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Sen. Leahy tells Mukasey that his nomination is tied to subpoenas
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10/04/07 03:07 PM ET
Acknowledging the White House’s resistance to complying with Democratic subpoenas, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) told attorney general nominee Michael Mukasey on Wednesday that the executive-privilege fight is now his to resolve.
Leahy had indicated that Mukasey’s confirmation hearings could not begin until the Bush administration met at least some Democratic demands for documents on the U.S. attorney firings and the president’s warrantless wiretapping program. But in a letter to Mukasey released Wednesday, Leahy suggested that he would shift his focus from negotiating with the White House to negotiating with the nominee.
“Regrettably the White House has chosen not to clear the decks of past concerns and not to produce the information and material it should have and could have about the ongoing scandals that have shaken the Department of Justice and led to the exodus of its former leadership,” Leahy wrote to Mukasey. “Those matters now encumber your nomination and, if confirmed, your tenure.”
Republicans have hammered Leahy since he renewed requests for the subpoenaed material, playing up Sen. Charles Schumer’s (D-N.Y.) support for Mukasey and Democrats’ frequent calls for immediate new leadership at DoJ. While Leahy made no mention of preconditions for scheduling a hearing, he outlined questions for Mukasey that presage a contentious confirmation.
On the administration’s warrantless wiretapping program, which Democrats plan to address in a new bill this fall, Leahy told Mukasey: “I want to know whether you will work with us and provide [subpoenaed] materials so that we can examine the legal justifications that have been utilized by this administration to excuse its conduct.”
Leahy also questioned Mukasey on where he stood on the prospect of a contempt-of-Congress citation. The administration has indicated it would block Democrats from pursuing contempt.
Leahy asked Mukasey: “If the House or Senate certified a contempt citation … would you permit the U.S. attorney to carry out the law and refer the matter to a grand jury?”
White House spokesman Tony Fratto cited the administration’s claim to executive privilege on the subpoenaed documents, contending that the standoff with Congress is separate from the Mukasey confirmation.
As for whether Mukasey would weigh in on Leahy’s questions, “I’m certain that Judge Mukasey has views on these issues,” Fratto said. “The best way for all of us to hear these views is to do it with an open hearing.”
By the time a hearing is set, likely later this month, Judiciary panel members of both parties undoubtedly will have pored over the 46-page questionnaire that Mukasey completed just after Leahy sent his letter. In that document, Mukasey refers to GOP presidential candidate Rudy Giuliani as a good friend, prompting Leahy to seek assurances that “should he be the Republican nominee … you will not improperly use your position” to benefit the former New York City mayor.
Mukasey also lists his defense of a “dial-a-porn” company in 1987 as one of his top 10 most significant legal cases. Mukasey’s client in that case was charged with transporting explicit material across state lines, and the nominee successfully argued that a law referring to tangible obscene objects did not apply to pornographic phone calls.
The pornography case presents a potential red flag for conservative groups, which have expressed concerns about Mukasey’s lack of a strong record on abortion and other values issues. But several Republicans on the Judiciary panel, including Sens. Tom Coburn (Okla.) and Orrin Hatch (Utah), said they would not interpret Mukasey’s legal arguments as a statement on his personal views.
“Sometimes even unsavory clients deserve a defense,” Hatch said. “I suspect that’s where this comes from.”
However, Sen. Sam Brownback (Kan.), a rival of Giuliani’s for the Republican nomination, said he would raise the “dial-a-porn” case with Mukasey during the confirmation.
“I want to know what his attitude is toward prosecuting pornography,” said Brownback, who has sent the nominee a copy of last year’s book Pornified: How Pornography is Transforming Our Lives, Our Relationships and Our Families.
Brownback said he already has asked Mukasey about committing resources to the anti-pornography task force started up by former Attorney General Alberto Gonzales, who resigned under a cloud of internal investigation in August. The Kansan also plans to ask Mukasey about his views on the legal debate surrounding abortion.
Asked on Wednesday when he would schedule a hearing, Leahy said the FBI’s background check on Mukasey took longer than he expected, arriving over the weekend. Leahy added that he and Sen. Arlen Specter (R-Pa.) plan to follow up with more questions.
“It would probably be appropriate for me to discuss the date with the White House and the nominee and Sen. Specter than with the press,” Leahy said.
Leahy has asked Mukasey for a second meeting on Oct. 16, potentially dashing the White House’s push for a confirmation hearing that week. A second courtesy visit for a nominee is “a little bit unusual,” Fratto said. “I think Judge Mukasey would be willing to meet sooner.”
Manu Raju contributed to this report.
“Regrettably the White House has chosen not to clear the decks of past concerns and not to produce the information and material it should have and could have about the ongoing scandals that have shaken the Department of Justice and led to the exodus of its former leadership,” Leahy wrote to Mukasey. “Those matters now encumber your nomination and, if confirmed, your tenure.”
Republicans have hammered Leahy since he renewed requests for the subpoenaed material, playing up Sen. Charles Schumer’s (D-N.Y.) support for Mukasey and Democrats’ frequent calls for immediate new leadership at DoJ. While Leahy made no mention of preconditions for scheduling a hearing, he outlined questions for Mukasey that presage a contentious confirmation.
On the administration’s warrantless wiretapping program, which Democrats plan to address in a new bill this fall, Leahy told Mukasey: “I want to know whether you will work with us and provide [subpoenaed] materials so that we can examine the legal justifications that have been utilized by this administration to excuse its conduct.”
Leahy also questioned Mukasey on where he stood on the prospect of a contempt-of-Congress citation. The administration has indicated it would block Democrats from pursuing contempt.
Leahy asked Mukasey: “If the House or Senate certified a contempt citation … would you permit the U.S. attorney to carry out the law and refer the matter to a grand jury?”
White House spokesman Tony Fratto cited the administration’s claim to executive privilege on the subpoenaed documents, contending that the standoff with Congress is separate from the Mukasey confirmation.
As for whether Mukasey would weigh in on Leahy’s questions, “I’m certain that Judge Mukasey has views on these issues,” Fratto said. “The best way for all of us to hear these views is to do it with an open hearing.”
By the time a hearing is set, likely later this month, Judiciary panel members of both parties undoubtedly will have pored over the 46-page questionnaire that Mukasey completed just after Leahy sent his letter. In that document, Mukasey refers to GOP presidential candidate Rudy Giuliani as a good friend, prompting Leahy to seek assurances that “should he be the Republican nominee … you will not improperly use your position” to benefit the former New York City mayor.
Mukasey also lists his defense of a “dial-a-porn” company in 1987 as one of his top 10 most significant legal cases. Mukasey’s client in that case was charged with transporting explicit material across state lines, and the nominee successfully argued that a law referring to tangible obscene objects did not apply to pornographic phone calls.
The pornography case presents a potential red flag for conservative groups, which have expressed concerns about Mukasey’s lack of a strong record on abortion and other values issues. But several Republicans on the Judiciary panel, including Sens. Tom Coburn (Okla.) and Orrin Hatch (Utah), said they would not interpret Mukasey’s legal arguments as a statement on his personal views.
“Sometimes even unsavory clients deserve a defense,” Hatch said. “I suspect that’s where this comes from.”
However, Sen. Sam Brownback (Kan.), a rival of Giuliani’s for the Republican nomination, said he would raise the “dial-a-porn” case with Mukasey during the confirmation.
“I want to know what his attitude is toward prosecuting pornography,” said Brownback, who has sent the nominee a copy of last year’s book Pornified: How Pornography is Transforming Our Lives, Our Relationships and Our Families.
Brownback said he already has asked Mukasey about committing resources to the anti-pornography task force started up by former Attorney General Alberto Gonzales, who resigned under a cloud of internal investigation in August. The Kansan also plans to ask Mukasey about his views on the legal debate surrounding abortion.
Asked on Wednesday when he would schedule a hearing, Leahy said the FBI’s background check on Mukasey took longer than he expected, arriving over the weekend. Leahy added that he and Sen. Arlen Specter (R-Pa.) plan to follow up with more questions.
“It would probably be appropriate for me to discuss the date with the White House and the nominee and Sen. Specter than with the press,” Leahy said.
Leahy has asked Mukasey for a second meeting on Oct. 16, potentially dashing the White House’s push for a confirmation hearing that week. A second courtesy visit for a nominee is “a little bit unusual,” Fratto said. “I think Judge Mukasey would be willing to meet sooner.”
Manu Raju contributed to this report.
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