The latest front-runner in the Attorney General race is former Chief Judge of the Southern District of New York, Michael B. Mukasey. Judge Mukasey retired from his life-tenured position less than a year ago to pursue a quiet, pastoral New York life-style in Biglaw. Having the good fortune of being a New York lawyer and knowing Judge Mukasey, it only seemed appropriate that I chime in on the subject. After all, former AUSA Andrew McCarthy (another old adversary of mine) took his shot in the National Review. Now, I want to add my support for Judge Mukasey.
During his last year on the bench, I had a case before Judge Mukasey. It went through a hard-fought suppression hearing, where my client risked the enhancement for obstruction of justice by doing the unthinkable, challenging the veracity of a federal agent. The defendant, who had a criminal history level of 4, was tired of letting cops and agents lie about what happened without anyone taking them to task. He was getting on in years, and wanted to take a stand. It was a dream for a criminal defense lawyer, being in the position of fighting the good fight, risking everything for the truth with a client who knew which end was up and still willing to take his chances.
My experience before Judge Mukasey left me with three distinct impressions. First, he was highly intelligent. Second, he was a judge of integrity. Third, he was definite federal judge material, meant in that slightly sarcastic yet pejorative sense.
Before going down the path I just opened, let me remind you that it is highly unlikely that President Bush is out searching for the next Ramsey Clark to finish up the AG term, so let’s not get too crazy about the idea that the next AG is going to be someone with a bent toward Order rather than Law.
So what do I mean by my third distinct impression? That Judge Mukasey, who by the way has a great sense of humor, was one of those judges who would, at the end of the day, accept the clearly manufactured testimony of a government agent as true over the sworn word of a defendant unless there was smoking gun that made it 99% that the defendant was telling the truth and there was some hard evidence upon which he could hang his hat before finding that the clearly manufactured testimony was clearly manufactured. But it’s that 1%, that slightest of cracks, that gives me faith. After all, the federal bench is full of judges who wouldn’t even give you that much of a chance.
In arguing before Judge Mukasey, I could see the furrow of his brow (note: furrow, not furtive, as is the word most prominently enjoyed in courts) and the internal struggle he was having in reaching his decision between the testimony of the defendant and that of the agent. Now this was not a judge who was inclined to doubt agents, believing that they serve our nation well and protect us from the various permutations of bad people who threaten our sanctity and sovereignty. But there is no doubt in my mind that the 1% was there, and that Judge Mukasey was struggling with it.
At the end of the day, Judge Mukasey found against the defendant, and that the clearly manufactured testimony of the agent was credible. He eschewed my argument that the defendant, who knew his way around an arrest like nobody’s business by virtue of having an enormous amount of experience in the care and handling of defendants, would be so flustered and afraid that he would have forgotten how to properly exercise his right to counsel. He ignored the inherent conflict between the agent’s testimony that the defendant never asked to speak with his attorney, and the undisputed fact that after 6 hours in custody, the defendant was finally permitted (and did) call his attorney to alert him to the arrest.
Given all of this, I believe that we would be fortunate at this juncture in American government to have Michael B. Mukasey as our Attorney General. Of my three distinct impressions, the third must be discounted because there is not a shot in hell that the United States is going to get an AG whose concern for the constitutional rights of defendants supersedes their support for law enforcement and order. And indeed, I doubt this country is ready for such an AG, given that we have yet to get past the fear and loathing caused by 9/11 and the threat of terrorism. Even without the political “war” on terrorism, I doubt any of us are ready to let al-Qaida come to our homes for dinner.
So Judge Mukasey comes to us as a man of utmost integrity and intelligence. These traits are harder to find than most people realize, and I hold them in very high regard. I do not, for a second, doubt that Judge Mukasey will stand firm against the politization of Justice, and his foremost job as AG will be to purge the taint that Alberto brought to DOJ as another political arm of the administration. Justice needs an honest broker, and Michael Mukasey fits the bill.
Second, that 1% crack in the armor of pro-Order means a lot to me. One percent is a lot more than none. As I said before, we need to have realistic expectations of who’s under consideration for this position, and the chances of getting a bible-thumping zealot are all too high, despite Harry Reid’s public denouements. To me, that 1% reflects a real human being and that says a lot.
So to my esteemed Senators from New York, Chuck and Hillary (I know you guys read Simple Justice daily), of the luke-warm Democrat persuasion, Judge Michael Mukasey has my support and I hope he has yours as well. I doubt we could do better, and I’m sure we could do worse.
During his last year on the bench, I had a case before Judge Mukasey. It went through a hard-fought suppression hearing, where my client risked the enhancement for obstruction of justice by doing the unthinkable, challenging the veracity of a federal agent. The defendant, who had a criminal history level of 4, was tired of letting cops and agents lie about what happened without anyone taking them to task. He was getting on in years, and wanted to take a stand. It was a dream for a criminal defense lawyer, being in the position of fighting the good fight, risking everything for the truth with a client who knew which end was up and still willing to take his chances.
My experience before Judge Mukasey left me with three distinct impressions. First, he was highly intelligent. Second, he was a judge of integrity. Third, he was definite federal judge material, meant in that slightly sarcastic yet pejorative sense.
Before going down the path I just opened, let me remind you that it is highly unlikely that President Bush is out searching for the next Ramsey Clark to finish up the AG term, so let’s not get too crazy about the idea that the next AG is going to be someone with a bent toward Order rather than Law.
So what do I mean by my third distinct impression? That Judge Mukasey, who by the way has a great sense of humor, was one of those judges who would, at the end of the day, accept the clearly manufactured testimony of a government agent as true over the sworn word of a defendant unless there was smoking gun that made it 99% that the defendant was telling the truth and there was some hard evidence upon which he could hang his hat before finding that the clearly manufactured testimony was clearly manufactured. But it’s that 1%, that slightest of cracks, that gives me faith. After all, the federal bench is full of judges who wouldn’t even give you that much of a chance.
In arguing before Judge Mukasey, I could see the furrow of his brow (note: furrow, not furtive, as is the word most prominently enjoyed in courts) and the internal struggle he was having in reaching his decision between the testimony of the defendant and that of the agent. Now this was not a judge who was inclined to doubt agents, believing that they serve our nation well and protect us from the various permutations of bad people who threaten our sanctity and sovereignty. But there is no doubt in my mind that the 1% was there, and that Judge Mukasey was struggling with it.
At the end of the day, Judge Mukasey found against the defendant, and that the clearly manufactured testimony of the agent was credible. He eschewed my argument that the defendant, who knew his way around an arrest like nobody’s business by virtue of having an enormous amount of experience in the care and handling of defendants, would be so flustered and afraid that he would have forgotten how to properly exercise his right to counsel. He ignored the inherent conflict between the agent’s testimony that the defendant never asked to speak with his attorney, and the undisputed fact that after 6 hours in custody, the defendant was finally permitted (and did) call his attorney to alert him to the arrest.
Given all of this, I believe that we would be fortunate at this juncture in American government to have Michael B. Mukasey as our Attorney General. Of my three distinct impressions, the third must be discounted because there is not a shot in hell that the United States is going to get an AG whose concern for the constitutional rights of defendants supersedes their support for law enforcement and order. And indeed, I doubt this country is ready for such an AG, given that we have yet to get past the fear and loathing caused by 9/11 and the threat of terrorism. Even without the political “war” on terrorism, I doubt any of us are ready to let al-Qaida come to our homes for dinner.
So Judge Mukasey comes to us as a man of utmost integrity and intelligence. These traits are harder to find than most people realize, and I hold them in very high regard. I do not, for a second, doubt that Judge Mukasey will stand firm against the politization of Justice, and his foremost job as AG will be to purge the taint that Alberto brought to DOJ as another political arm of the administration. Justice needs an honest broker, and Michael Mukasey fits the bill.
Second, that 1% crack in the armor of pro-Order means a lot to me. One percent is a lot more than none. As I said before, we need to have realistic expectations of who’s under consideration for this position, and the chances of getting a bible-thumping zealot are all too high, despite Harry Reid’s public denouements. To me, that 1% reflects a real human being and that says a lot.
So to my esteemed Senators from New York, Chuck and Hillary (I know you guys read Simple Justice daily), of the luke-warm Democrat persuasion, Judge Michael Mukasey has my support and I hope he has yours as well. I doubt we could do better, and I’m sure we could do worse.
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The fact that you support it and Glenn Greenwald seems to, make me wonder if this will be another Harriet Myers episode where Bush’s initial pick is withdrawn once the Council of Evil realizes they’re about to appoint a guy who still quaintly believes in the rule of law.