senator patrick leahy on mukasey: 10.18.07

Closing Remarks Of
Sen. Patrick Leahy,
Chairman, Senate
Judiciary Committee

At The Conclusion Of Attorney
General Nominee Michael Mukasey’s Testimony

October 18, 2007

I hope that these hearings turn out to be a step on the road to restoring the Department of Justice.

I noted yesterday when these hearings began that we face the most serious threat to the effectiveness and professionalism of the United States Department of Justice since Watergate and the Saturday Night Massacre.

After Richard Nixon became the only American President to resign from office, President Ford appointed Edward Levi and former Judge Harold Tyler to begin the process of restoring the Department of Justice. Now we have reached another critical juncture. I expedited this hearing because we need an effective and functioning Department of Justice. It is too important an institution in this country to remain dysfunctional. I hope that Judge Mukasey, like another former federal judge with whom he worked, Harold Tyler, will begin to restore the Department’s integrity and reputation and lead it back to fulfilling its law enforcement mission for all Americans. Judge Mukasey testified that the Department must stand for the rule of law. I agree and would add to its mandate that it must stand for justice.

Nothing is more fundamental to our constitutional democracy than our basic notion that no one is above the law. This Administration has undercut that precept time and time again. Just one example of this was the President’s commutation of the sentence given to Scooter Libby, the former chief of staff to the Vice President, who was convicted after a fair jury trial of lying to the FBI and to a grand jury, and of obstructing justice. More and more, we see this Administration promoting immunity over accountability, secrecy over responsiveness to congressional oversight, and unilateral power over the checks and balances that have defined this Nation and protected Americans’ rights and liberties for more than two centuries.

This Administration’s view that the President is above the law and may override it as he chooses is about as extreme a view of executive power as ever I have witnessed. I believe that it is not only dead wrong in constitutional terms, but that it is extremely dangerous to our democracy. The cost to American liberty, our standing in the world, and to the security of our soldiers and citizens is staggering — even more staggering than the trillion dollar cost of the war in Iraq. The Administration has compounded its lawlessness by cloaking its policies and miscalculations under a veil of secrecy, leaving Congress, the courts and the American people in the dark about what they are doing.

Yesterday and today we have had an opportunity for dialogue. I have made clear that I am not satisfied with all of the nominee’s answers. I am especially troubled by his retreat today from his clearer statements yesterday on the rule of law and the President not being above the law. I remain troubled that he also now seems to be positing a system where a President’s overbroad and invalid claims of executive privilege cannot be tested. These are important areas on which we will continue to meet, to talk and to work.

In order to succeed at repairing the damage that has been done, Judge Mukasey must act in accordance with the understanding that the duty of the Attorney General is to uphold the Constitution and the rule of law — not to try to bend the law to the current President’s agenda. Never again can the American Government seek to define torture down in secret and in fundamental conflict with American values and law. I agree with the nominee’s sentiment from his opening statement that “protecting civil liberties and people’s confidence that those liberties are protected is part of protecting national security,” and I would add that they are a fundamental American value and strength.

These hearings can be the start of a new chapter, where American law and values are no longer undercut in secret. The bottom line for this nomination is not that Judge Mukasey will be confirmed but rather how he acts as Attorney General. That will be the real test.

The oversight process –- and an Attorney General’s cooperation with that process – helps forge a constructive working partnership. To paraphrase Ronald Reagan, a confirmation in part is an act of trust, and oversight helps us verify. This Committee, Democrats and Republicans, are ready and willing to work with the nominee. In fact, we have already started.