October 4, 2007

Leahy Retreats

Patrick Leahy has capitulated on scheduling confirmation hearings for Michael Mukasey's nomination as Attorney General. Originally, Leahy wanted to hold Mukasey hostage to his demands for internal memos from the White House. However, the Bush administration has apparently proven too tenacious for Leahy:

Sen. Patrick J. Leahy (D-Vt.) signaled yesterday that he will move ahead with confirmation hearings for a new attorney general later this month without reaching a deal on documents that he hoped to obtain from the White House.

But Leahy, chairman of the Senate Judiciary Committee, also said that nominee Michael B. Mukasey will be confronted with a range of questions related to ongoing conflicts between Democrats and the Bush administration, including whether Mukasey would allow prosecution of White House aides for ignoring congressional subpoenas.

In a letter to the nominee released yesterday, Leahy complained that "the White House has chosen not to clear the decks of past concerns," including Democratic demands for documents and testimony about the firing of nine U.S. attorneys. ...

The remarks indicated an end to Leahy's attempt to use the Mukasey nomination to pry loose sensitive information from the White House about the prosecutor firings, the government's warrantless surveillance program and other issues. Leahy's office has been in intensive negotiations with White House counsel Fred F. Fielding since President Bush named Mukasey as the nominee three weeks ago, but no agreement has been reached.

Leahy has yet to announce a date for Mukasey's confirmation hearing, though Senate aides have said it is likely to be held in the third or fourth week of this month. In his letter, Leahy invited Mukasey to a one-on-one meeting Oct. 16, suggesting that a public hearing would be held soon afterward.

The resignation of Alberto Gonzales has taken the wind out of Leahy's sails. The Democratic caucus has lost enthusiasm for the pseudoscandal now that they have a Bush crony's scalp on the wall. The nomination of Mukasey has also dulled their appetite, especially since he comes pre-endorsed by Chuck Schumer.

That leaves Leahy with little leverage to use against the White House. The memos he demanded have always been understood to be protected by executive privilege. The same is true for the subpoenas against the political advisors to the President. The Bush administration won't budge on either, mostly to protect the privilege for succeeding administrations. Leahy finally figured out that Bush doesn't get intimidated by Congressional committees, regardless of which party runs them.

For that reason, Leahy will probably get a disappointing answer to his question about subpoena enforcement against political advisors. In the first place, Leahy is wrong on the law. Congress cannot direct the Justice Department to enforce any law; law enforcement is an executive branch responsibility, not a Congressional prerogative. Congress has to enforce its own subpoenas.

In the second place, the Justice Department cannot interfere with a legitimate exercise of executive privilege, and it's not up to them to determine the legitimacy. The proper process is for Congress to sue for its enforcement, and to allow the federal courts to settle the dispute between the two branches of government. Congress has not done that in this case, probably because Leahy knows that he will lose. Instead, Leahy is more interested in grandstanding and acting unconstitutionally by ordering the DoJ to follow Congress' orders.

It is essentially a stupid and pointless argument. If Leahy wants to continue making it, he will be known as a stupid and pointless Senator. I'd guess that Leahy will give it one last half-hearted try, and then get through the Mukasey nomination as quickly and quietly as possible.


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