By Carrie Johnson
Washington Post Staff Writer
Sunday, July 20, 2008
From a book-lined den on the fifth floor of the Justice Department, the attorney general is watching the clock.
Tenure, after all, is short for Michael B. Mukasey, a retired federal judge who has just six more months to restore confidence in a department battered by allegations of improper political meddling before time runs out on the Bush administration.
Mukasey is one of several elder statesman who accepted the president's request to rejoin government late in the second term, only to confront increasingly intense political battles and the detritus left by their predecessors. Yet, unlike Michael Hayden at the CIA and Robert M. Gates at the Defense Department, Mukasey has complicated his task with his steadfast refusal to reopen old wounds and purge the ranks of his roiled department.
Senate Judiciary Chairman Patrick J. Leahy (D-Vt.) recently appraised Mukasey as "content to serve as a caretaker for the regime of excessive executive power established by the Bush administration."
As Democratic lawmakers and White House officials tangle over how actively investigators should explore the past, the attorney general generally has sided with the administration and declined to open criminal probes on matters that predate him.
In the past month, Mukasey has rejected requests to name a special prosecutor to examine whether Cabinet officials committed war crimes when they approved harsh interrogation tactics for terrorism suspects. He refused to take a second look at a public corruption case that 52 state attorneys general say smacks of selective prosecution. He refrained from characterizing the department he joined last November as torn apart by partisan discord even though more than a dozen officials, including his forerunner, Alberto R. Gonzales, departed amid a politically charged firing scandal.
Instead, the cautious 66-year-old is leaving those judgments to appeals courts and internal watchdogs and is focusing on keeping the Justice Department out of the headlines and putting the national security apparatus in order on his way out the door. His performance will be on display again Wednesday, during what lawmakers say could be Mukasey's final congressional appearance.
Mukasey's posture has infuriated critics who want to ensure that the department is free from partisanship, and it frustrates even some of his sponsors, including Sen. Charles E. Schumer (D-N.Y.), who called his answers to oversight questions last week "very disappointing."
But Mukasey appears to be judging himself on a short list of his own criteria. They include passage earlier this month of an overhaul to a "vital" eavesdropping law, along with developing a soon-to-be-released plan for handling the legal claims raised by detainees at the U.S. military facility at Guantanamo Bay, Cuba, and guidelines for how the FBI conducts terrorism investigations.
The subject hits close to home for a man who led the federal courthouse in Manhattan in the hectic months after the Sept. 11, 2001, terrorist attacks and who presided over cases involving infamous defendants such as Omar Abdel Rahman, also known the blind sheik. Abdel Rahman led a militant group responsible for the 1993 World Trade Center bombing and other plots in New York and around the world. Threats over the judge's handling of that case prompted a decade of intense security by a special team of U.S. marshals that trailed him even while he walked his dog.
A compact man whose soft voice and owlish spectacles mask a piercing wit, Mukasey recently referred to al-Qaeda conspirator Zacarias Moussaoui, whose case crossed his desk when he was a U.S. district court judge, as "one of my alumni."
"He wants to make sure that America is in a position where it can protect itself against terrorism, that the FBI is making the changes it needs to make," said longtime friend and former New York mayor Rudolph W. Giuliani. "And I think he wants to make sure the Justice Department is operating in the independent way it ought to operate."
After the turbulent departure of Gonzales last summer, legal analysts urged President Bush to appoint a lawyer of bulletproof integrity and sterling qualifications to reshape Justice. It was, they said, a rare opportunity to clean house in a department besieged by controversy.
A former federal prosecutor and district court judge for nearly 18 years, Mukasey drew praise in legal circles for his razor-sharp intellect and clever turns of phrase. His former law clerks say his lack of political ambition awards him unusual freedom to act independently and to speak his mind.
But since joining Justice, he has resisted invitations to criticize the department or its previous leaders, who remain under scrutiny by the inspector general for their role in firing nine U.S. attorneys and for statements they made to Congress.
Close associates attribute that taciturn approach to Mukasey's deep, though not blind, loyalty. On at least one recent occasion, he privately voiced strong objections to a plan floated by some White House advisers that would have sent scores of Guantanamo detainees into the United States and its civilian court system. He said that move would clog the courts and possibly expose sensitive intelligence methods, according to sources familiar with policy council meetings earlier this month.
"One has to be alert to the possibility that you'll have a tactical success and a strategic defeat," Mukasey said of his general line of thinking in a recent interview.
Mukasey's aides say his actions at Justice speak for themselves.
Since coming on board, the attorney general has limited the number of people at the department who can receive calls from the White House. He restored workplace meeting privileges to a group of gay and lesbian employees and spoke at an awards ceremony honoring two of them in the department's grandly restored Great Hall. He reminded prosecutors that politics should play no role in public corruption or any other criminal cases. And he has forsaken the honorific title "general," asking staff members to call him "judge" instead.
But still, nearly every week brings troubling disclosures about the regime that preceded him.
Last month the department's inspector general concluded that political appointees had violated the law by considering the ideology of candidates for a prestigious program for rookie lawyers. A forthcoming investigative report on the rationale for firing U.S. attorneys could be even more damaging to the department and its reputation, according to lawyers following the probe.
But, as befits the son of a Russian immigrant, who says in passing, "I was always the good kid," Mukasey is keeping his head down and his mouth shut. The attorney general adheres to a grueling schedule, beginning each day with a 7:30 national security threat briefing, and hustles through the motions, though he lacks the back-slapping charm of a natural politician drawn to the ceremonial aspects of his office. He and his wife, Susan, a retired headmistress at an orthodox Jewish school, venture between their home in New York and a downtown Washington apartment. He sees his two young grandsons sparingly.
There are other costs, as well. The attorney general has aides to tell him when to begin talking, deputies to tell him when to stop, and functionaries who interrupt when the next engagement approaches. The lack of control clearly befuddles a man renowned for tightly regulating himself, and his courtroom.
"It's infantilizing," said Mukasey, who acknowledged missing the power to call a recess and direct his own schedule.
"There is nothing frivolous about him," said his son, New York criminal defense lawyer Marc L. Mukasey. "He doesn't do politics, and he doesn't do popularity contests. He doesn't do flavor-of-the-month. He does law."
Mary Jo White, who was U.S. Attorney in New York during the Clinton administration and who continued in her post after the 9/11 attacks, credits Mukasey with bringing "an absence of distraction" to a department hit hard by scandal.
"They're basically back to business and priorities," she said. "They're not in the news so much, which is a good thing."