Leahy Sends Letter To Mukasey,
Outlining Key Questions And Concerns
To Be Addressed In Confirmation Hearings
WASHINGTON (Wednesday, Oct. 3) – In preparation for
their upcoming meeting and the confirmation hearing for Attorney General
nominee Judge Michael Mukasey, Senate Judiciary Committee Chairman
Patrick Leahy (D-Vt.) has written the nominee a letter with several
areas of concern.
In his letter, which was sent Tuesday morning,
Leahy provided Judge Mukasey with questions on the mass firings of U.S.
Attorneys and the politicization of the Department of Justice, on the
legal justification of the warrantless wiretapping program, on concerns
about the expansion of government secrecy and Executive power, and on
the importance of ensuring that the Department of Justice performs its
federal law enforcement role independently.
Leahy wrote, “We will need to explore with you how
you would ensure the independence of federal law enforcement from
political pressure, what steps you would take to restore morale at the
Department and the public’s trust in the Department, and whether you
would uphold constitutional checks on Executive power.”
Leahy is scheduling a meeting with the nominee and
sent the letter to help ensure that the confirmation hearings will be
“substantive, thorough and responsive on the key challenges the next
Attorney General will face in beginning to restore credibility to the
Justice Department.”
The Judiciary Committee received Mukasey’s
completed questionnaire Tuesday evening. It is available online:
http://leahy.senate.gov/press/200710/Mukasey_questionnaire.pdf.
The text of the letter is below.
PDF
October 2, 2007
Hon. Michael B. Mukasey
Patterson Belknap Webb & Tyler LLP
1133 Avenue of the Americas
New York, NY 10036
Dear Judge Mukasey:
I look forward to scheduling and chairing the
confirmation hearing on your nomination to serve as the Attorney General
of the United States. I also look forward to your response to the
Judiciary Committee’s questionnaire, and we may have additional requests
for background information that would be helpful to the Committee in
preparation for the hearing.
As I told you when we met the day after your
designation, I look forward to meeting with you and having a substantive
discussion before the hearing. I propose that we meet on Tuesday,
October 16, at 10 a.m., if that is convenient for you.
I also mentioned when we first met that I would
provide you with some of the topics that concern me. 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. Those matters now
encumber your nomination and, if confirmed, your tenure.
We will need to explore with you how you would
ensure the independence of federal law enforcement from political
pressure, what steps you would take to restore morale at the Department
and the public’s trust in the Department, and whether you would uphold
constitutional checks on Executive power.
The mass firings of the U.S. Attorneys appointed by
this President were unprecedented. I will inquire whether you share my
view that the integrity and independence of federal law enforcement
should not be compromised by political operatives from the White House.
I will ask for your assurance that the Department of Justice and, in
particular, our U.S. Attorneys, will not be employed in upcoming
elections to seek to affect the outcome. The Department of Justice
should be working to protect Americans’ right to vote and have their
vote count, not seeking to swing close elections into a partisan column
by leaking allegations of corruption or bringing last minute legal
actions alleging voter fraud.
A related matter of significant concern to a number
of Members of the Committee is the recent rewriting of the Department of
Justice’s guidebook on “Federal Prosecution of Election Offenses.” It
not only changed from the “red book” to the “green book,” but the
traditional practice of not bringing last-minute investigations and
actions was turned on its head. The traditional version of the
protocol, part of which I read to former Department of Justice official
Bradley Schlozman at our June 5 hearing, provided: “In investigating
election fraud matters, the Justice Department must refrain from any
conduct which has the possibility of affecting the election itself. . .
Thus, most, if not all, investigation of an alleged election crime must
await the end of the election to which the allegation relates.” As
recently revised under the outgoing, discredited leadership group, it
provides great latitude for the Department of Justice to influence the
outcomes of elections. Will you reassure us that under your leadership
that these guidelines will be changed back to the time-honored rules?
That is a concrete step you can take at the outset to set a new tone.
Another aspect of this concern is your close
association with a candidate for the Republican nomination for
President. Given that longstanding relationship, what assurances can
you give the Committee, the Senate and the American people, should he be
the Republican nominee, that you will not improperly use your position?
The White House press operation suggested last weekend that you would
recuse yourself from matters involving Mr. Guiliani. Is that true, and
would that recusal include the Republican presidential campaign if he is
the Republican nominee?
From our earlier meeting I know that you knew and
worked with Judge Harold Tyler. I have admired Judge Tyler. He, too,
was faced with restoring the Department of Justice when he served as the
Deputy Attorney General in 1975, following the Watergate scandal and the
resignation of President Nixon. Likewise, I think we both view Attorney
General Robert Jackson’s 1941 speech to U. S. Attorneys as striking the
right chord on the role of the Department of Justice and the
independence of federal prosecutors. If they, Elliot Richardson and
Edward Levi are your models, I will look forward to working with you to
restore the Department.
In that connection, I note that as the House
Judiciary Committee was considering contempt citations for former White
House officials this summer, a senior Administration official said that
a U.S. Attorney “would not be permitted to bring contempt charges or
convene a grand jury in an executive privilege case” and that a U.S.
Attorney would not be “permitted to argue against the reasoned legal
opinion that Department of Justice provided.”
Under applicable statutes and practices, contempt
citations against Administration officials by the House and Senate would
be certified to the U.S. Attorney for the District of Columbia to bring
before a grand jury for its action. If the House or Senate certified a
contempt citation against current or former White House officials
arising from the U.S. Attorney investigation, would you permit the U.S.
Attorney to carry out the law and refer the matter to a grand jury as
required by 2 U.S.C. § 194? If the White House sought to prevent the
U.S. Attorney from bringing contempt charges to a grand jury as required
by law, would you take any action to prevent the U.S. Attorney from
doing so?
More generally, what would you do as Attorney
General if you learned that a White House official had called a U.S.
Attorney asking for information about an on-going criminal
investigation? What would you do as Attorney General if you learned
that a Member of Congress had called a U.S. Attorney asking for
information about an on-going criminal investigation?
What will you do to ensure that legal advice from
the Department’s Office of Legal Counsel (OLC) is independent and
protected from political influence?
While you can set an example and a tone at the
Department of Justice, you cannot effectively manage it by yourself.
Who will be the members of your team to help turn the Department
around?
Other key issues arise from this Administration’s
abuse of secrecy and expansion of executive power. Policies enacted by
this Administration have encouraged Department of Justice officers to
withhold information under the Freedom of Information Act (FOIA), the
bedrock statute that opens our government to its citizens. Will you
commit to review and consider overturning these policies, and supporting
legislation Senator Cornyn and I have sponsored to reform FOIA, so that
the presumption of openness which is at the heart of FOIA is restored
for the American people?
The Attorney General who recently resigned
apparently believed that the President has a commander-in-chief override
of the laws of this country, which contributed to his violations of the
Foreign Intelligence Surveillance Act (FISA), his signing statement
reservations, and other overreaching. We must explore those topics.
For example, do you believe that the President has authority to override
legal requirements and immunize acts of torture contrary to our treaty
obligations and laws? Do you believe that before Congress amended the
FISA this summer, the Authorization for the Use of Military Force passed
in the days following September 11, or Article II of the Constitution
gave this President authority to override the requirements of that law
with respect to wiretapping Americans?
In connection with these matters the Judiciary
Committee has been seeking the historical legal analysis of the
Department of Justice and this Administration. We have made numerous
requests and have even had to subpoena the FISA documents. I want to
know whether you will work with us and provide those materials so that
we can examine the legal justifications that have been utilized by this
Administration to excuse its conduct.
Similarly, in light of the failure of the White
House Counsel to provide even a privilege log to substantiate his
blanket claim of executive privilege for all information relating to the
U.S. Attorney firing scandal, we need to consider that matter together.
I want to know your view of executive privilege. Do you view it as a
communications privilege or something else? Do you think it extends to
the actions and emails of political operatives in matters in which the
President was not personally involved?
With so much to do and so much damage that needs to
be repaired, I had hoped that the White House would have taken advantage
of the time since the resignations of Mr. Gonzales and Mr. Rove to work
with us to fulfill longstanding requests for information so that we
could all agree about what went so wrong at the Department of Justice
and work together to restore it. Instead, they have left you to answer
the unanswered questions and left longstanding disputes unresolved.
Sincerely,
PATRICK
LEAHY
Chairman
