Mukasey Vague on Handling of Potential Contempt Citations

Posted October 17, 2007 at 12:49pm

While using Wednesday’s hearing to assure Senators he would uphold the rule of law if confirmed as attorney general, Michael Mukasey left unclear whether he would enforce contempt of Congress citations if he becomes the nation’s chief law enforcement officer.

Asked by Judiciary Chairman Patrick Leahy (D-Vt.) on Wednesday morning what he would do if faced with such citations, Mukasey demurred by saying the district attorney would first evaluate whether individuals advising the president had an “unreasonable” claim to executive privilege.

As for a potential clash with Congress over the issue: “I hope and pray for a lot of things,” Mukasey said, adding that he hopes he “won’t ever have to make that decision.”

President Bush nominated Mukasey, a former judge, to replace disgraced ex-Attorney General Alberto Gonzales, who resigned in August after Congressional Democrats attacked him for running a politicized department.

The former judge appears to have bipartisan support and is likely to be confirmed. In fact, he was introduced and praised by Sen. Charles Schumer (D-N.Y.), who spearheaded the ouster of Gonzales over the prosecutor probe and favored Mukasey as his replacement.

Mukasey promised Senators in the opening hours of his confirmation hearing that he would put the law before politics; review key legal justifications for controversial policies involving torture, detention of suspected terrorists and warrantless wiretapping; and make hiring for widespread staffing vacancies at Justice a top priority.

“Politics, partisan politics, plays no part in the bringing of charges or the timing of charges,” Mukasey testified.

Leahy questioned the former judge about the alleged improper intervention by two New Mexico Republicans — retiring Sen. Pete Domenici and Rep. Heather Wilson — into an investigation by ousted U.S. Attorney David Iglesias.

Aside from a very small handful of people, Mukasey answered, “People in the department should not be allowed to take calls or make calls from political figures to talk about cases.”

Mukasey’s nomination comes on the heels of wide-ranging charges of improper behavior by former Justice Department officials, including Gonzales. In order to get to the bottom of why nine federal prosecutors were fired in 2006, Congressional Democrats have subpoenaed records and testimony from former and current top White House officials, including former senior political guru Karl Rove.

But the White House has refused, so far, to the Democrats’ terms, and the House Judiciary Committee issued a contempt citation to White House Chief of Staff Josh Bolten for documents and ex-White House counsel Harriet Miers for her testimony. The full House may consider the citation in November.

The Senate Judiciary Committee has yet to act on similar subpoenas to Bolten, Rove and former White House political director Sara Taylor.

If the House or Senate approves a contempt citation, Democrats believe the law requires the U.S. attorney for the District of Columbia to convene a grand jury. But during the Gonzales controversy, the White House said point blank it would not enforce such a proceeding.

In his opening round of questions, Leahy asked Mukasey what he would do if presented with such a situation.

“Unless the U.S. attorney can say it was unreasonable … to have relied on a privilege for an order from the president,” Mukasey said, that individual “can’t be found to have had a state of mind necessary to charge with contempt.”