Mukasey hearing set to proceed

A Senate committee signaled Wednesday that it plans to proceed with a confirmation hearing for Atty. Gen.-designate Michael B. Mukasey without documents from the White House that it once deemed crucial to investigating suspected abuses under the former attorney general, Alberto R. Gonzales.

Sen. Patrick J. Leahy (D-Vt.), chairman of the Judiciary Committee, said in a letter to Mukasey on Wednesday that he intended to hold the nominee to a higher standard in light of the Bush administration’s refusal to turn over subpoenaed materials about the politically charged firings of nine U.S. attorneys last year and other matters.

Aides said Leahy would continue to press that investigation -- along with an inquiry into dissent within the Justice Department over a warrantless wiretapping program launched after the Sept. 11 terrorist attacks -- even if Mukasey is confirmed.

But Leahy indicated to Mukasey that the lack of cooperation from the administration would not be used to hold up his nomination. The senator proposed that the men meet privately Oct. 16 to discuss the nomination and Mukasey’s views on a variety of subjects. Sources said a confirmation hearing could be scheduled as soon as the following day.

“Regrettably, the White House has chosen not to clear the decks of past concerns and not to produce the information and material it should have and could have about the ongoing scandals that have shaken the Department of Justice and led to the exodus of its former leadership,” Leahy wrote. “Those matters now encumber your nomination and, if confirmed, your tenure.”

Mukasey has garnered broad support from Democrats and Republicans, but his nomination last month by President Bush has become entangled in congressional investigations into allegations of department politicization that drove Gonzales from office.

Leahy’s conciliatory approach shows that even Democrats are disinclined to get into a fight with the White House over a nominee they consider to be fair and even-handed, even as the White House has refused to budge in the document tug of war.

The White House pressed the case for swifter action Wednesday.

“Members of the committee have been outspoken about the vacancies [at the Department of Justice], and they have an opportunity to do something about it by confirming him swiftly,” Press Secretary Dana Perino said, alluding to the departure of more than a dozen political appointees at the department.

On Tuesday the administration forwarded to the committee a completed 85-page questionnaire that included details about Mukasey’s finances and 40-year record as a prosecutor, private lawyer and federal judge in New York. The nominee has also spoken or met with all the members of the judiciary panel.

In his letter Wednesday, Leahy outlined a series of questions he would explore with Mukasey in their meeting in two weeks, essentially offering a preview of issues likely to arise at his confirmation hearing.

Gonzales stepped down Sept. 17 after congressional hearings turned up evidence that insiders were using political factors to hire career employees and launching voting-rights lawsuits that could benefit Republican candidates. His unwavering support of administration anti-terrorism policies also raised questions about his legal judgment.

Leahy asked Mukasey whether he agreed with some of the more provocative legal stands that Gonzales and the administration had taken since the 2001 attacks, including the power to override international treaties governing the treatment and questioning of suspected terrorists. He asked the nominee whether he believed Bush was legally correct when he ignored the federal wiretapping law and ordered the National Security Agency to conduct secret electronic surveillance of suspected terrorists communicating with people in the United States after Sept. 11.

Leahy also asked Mukasey whether he agreed with the broad view of executive privilege the administration has taken in refusing to turn over White House documents and testimony in connection with the Justice-related inquiries. And the senator asked whether he would allow the U.S. attorney in Washington to pursue contempt charges against administration officials for refusing to appear before Congress, charges that officials had previously said they would not pursue because they believed the officials were protected by executive privilege.

“I want to know whether you will work with us and provide those materials so that we can examine the legal justifications that have been utilized by this administration to excuse its conduct,” Leahy said.

Leahy also sought assurances from Mukasey that he would not allow the department to be used as a tool in the 2008 elections, and that he would restore guidelines that the senator said had prohibited the department from filing lawsuits or launching investigations that could influence voters just before they go to the polls. He also asked Mukasey whether he would recuse himself from any matter potentially involving Republican presidential hopeful Rudolph W. Giuliani; Mukasey and the former New York City mayor have been friends for more than 30 years.

Lamenting what he said was stonewalling by the White House, Leahy concluded: “They have left you to answer the unanswered questions and left long-standing disputes unresolved.”

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rick.schmitt@latimes.com