ATTORNEY GENERAL MICHAEL B. MUKASEY AFTER NINE MONTHS: …

  ATTORNEY GENERAL MICHAEL B. MUKASEY AFTER NINE MONTHS:
          Running Down the Clock to Protect the Bush Administration
                                          Monday, August 18, 2008
With five months of the Bush administration remaining, Attorney General Mukasey appears to be
pursuing a strategy of delay and postponement to provide cover to President Bush and his abuse of
power. In the three months since AFJ's last report, the most important events have come from outside
Mukasey's purview, as the Department of Justice's Inspector General, the House of Representatives,
and private citizens have started the arduous process of holding accountable the Department for failing
to take essential steps to restore its own integrity. In 2009, a new administration and attorney general
must cooperate with these external efforts to rebuild the Department's reputation.

                PROTECTING BROAD EXECUTIVE POWER AT ALL COSTS

Congressional Contempt Case Moves Forward, But DOJ Seeks Stay

Attorney General Mukasey refused to enforce subpoenas issued to John Bolton and Harriet Miers in
the course of Congress' investigation of United States attorneys firings in 2006. The refusal was no
surprise, as the Department of Justice has consistently made the sweeping argument that close
presidential advisers are immune from even appearing before congressional committees. However, the
assertion of such unbridled executive power received a stinging rebuke fromanother appointee of
President Bush. .

The House Judiciary Committee brought a district court case to enforce their subpoenas and on July
31, 2008, United States District Judge John D. Bates--a staunch conservative a senior member of Ken
Starr's prosecution team during the investigation of President Clinton--upheld the committee's
position.
Judge Bates rejected the Departments' arguments that Ms. Miers was "absolutely immune from
compelled congressional process," holding that "the asserted absolute immunity claim here is entirely
unsupported by existing case law." The Department of Justice has nevertheless filed an appeal from
Judge Bates' decision, pressing forward with its meritless arguments to prevent the disclosure of
wrongdoing by President Bush and his closest advisers. Once again, rather than acting as the lawyer
for the American people, the Department is acting in the interest of George W. Bush. Judge Bates will
likely rule on the Department's request that he stay the effect of his own ruling by the end of August,
after which we can expect the Department to continue to press President Bush's arguments for absolute
immunity from congressional oversight in the D.C. Circuit, and possibly the Supreme Court.


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Supreme Court Grants DOJ's Request to Review Immunity for Racial Discrimination

On June 16, 2008, the United States Supreme Court granted the Department's petition for certiorari
seeking review of an important Second Circuit decision in which people wrongfully detained by the
federal government soughtto hold high-level government officials accountable. The Second Circuit
had rejected immunity for Attorney General John Ashcroft and FBI Director Robert Mueller and others
in a case brought by post-9/11 detainees alleging widespread discrimination based on race, religion and
national origin. This appeal to the Supreme Court will be heard by the Supreme Court late in the fall
or winter and could still be reconsidered by a new presidential administration.

Inspector General Confirms Politicization at DOJ, But Mukasey Will Take No Action

In June and July of 2008, DOJ Inspector General Glenn A. Fine, an independent watchdog within DOJ,
issued two scathing reports on politicization of the Department. The first report documented
politically-based hiring during 2006 in the Departments Honors Program, which hires recent law
graduates for career positions, as well as in the Summer Law Intern Program. The report concluded
that two DOJ Screening Committee members "Esther Slater McDonald and Michael Elston, took
political or ideological affiliations into account in deselecting candidates in violation of Department
policy and federal law." Both McDonald and Elston have left DOJ, and Mr. Fine therefore lacks any
authority to take steps to hold them accountable. The report also takes Director of DOJ's Office of
Attorney Recruitment and Management (OARM)Louis DeFalaise to task for his failure to "adequately
or timely address the concerns that were brought to his attention concerning the Screening
Committee's deselections [based on political affiliations]." Mr. DeFalaise remains head of OARM to
this day.

Similar supervisory failures were found with respect to Acting Associate Attorney General William
Mercer, who was faulted for failing to "adequately address the concerns that were brought to his
attention by several senior Department officials that the Screening Committee's deselections appeared
to have been politicized." As the Los Angeles Times recently noted, "Mercer remains the top federal
prosecutor in Montana -- despite periodic calls for his resignation by a federal judge there and by one
of the state's Democratic senators. He is one of only a few U.S. attorneys who may survive all eight
years under Bush." Richard B. Schmitt, William Mercer's charmed life at Justice, L.A. TIMES (July
20, 2008). Specifically, the Times reports that United States District Judge Donald Molloy, of
Missoula, Montana, wrote to Attorney General Gonzales in 2005, "after Mercer accepted a senior
Justice Department job in Washington but refused to surrender his U.S. attorney post . . . trying to get
Mercer fired. The judge, who was appointed to the bench in 1996 by President Clinton, contended that
Mercer was violating a federal law that requires U.S. attorneys to reside in the districts they serve.
Gonzales responded that he saw no impropriety."

Attorney General Mukasey has taken no public steps to reprimand either DeFalaise or Mercer, and has
recently stated that no crimes were committed by any of the named individuals. This led the San
Francisco Chronicle to remark of Mukasey in an editorial: "His shrug-shoulders stance may please the
White House, which wants to bottle up the outrage over its legal over-reaching. But it won't assure

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anyone who was looking to Mukasey, a former federal judge, to be the needed leader to restore
impartiality, restraint and morale in a tarnished department." Mukasey's Misfire, S.F. CHRONICLE
(Aug. 14, 2008).

The second report, issued in July, examined the conduct of Monica Goodling, liaison to the White
House, and others in the Office of the Attorney General. The report concluded that "Goodling
improperly subjected candidates for certain career positions to the same politically based evaluation
she used on candidates for political positions, in violation of federal law and Department policy." The
report also concluded "that in several instances Goodling and one of her predecessors as the
Department's White House Liaison, Susan Richmond, opposed on the basis of political affiliation the
extensions of details for career Department attorneys working in the Office of the Deputy Attorney
General, even though these candidates had the full support of the Deputy Attorney General and his
staff." The report also examined the conduct of Kyle Sampson (then chief of staff to the attorney
general and Jan Williams (Goodling's predecessor) with special focus on the hiring of immigration
judges, concluding that they "inappropriately considered political and ideological affiliations in
selecting immigration judges (IJs) and members of the Board of Immigration Appeals (BIA), all of
which are career positions."

These reports have already prompted the filing of a civil lawsuit by six individuals rejected for
positions at the Department, on behalf of a class of similarly situated people. The case, Gerlich v.
United States Department of Justice, No. 1:08-cv-01134-JDB (D.D.C. amended complaint filed
August 15, 2008), is now pending before Judge Bates, the same judge who rejected the Bush
administration's claim of sweeping absolute immunity for White House officials subpoenaed by
Congress. The plaintiffs in the suit are six lawyers who were rejected for positions in both the Honors
Program and the Summer Law Intern Program. The lawsuit names both the Department itself, as well
as Goodling, Elston, McDonald and former Attorney General Alberto Gonzales. In addition to seeking
$100,000 in damages against the Department for each named plaintiff and each class member, the
lawsuit seeks $50,000 from Goodling and Elston and $25,000 from McDonald for each named plaintiff
and each class member, and declaratory and injunctive relief against future politicized hiring.

                                        LINGERING ISSUES

A handful of issues remain for Mr. Mukasey to address during his final months as attorney general, but
there is no reason to expect greater service of the rule of law in his responses to these than he has
demonstrated with respect to the issues described above:
            · Mr. Mukasey has still made no assessment of numerous allegations of politically-
                motivated selective prosecutions of prominent Democrats by the Department, including
                the prosecutions of former Alabama Governor Don Siegelman and of Georgia
                Thompson, a Wisconsin state procurement official.
            · Mr. Mukasey continues to retain Steven Bradbury as the acting head of the OLC in
                violation of the Vacancies Reform Act. Under this federal statute (5 U.S.C. § 3346), no
                person may serve in an "acting" capacity for more than a total of 630 days in an office
                requiring presidential appointment and Senate confirmation.

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           ·   The report of Inspector General Glenn Fine on his investigation into the firing of United
               States attorneys under Albert Gonzales has still not been released.

                                           CONCLUSION

At the expense of the reputation and integrity of the Department he promised to lead, Attorney General
Mukasey's top priority is giving cover to the Bush administration in the hope that the clock will run
out before Congress, the courts, and the public can learn the full truth of Bush's abuse of the
Department's power. We must now look to a new attorney general in a new administration to bring
the full truth to light; Mr. Mukasey is only an obstacle to restoring the Department.




       Alliance for Justice  11 Dupont Circle, 2nd Floor, Washington, DC 20036  202-822-6070
                                    www.AllianceForJustice.org