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High Contrarianism Progress Report

[ 13 ] January 31, 2008 |

You may recall Ben Wittes arguing that once Mukasey was dutifully confirmed he wouldn’t be able to stonewall because the Democrats would suddenly have more leverage him because Mukasey would…need them to accomplish some unspecified things. I was criticized for thinking that this was less than plausible. How’s it working out?

Over the course of a long, maddening day, it’s quickly manifest that Mukasey’s legal opinions have a 30-second shelf life. He won’t opine on what’s happened in the past and he won’t opine on anything that might happen in the future. When Sen. Arlen Specter—concerned about seven years of vast new claims of executive authority—asks Mukasey whether, in his view, the president “can break any law he pleases because he’s the president—including, say, statutes banning torture,” as well as FISA and the National Security Act, Mukasey replies, “I can’t contemplate any situation in which this president would assert Article II authority to do something that the law forbids.”

“Well, he did just that when he violated the Foreign Intelligence Surveillance Act,” Specter shoots back. Mukasey’s response? “Both of those issues have been brought within statutes.”

Specter is flabbergasted: “But he acted in violation of statutes, didn’t he?”

“I don’t know,” Mukasey replies. But does is really matter? What’s past is past.

Amazing — apparently Mukasey didn’t get the memo.

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