure the public of the administration’s commitment to the department’s high standards. There are precious few people who fit that bill, and of them, Michael Mukasey may be the least well known nationally. But he is as solid as they come. Our country would be well served if he were asked, once again, to answer its call.

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