Hearing of the Senate Committee on the Judiciary, Panel II- Nomination of Michael Mukasey to be Attorney General of the United States

Interview

Hearing of the Senate Committee on the Judiciary, Panel II - Nomination of Michael Mukasey to be Attorney General of the United States

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SEN. SHELDON WHITEHOUSE (D-RI): Thank you, Mr. Chairman.

First let me just take a moment to associate myself with the several propositions that Senator Graham just enunciated regarding the value of the rule of law as a force for good and for strength on the part of our country and the world, and his remarks regarding a judicial system that the rest of the world would wish to emulate and be proud of.

That was very well said.

Second, I'd like to recognize Director Freeh, who is here, who I had the honor of working with when I was United States attorney for Rhode Island. He was the director of the FBI, and the Federal Bureau of Investigation under his watch did some really exemplary work in Rhode Island.

And if I may, I will take a sentimental moment to reflect on the accomplishments of Dennis Aiken, who led a remarkable undercover investigation into municipal political corruption and is shortly to retire.

George Rosenberger (sp), who led a very effective investigation into a criminal gang organization that was, I believe, better covered by wiretap and other surveillance than some major Hollywood productions. It was -- he was exceptional. He has just retired.

And Special Agent John Truslow, who did a spectacular job of making a really a really precedent-setting environmental case and shortly thereafter passed away from brain cancer.

And I raise these names not only because Director Freeh is here but because they also represent, along with so many other people who you will shortly, with luck and approval of this committee and the Senate, be supervising and in charge of within the structure of the Department of Justice.

And I have to tell you I'm worried about the Department of Justice. It is an institution that is very significant in American life, and I think it has sustained significant damage. I'm not convinced that simply replacing the person at the top, although necessary, is sufficient to cure the problems that I see. And I wanted to discuss some of these issues with you, Judge Mukasey.

First, just a completely open-ended question, but I would like to get you to say, if you would, for the record about what you consider the role of the United States Department of Justice to be in this country and what its posture should be to the American people.

MR. MUKASEY: The role of the United States Department of Justice is to uphold the rule of law. This is a country that defines itself -- it's the only country in the world that defines itself by a written constitution, the supreme law of the land, and nothing else. We don't define ourselves by blood or territory or a particular history. We define ourselves by the rule of law.

And so the Department of Justice is central to this country's definition of itself. And I don't mean to put myself at the center of this. This isn't -- as I said in my introductory statement, this isn't about me; it's about the Department of Justice. And that's, to me, its role.

SEN. WHITEHOUSE: And what should the American people be able to look to it for?

MR. MUKASEY: They should be able to look to it for the constant, impartial, principled application of the law.

SEN. WHITEHOUSE: The Department of Justice is an institution. It is an organization; it is a bureaucracy. It has rules; it has regulations; it has structure; it has traditions.

In my view, many of those structures, traditions, practices have been developed over many years by people who work in that department and who see it, as you do, as safeguards, to help assure that the decision-making that takes place in the Department of Justice is protected from political interference, personal animosity, other improper motivations. And as much as I think there has been a failure of leadership at the Department of Justice and a rot from the top, as I said, I don't think replacing leadership alone is necessarily enough. Because my sense is that there are structural issues that need to be set right.

I think of things like the rule that lasted for many years that limitation between the -- conversation between the White House and the Department of Justice over pending investigations would be strictly limited, which was taken apart by two separate memos in the previous administration in the Department of Justice.

I think about the long-standing policy that investigations would not be announced shortly before elections, where they'd be likely to influence the outcome of an election, a restriction that was recently removed from the manual of the Department of Justice.

I think about the independent appointment of United States attorneys as men and women from their local communities who get advice and consent of the Senate, and who are not fired except for cause, as a structural protection that helps the department in a kind of internal check-and-balance mode.

I think of the role of career employees as a sort of steadying influence on the Department of Justice. And I think of even in the book by Mr. Goldsmith that Senator Schumer mentioned, he discussed, just within the OLC component of the Department of Justice, the norms and practices, was his phrase, that had developed.

My question to you, sir, is, what will you do to inquire into what norms and practices and protocols and rules and regulations need to be restored, need to be brought back into service to perform the function that they were set up to, which is to provide those protections for the Department of Justice in the exercise of its duties?

MR. MUKASEY: To the extent that I've done any management, including management of the court that I served on, which I recognize was, compared to the management that I'm about to undertake, a sandbox -- I acknowledge that; I'll bring that out on direct -- my style has been a hands-on style. I'm not talking about micromanagement. I'm talking about taking responsibility for decisions and making myself aware of what was going on, in the organization that I was nominally a head of, so that I didn't get surprises.

I will do the same thing in the department. I will talk to the people in the department.

There is such a thing as the Attorney General's Advisory Committee, which, as you know, because you were a United States attorney, is a body of United States attorneys drawn from all over the country on a regional basis who do or should and will, if I'm confirmed, meet regularly with the attorney general, so that the attorney general understands what is going on in those offices, what their problems are, and can do something to help them out and to maintain uniformity of standards.

I will talk to not only the assistant attorneys general at the head of each of the divisions within the department, but also the people within their units. I want to hear not only what the person at the top is saying, but what the people below are saying, so that I can figure out whether decisions are being properly made and, if necessary, tweak them a bit. I believe that I will -- I should have confidence in assistant attorneys general who were appointed to head each unit, and I will, but they're not going to be the exclusive source of information for what's going on.

And I am also going to talk to people who have served in the Justice Department in the past; people I know, some people I don't know.

SEN. WHITEHOUSE: I would --

MR. MUKASEY: Finally, I'm going to talk to -- as I told Chairman Leahy when I met with him, I'm going to talk to this body and the members of it on a regular basis. I can't -- your collective experience with the Justice Department is way greater than mine and would exceed mine if I served from now until I'm cold. So I'm -- I would be foolhardy to abandon that kind of resource, and I won't.

SEN. WHITEHOUSE: I appreciate that you have said that, and I will be very interested in pursuing that process, because I think that the -- I think when we spoke earlier -- by the way, I appreciate not only the time you spent me but the time you spent with all of my colleagues. You have reached out to the senators in a very forthcoming fashion, and I'm grateful to you for that.

And in the course of our discussion, I used the example of a ship's captain who has a fire on board or who hits a rock, and once you've got the fire out or stop the water coming in, the very first thing you do is a damage assessment. And I would urge you to take the discussion that we have just had and go forward with a really fairly formal damage assessment, using all of the tools that you have just indicated you are willing to use and see what needs to be put right.

And in that regard, two specific things I'd like to ask you about. One is, there were memoranda that widely opened the Department of Justice to contact about ongoing investigations from the White House and other officials that is counter to very recent traditions documented in letters between the previous attorney general, the previous White House counsel. And Senator Feinstein again discovered that the manual had been rewritten to take out the provisions discouraging the announcement of investigations at a time when they'd likely influence investigations. There may be hundreds of other such matters, but those are two that in the one minute I have left with you, I'd like you to touch on.

MR. MUKASEY: The question of contact with people within the department about cases is something I've had occasion to address in meetings beginning with Senator Schumer and continuing to other meetings as well. There is a very small list of people who can be contacted by anybody who is an elected official or who purports to speak for an elected official about a case, and the only proper response by anybody else who's contacted is to make that person aware of the people that they can properly contact and in the conversation. And that's going to be the standard that will govern, and I will do that. I will make that known, and that will be the policy and that will be the rule.

SEN. WHITEHOUSE: An elected official includes the president?

MR. MUKASEY: Most emphatically includes the president.

SEN. WHITEHOUSE: Very good.

And with respect to the manual regarding the disclosure or announcement of investigations immediately before elections?

MR. MUKASEY: I think it is obvious that the closer you get to an election, when you have a politically sensitive investigation, the less and less can be the justification for announcing it unless there is some overriding need to go forward, such as lack of a statute of limitations or something of that sort. But other than that, that window keeps closing, and everyone involved in an investigation has to be sensitive to the possibility that announcing an investigation or a prosecution can influence the outcome of an election, and that that is not what investigations are supposed to be for or prosecutions are supposed to be for.

SEN. WHITEHOUSE: Thank you, sir. Mr. Chairman.

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