Dear Judge Mukasey: Advice from DOJ Veterans

BY ANDREA SAENZ

From left

On Monday, October 1, the Berkman Center and the Heyman Fellowship Program hosted a panel of government experts to give some advice to President Bush’s nominee for Attorney General, former federal Judge Michael Mukasey. Assembled in front of a standing-room-only crowd of students and on speakerphone from around the country, and moderated by Senior Heyman Fellow in Residence James Flug, the veterans weighed in on what the new Attorney General will need to do in terms of hiring, prosecutions, national security, and working with the White House. The advice was more than just symbolic: afterward, a transcript of the panel was being sent to Judge Mukasey. Below, a few of the highlights from each of the speakers.

Harvard Law Professor Phil Heymann, former Deputy Attorney General and Assistant Attorney General, Criminal Division:

Heymann stressed that the Attorney General needs to take politics out of prosecutions. “The disturbing about the firings,” he said, referencing the dismissal of United States attorneys last year, “as not that they happened but that they may have happened because of partisan reasons.” When advising the government, Heyman said, giving an opinion on something like torture “must be someone’s best judgment as to what the law is, not the result of influence by political figures.”

Specific to the Criminal Division, Heymann said that the White House and the Attorney General cannot “screw around with the people who gather facts,” explaining that the staffer who reported the existence of racial profiling in searches after stops was asked to leave, and that such things cannot happen.

“You have to trust the DOJ to gave a picture of how the system is working.”

Duke Law Professor Walter Dellinger, former Acting Solicitor General and Assistant Attorney General, Office of Legal Counsel:

Dellinger momentarily turned the focus toward the audience, instructing them that everyone “can contribute by expecting the [Office of Legal Counsel] to issue disinterested opinions, and not succumb to cynicism. The question at OLC, he said, is “‘Who is your client?’ and the one and only answer to that is, ‘The United States of America,'” not the president. While it is appropriate in some vague legal situations to say that a “tie goes to the president,” Dellinger said that Mukasey should make sure to tell President Bush that in the past, presidents who have always gotten the answer they wanted have ended up worse for it.

Harry “Bud” Cummins, former U.S. Attorney, Eastern District of Arkansas:

Cummins began by wryly observing that Mukasey would almost certainly be an improvement as Attorney General, since “it’d be hard to find anyone stupid enough to repeat the mistakes of the last few years, especially with regard to the U.S. attorneys.” Cummins warned about the inevitable point when the Attorney General will have to “choose between the Constitution and the president…Judge Mukasey needs to have the strength to push back and say no.” Both the Attorney General and the U.S. Attorneys do have many quasi-political functions, including adopting the administration’s priorities, allocating resources, and assuring the public of their good work, and every day Mukasey will “be walking that line and examining those limits.”

In terms of specific advice, Cummins suggested Mukasey wait for the coming report on the U.S. Attorney firings by the Office of the Inspector General, and then “officially say what [the DOJ] should have said in January…it appears improper reasoning was taken into account, and it won’t happen again.”

William Yeomans, former Acting Assistant Attorney General, Civil Rights Division:

Yeomans emphasized the importance of personnel management, saying that Mukasey needs to “reestab lish the relationship between the civil service attorneys and the political appointees.” Yeomans said that the Civil Rights Division was particularly hard hit by the hiring of people with little civil rights experience, but with prominent conservative credentials. He suggested Mukasey put out a statement that he understands the importance of career attorneys, do a management review, and look at remedies for past unfair hiring practices.”People have been transferred, they’ve been denied promotions, they’ve been chased out,” he said. Yeomans stressed the importance of fair processes in the DOJ. “That’s one of the things that went so wrong in the voting section of the Civil Rights Division,” he said. “Political appointees were operating basically in disregard of the career staff.”

Donald Ayer, former Principal Deputy Solicitor General and Deputy Attorney General:

Ayer commented that he didn’t want to bash Gonzales’s DOJ too much, but “the political hiring is very serious…hiring partisan graduates from Regent Law School.” Ayer expressed that it seemed like the purpose of Gonzales going to the Attorney General post after Ashcroft was to “make the Justice Department a tool of the White House,” and that Mukasey should communicate to the public that “the long dark night at the Justice Department is over.”

James Baker, DOJ Counsel for Intelligence Policy (on Leave):

Baker warned that Mukasey “has a huge management job ahead of him,” and can expect to spend a lot of time on national security issues. Baker said that maintaining independence is not a simple matter, since when you have a national security investigation that may lead to criminal charges, “there are a lot of moving parts” in deciding when it’s appropriate to move toward a prosecution. “That’s not necessarily a decision he’s going to be able to make in a hermetically sealed box,” said Baker, saying that working well with the president, FBI, and other entities was a difficult and important job.

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