October 18, 2007

The Senate should confirm Attorney General nominee Michael Mukasey on one condition: that he appoint a special prosecutor to investigate the Bush administration.

Recent revelations that the Justice Department has authorized abusive interrogation techniques, including waterboarding, suggest that the Administration is violating U.S. laws against torture.

And there is evidence that the Bush administration may have violated the law by wiretapping U.S. citizens, which the Justice Department also approved.

Then there is the scandal over the firing of the U.S. attorneys.

The Justice Department cannot impartially investigate itself. That is one reason for a special prosecutor.

Another is that although the Bush administration has stonewalled congressional inquiry by hiding behind executive privilege, it could not use the same tactics on a special prosecutor.

Congressional Democrats have issued subpoenas, demanded testimony of key White House aides, negotiated in good faith with the White House to obtain release of relevant documents to inform the Mukasey hearings – all to no avail.  But the Supreme Court has already ruled in the Nixon tapes case that subpoenas from a special prosecutor trump presidential secrecy claims, so the White House would have to comply with his or her demands.

There is precedent for requiring that Mukasey appoint a special prosecutor on taking office. In fact, that is exactly what happened in 1973, in a Watergate precedent that closely parallels the Mukasey nomination. Attorney General Richard Kleindeinst had resigned under a cloud. President Nixon, faced with a hostile, Democratically controlled Senate, proposed a "consensus" candidate, Elliot Richardson, for attorney general. Like Mukasey, Richardson was a respected figure whose qualifications were not seriously questioned.  

Nonetheless, the Senate Judiciary Committee advised Richardson that he would not be confirmed unless he agreed to appoint a special prosecutor to investigate alleged Watergate crimes. That condition did not impugn the nominee's credentials in any way.  Richardson agreed and appointed Archibald Cox to the position, whose investigations and summary dismissal ultimately resulted in the House Judiciary Committee voting to impeach Nixon, forcing his resignation.    

As in the Richardson case, the Senate should have Mukasey agree to appoint a special prosecutor if he wants to be confirmed.  

The Supreme Court has already ruled in the Nixon tapes case that subpoenas from a special prosecutor trump presidential secrecy claims.  With a special prosecutor, the Bush administration could no longer hide behind executive privilege.

The Justice Department needs a new leader who can restore credibility and morale, sooner than later, and confirming a consensus nominee, if that is what Mukasey turns out to be, would be a welcome step.    

But it does not necessarily follow that because it has been sent a credible candidate, the Senate should now pull its punches and not exercise its power to demand a special prosecutor.

We need one to look into the role not only of Alberto Gonzales when he headed the Justice Department, but also Vice President Dick Cheney and even President Bush himself.

What did they know, when did they know it, and are they right in asserting their actions were legal?  

Without a special prosecutor, those questions will go unanswered.        

Appointing one may be the best way to restore the credibility of the Justice Department.  Failure to do so would only enshrine a doctrine of impunity for our highest officials.

Former Congresswoman Elizabeth Holtzman served on the House Judiciary Committee during President Nixon's impeachment. She co-authored the 1973 special prosecutor statute, and co-wrote (with Cynthia L. Cooper) the 2006 book "The Impeachment of George W. Bush."