Like Gonzales, Mukasey refuses to accept that the president of the United States must abide by the laws of the land, beginning with the Constitution. …. actually takes a more extreme position in defense of an imperial presidency than did Gonzales.
When questioned by Judiciary Committee chair Patrick Leahy, D-Vermont and Constitution sub-committee chair Russ Feingold, D-Wisconsin, during the key hearing on his nomination, Mukasey embraces an interpretation of presidential authority so radical that it virtually guarantees more serious abuses of power by the executive branch.
There is no question that one of the ugliest manifestations of that expansion of authority involves the Bush-Cheney administration’s embrace of extraordinary rendition and torture as tools for achieving its ends. But those who focus too intensely on Mukasey’s troubling dance around the waterboarding question make a mistake. Even if the nominee were to embrace the Geneva Conventions — not to mention the 8th Amendment to the U.S. Constitution — and condemn all forms of torture as the cruel and unusual punishment that they are, he would still be an entirely unacceptable choice to serve as the nation’s chief law-enforcement officer.
And while some Democrats on the Judiciary Committee have made their peace with Mukasey — shame on New York’s Chuck Schumer and California’s Dianne Feinstein — the fight to block this nomination cannot be abandoned. Mukasey’s critics on the committee, led by Leahy and Feingold, should do everything in their power to re-frame the debate to focus on the broader question of whether a president can break the law — and on the nominee’s entirely unacceptable answers to it. They should pressure Schumer and Feinstein to reconsider, and they should reach out, aggressively, to “Republicans who know better” such as Pennsylvania Senator Arlen Specter.
Mukasey has made the case against his confirmation more convincingly than any of his critics.
The former judge has defended the administration’s attempts to dramatically expand the definition of executive privilege, telling the Judiciary Committee that it would be inappropriate for a U.S. attorney to press for contempt charges against a White House official who claimed to be protected by a grant of executive privilege. Under this reading of the law, U.S. attorneys would cease to be independent defenders of the rule of law and become mere extensions of the White House.
As such, Mukasey accepts a politicization of U.S. Attorneys far more extreme than that attempted by Gonzales and former White House political czar Karl Rove when they sought to remove U.S. Attorneys who failed to fully embrace the administration’s electoral and ideological goals.
But Mukasey does not stop there.
Under questioning from Feingold, Mukasey endorsed the administration’s argument that congressional attempts to define appropriate surveillance strategies and techniques could infringe inappropriately on presidential authority.
When pressed by Feingold, Mukasey refused to say whether he thought the president could order a violation of federal wiretapping rules. Feingold’s response was measured. “I find your equivocation here somewhat troubling,” said the senator.