The Attorney General recently asserted that no pardons are necessary for any of the actors in the administration’s torture regime. Whether or not that is true as a political strategy his reasoning for it hints at a disturbing attitude towards the system he is supposed to represent.
For more on pruning back executive power see Pruning Shears.
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An aspect of the coming Obama administration that I am greatly looking forward to is never again having to type the words “Attorney General Michael Mukasey”. He deserves to be remembered as a much worse AG than Alberto Gonzales because there was never any real sense that Gonzales was independent. Mukasey’s distinguished and separate career prior to becoming AG gave him a measure of credibility, and people generally gave him the benefit of the doubt. When he turned out to be just as willing to do the White House’s bidding it therefore was much more damaging. Unlike his predecessor he could not be dismissed as just another crony brought in with the Texas gang.
Maybe the president’s bubble is large enough to allow for additional occupants, because Mukasey seems to have a fairly loose grip on reality. In addition to the illusion that all is basically going well he also seems to have convinced himself of his own invulnerability. That is the most plausible explanation for this:
Mr. Mukasey told reporters that there was “absolutely no evidence” that anyone involved in developing the policies “did so for any reason other than to protect the security in the country and in the belief that he or she was doing something lawful”…[Mukasey] said the lawyers who authorized the surveillance and interrogation programs had done so in the belief that they were following the law. “In those circumstances,” he said, “there is no occasion to consider prosecution, and there is no occasion to consider pardon.”
That combination of hubris and naïveté might be the cause of a lot of headaches down the road. The president is focusing on his legacy these days and may be unwilling to implicitly acknowledge the systematic wrongdoing that a pardon spree would require. He may feel he has his hands full figuring out how to finesse the Al-Marri case since he is racking up Washington Generals level numbers in going up against the Supreme Court. Disposing of existing problems may crowd out preempting new ones considering there is barely more than a month left (vacations not included).
Still, his reasoning doesn’t seem to hold a whole lot of water. I have a hard time believing that lawyers have carte blanche provided they believe “that they were following the law.” Lawyers do not ultimately adjudicate legality; we have a legal system – with case law, courthouses, judges, juries and everything – to determine whether or not something is legal. Asserting that a lawyer’s belief is sufficient to establish legality negates all of that, or more properly substitutes the lawyer’s judgment for it.
I suspect there are plenty of sharp legal minds out there ready to take apart that particular vision of justice. What is more troubling to me is the complementary role of the client. Mukasey endorses a system where the advocate provides opinions that may then be taken to entirely comprise the client’s understanding of the law. Those who retain counsel are merely empty vessels into which lawyers pour advice, and once filled up are absolved in any course of action. In this model there are two types of people: lawyers and idiots (insert joke here). There is no expectation that these glorified robots might have any kind of independent evaluation of the advice, or any kind of ethics, morality or conscience regarding what they are told. There is no allowance for having qualms about it, nor for the possibility that the client might be getting led astray (i.e. that the lawyer might not be perfect). There is no place for a layman’s understanding of what might or might not be legal, no expectation that a reasonable person would balk at outrageously bad and wrongheaded advice. There is just a simple and perfectly closed circle: The lawyer believes it is legal, so it is. The client is told as much, and is blameless.
Such a theory might fly; who knows. The Supreme Court has delivered a series of rebukes to the White House over its tactics, but the theories that animated them are not exactly getting swatted away. But it still seems like Mukasey is wagering an awful lot on their durability. Maybe he truly thinks he is untouchable, or maybe he thinks Congress will not be willing to respond to a crisis even when provoked (though to be fair he has plenty of evidence to support the latter). Still, the fact that he feels comfortable with this theory of preemptively exonerated lawyers directing empty headed, obedient dolts tells you just how much contempt he has for his chosen profession.
