1115.org

My personal judgement is that Michael Mukasey heard the phrase “The law is an ass” at a very impressionable age, and took it deeply to heart. So when he became Attorney General, he felt obliged to uphold that dictum in everything that he did (or didn’t do).

Yesterday, he delivered an appropriately asinine speech to the American Bar Association.

More than two weeks ago, the Justice Department’s Inspector General Glenn A. Fine had issued a scathing report on the hiring practices of former officials such as Buttercheeks‘ senior aide Monica Goodling, Buttercheeks’ former chief of staff D. Kyle Sampson and Michael Elston, the former chief of staff to the Deputy Attorney General.

An extensive report by the department’s Office of the Inspector General and Office of Professional Responsibility concluded yesterday that Goodling and others had broken civil service laws, run afoul of department policy and engaged in “misconduct,” a finding that could expose them to further scrutiny and sanctions. The report depicted Goodling as a central figure in politicizing employment decisions at Justice during the Bush administration.
[…]
… the report and accounts from lawyers who worked alongside Goodling, 34, at Justice provide a far more extensive examination of her dominance during her time as the department’s White House liaison and counselor to the attorney general. One source said staff members called her “she who must be obeyed.”

Mukasey’s initial reaction to the report had been:

In a statement, Mukasey said that he was “disturbed” by the findings and that he is reviewing the report to determine whether further action should be taken.

The speech to the ABA was Mukasey’s considered judgement on the matter. He apparently decided to demonstrate that the law can be an ass not just by commission, but also by omission.

The short version of Mukasey’s remarks was: So what if they broke civil service laws to make illegal hires? No action is warranted against them, since they have already been punished in the court of public opinion by “substantial negative publicity”. This rationale for prosecutorial inaction, however, seems to apply only to former henchmen of former Bush henchmen. At least, Mukasey has shown no inclination to invoke it, for example, to address the acute problem of overcrowding in our prisons.

I want to stress that last point because there is no denying it: the system failed. The active wrong-doing detailed in the two joint reports was not systemic in that only a few people were directly implicated in it. But the failure was systemic in that the system - the institution - failed to check the behavior of those who did wrong. There was a failure of supervision by senior officials in the Department. And there was a failure on the part of some employees to cry foul when they were aware, or should have been aware, of problems.
[…]
I am well aware that some people have called on me and on the Department to take even more drastic steps than those I have described (namely, steps to ensure that This Does Not Happen Again). For example, some commentators have suggested that we should criminally prosecute the people found in the reports to have committed misconduct. Where there is evidence of criminal wrongdoing, we vigorously investigate it. And where there is enough evidence to charge someone with a crime, we vigorously prosecute. But not every wrong, or even every violation of the law, is a crime. In this instance, the two joint reports found only violations of the civil service laws.

That does not mean, as some people have suggested, that those officials who were found by the joint reports to have committed misconduct have suffered no consequences. Far from it. The officials most directly implicated in the misconduct left the Department to the accompaniment of substantial negative publicity. Their misconduct has now been laid bare by the Justice Department for all to see. As a general matter in such cases, where disciplinary referrals are appropriate, they are made. To put it in concrete terms, I doubt that anyone in this room would want to trade places with any of those people.

So that’s it. Goodling, Sampson and Elston have been sentenced to disinfection by sunlight. There is no greater punishment for good men and women. They have borne their sentences with dignity and grace. And we should now compassionately avert our eyes, and conserve our moral outrage for those violations of the law that are actually, you know, crimes. That, at least, is the “law is an ass” edition of compassionate conservatism.

I don’t know if you also share my admiration of Mukasey’s firm stand on refusing to dismiss those who were illegally hired in violation of civil service laws:

Other critics have suggested that we should summarily fire or reassign all those people who were hired through the flawed processes described in the joint reports. But there is a principle of equity that we all learned in the schoolyard, and that remains as true today as when we first heard it: two wrongs do not make a right. As the Inspector General himself recently told the Senate Judiciary Committee, the people hired in an improper way did not, themselves, do anything wrong. It therefore would be unfair - and quite possibly illegal given their civil service protections - to fire them or to reassign them without individual cause.

Ordinary idiots like you and me can probably be forgiven for thinking that:
a) if someone is hired in violation of civil service laws, that can’t be a legal civil service hire
b) since they were hired illegally, that’s a wrong that cries out to be righted.

But we’re only ordinary idiots. It takes a prize ass like Mukasey to see that it’s wrong to right some wrongs.