The Mukasey test

Critics of Atty. Gen. Michael B. Mukasey are complaining that he has minimized the gravity of the politicization of hiring in the Justice Department and wrongly refused to order a criminal investigation of the scandal. The first accusation is on target, but not the second.

In a speech to the American Bar Assn. this week, Mukasey did seem oblivious to the damage inflicted on the department by conservative political operatives who imposed a litmus test on applicants for nonpolitical positions. Without using the exact phrase, he implied that Monica M. Goodling and other Bush loyalists had suffered enough for having (in Goodling’s words) “crossed a line.” He added: “I doubt that anyone in this room would want to trade places with any of those people.”

Maybe not, but Mukasey’s tone was oddly Olympian, displaying little of the righteous anger one would have expected from a retired judge called in to clean up the mess made by his spinally challenged predecessor, Alberto R. Gonzales. In a similarly detached tone, Mukasey defended his decision not to undertake a criminal investigation of the former officials -- including Goodling, who has been accused by the Justice Department’s inspector general of violating federal law and Justice Department policy. Mukasey reminded the bar association that “not every wrong, or even every violation of the law, is a crime.”

Tone aside, however, Mukasey is right. As he pointed out, two reports by respected watchdog agencies -- the inspector general’s office and the department’s Office of Professional Responsibility -- concluded that Goodling and other officials violated civil service, not criminal, laws. Rep. John Conyers Jr. (D-Mich.), the chairman of the House Judiciary Committee, countered that Mukasey short-circuited an investigation that might have led to criminal charges -- if only against individuals who were “less than candid with investigators.” That sounds like a fishing expedition.

Conyers and other Democrats would be wiser to focus on a more momentous issue than the politicized hiring of interns and immigration judges: the possibility that U.S. attorneys were forced out to prevent them from -- or punish them for -- doing their job. Those dismissals are being investigated by the inspector general, who could recommend that Mukasey appoint a special prosecutor to investigate Gonzales or other higher-ups. How Mukasey would respond to that recommendation would be the real test of his independence.