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Democrats May Tie Confirmation to Gonzales Papers

By Dan Eggen and Elizabeth Williamson
Washington Post Staff Writers
Wednesday, September 19, 2007

The retired federal judge nominated as attorney general enjoyed a warm reception on Capitol Hill yesterday, but Democrats continued sending mixed signals about whether their dispute with the White House over congressional access to sensitive administration documents will be an impediment to his confirmation.

Michael B. Mukasey, 66, met with key members of both parties, including Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.). Both Leahy and Sen. Charles E. Schumer (D-N.Y.), who also met with Mukasey, said they are hopeful and optimistic that the nomination will be successful, as aides suggested that efforts to reach a deal on the documents were intensifying.

Publicly, Leahy reiterated that it "will be helpful in moving forward" if the White House turns over documents the committee has sought for its probe into actions taken during the tenure of former attorney general Alberto R. Gonzales. Leahy said he continues to have "encouraging" negotiations with White House counsel Fred F. Fielding on the issue but declined to provide details.

"Replacing an attorney general is part but not all of what needs to be done to restore trust in the Justice Department," Leahy said after his half-hour meeting with Mukasey. "The confirmation process can be a catalyst for resolving outstanding issues between the Senate and the administration. I hope that will happen now."

Leahy's remarks leave some uncertainty about how rapidly the Senate might act on Mukasey, whose nomination has otherwise been hailed by Senate Democrats as a conciliatory gesture from the Bush administration.

Leahy and other Democrats, including Schumer, have not specified what they are demanding the White House turn over, nor have they said whether Mukasey's confirmation is contingent on those demands being met.

Mukasey, a conservative New York lawyer who has close ties to former mayor and GOP presidential hopeful Rudolph W. Giuliani, has a record of supporting the use of aggressive legal tactics in counterterrorism efforts that closely tracks -- but does not mirror -- Bush administration policy. Some Democrats have welcomed him as a Washington outsider who disagreed with the administration when he ruled that a detained "enemy combatant" should have access to an attorney.

White House advisers hope he will be easily confirmed by the Senate because he has not been involved in partisan political battles. Spokeswoman Dana Perino said yesterday that the administration would like to see Mukasey approved by Oct. 8 and cited as precedents swift confirmations of past attorneys general. She also said document requests by Senate Democrats should not be tied to the Mukasey nomination.

"We see them as separate tracks," she said.

Mukasey, who did not speak with reporters while at the Capitol, also met yesterday with Sen. Arlen Specter (Pa.), the ranking Republican on the Judiciary Committee, and Minority Leader Mitch McConnell (R-Ky.). Specter called Mukasey a "lawyer's lawyer" and said "you get a very profound answer" when asking him legal questions.

Asked about the documents issue, Specter said Republicans on the Judiciary Committee are "working on it."

While Mukasey's nomination is pending, the Justice Department will be run by former civil division chief Peter D. Keisler, a conservative appointee who this week was a surprise replacement in that role for Solicitor General Paul D. Clement. Clement, who was publicly tagged last month as the temporary replacement for Gonzales, wound up officially taking the helm at 12:01 a.m. Monday and relinquishing it 24 hours later, officials said.

The switch was made on Sunday by the White House with no input from Justice Department officials, said two sources with knowledge of the matter. The change added another level of uncertainty to life at the Justice Department, where nearly every top senior official has resigned in the wake of controversies under Gonzales.

"Peter is the acting attorney general," President Bush said Monday morning as he introduced the nominee to replace Gonzales. "Paul Clement, who agreed to take on this role, will remain focused on his duties as solicitor general, so he can prepare for the Supreme Court term that begins just two weeks from today."

The move raised eyebrows among liberal advocacy groups and Democratic lawmakers who had stalled Keisler's nomination by Bush for a seat on the U.S. Court of Appeals for the District of Columbia Circuit. Keisler's earlier nomination to the U.S. Court of Appeals for the 4th Circuit was blocked by Maryland's senators.

As head of Justice's civil division, Keisler oversaw the administration's defense against lawsuits alleging violations of the rights of U.S. military prisoners at Guantanamo Bay, Cuba. He is a co-founder of the Federalist Society, a conservative legal group, and clerked for Supreme Court Justice Anthony M. Kennedy and former appeals court judge Robert H. Bork. He also helped lead the unsuccessful bid to place Bork on the Supreme Court.

"It's interesting that the White House chose to appoint a lawyer in this way . . . something that would be pleasing to ultraconservatives," said Nan Aron, president of the Alliance for Justice, a liberal group. Washington lawyer Carter G. Phillips, who recruited Keisler to the Sidley Austin law firm in 1999, said he will exert a calming influence at Justice after months of low morale and rocky relations with Congress.

Schumer, who has been in touch with Fielding, stopped short of saying he is brokering a deal but said: "I made it clear to the judge how important it was to solve this. I'm trying to make sure everything works out." Schumer said he talked with Mukasey about habeas corpus issues, wiretapping, "the unitary theory of the executive," and problems in the civil rights division. Mukasey promised he will return with answers.

Schumer said Mukasey told him that he would ensure that only the attorney general or "one or two" top deputies -- not U.S. attorneys -- could field inquiries from politicians on the department's work. The new rule would make it a firing offense for a U.S. attorney to fail to refer such calls to Washington. Schumer believes that element is key to avoiding further scandals.

Mukasey will have a private, half-hour meeting this morning with Senate Majority Leader Harry M. Reid (D-Nev.).

Staff writer Carrie A. Johnson and washingtonpost.com staff writer Paul Kane contributed to this report.

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