Mukasey's Brief

Talk about rising to the occasion—and then quickly sitting down. Attorney General Michael Mukasey, making his first-ever argument before the Supreme Court this morning, stood before the justices, answered their questions, and then—when things started slowing down--asked if they had any more.

He looked left, over to Justice Breyer, and then right, to Justice Alito on the other end of the bench.


So he sat down—with 14 minutes left in his allotted 30 minutes of argument time.

I’ve got several points to make here, but first, consider this: When does anyone in Washington ever walk away from a free microphone?

Even at the Court, when you sometimes see lawyers under siege extraordinarily eager to high-tail it back to their seats, they typically stand there until the clock ticks down and the red light mercifully comes on, indicating their time is up. (I do remember Chief Justice Rehnquist occasionally admonishing lawyers to “stop looking at the clock.”)

Not Mukasey. No one could accuse him of playing to the crowd—or to the Court. He spoke in clipped sentences, almost haltingly. He in no way came across as a polished and seasoned Supreme Court advocate. He stumbled over his words a couple times and seemed to be sweating.

But bottom line: He ran circles around some of his predecessors in the AG’s office who took the opportunity to argue a case and ably defended a law he believes is critical to prosecuting suspected terrorists. That said, he should keep his day job---otherwise, people could get used to those shortened arguments, and next thing you know, we've got lawyers using power points.

In his quarter hour, Mukasey was adamant that a federal law banning possession of explosives during the commission of a felony should apply to man suspected of plotting to blow up LAX. Ahmed Ressam was charged with lying about his identity and citizenship, which is a felony. And since Ressam was committing a felony—and happened to have explosives in his car--prosecutors slapped him with the additional charge of carrying “an explosive during the commission of any felony.” That charge brought him an additional 10-year sentence.

Ressam challenged his conviction, saying the explosives had nothing to do with the felony of lying about his identity and citizenship.

Mukasey basically said "too bad." Congress passed the tough law, which makes it a crime to carry explosives while committing “any felony.” And that means “any felony,” Mukasey said.

Justice Scalia asked whether the law would apply to some guy carrying a can of gasoline to mail a fraudulent tax return. “Explosives,” after all, covers a lot of things—gas cans, cleaning supplies, gun cartridges. Defense lawyers have pointed out that a cleaning woman carrying supplies who lies about her citizenship at the border could be prosecuted for “carrying explosives” “during” a felony.

“We concede that it was a very broad statute. ‘Any felony’ couldn’t be any broader,” Mukasey said. “But that was Congress’s choice. And if Congress chooses to amend the statute, respectfully, it ought to be Congress that amends it.”

The justices kept pushing. But Mukasey wouldn’t budge. The law’s the law.

Well, Chief Justice Roberts asked, was there any policy in the Justice Department that limited the use of the law—when prosecutors would actually use it against people?

No, Mukasey said. He said guidelines weren’t necessary because prosecutors weren’t using the law like that.

JUSTICE KENNEDY: I suppose if you thought there was a problem, you could promulgate (the guidelines) out of your department.

MUKASEY: I think I’d be ideally suited to do that.

Everyone laughed at that.

But Mukasey said the law’s harsh penalties were serious—and necessary in cases where suspected terrorists couldn’t be easily convicted of other crimes.

His demeanor was what you’d expect from someone of his background---an experienced federal trial court judge who’d heard an argument or two in his day. He was going to make his argument, answer whatever questions the justices happened to have, then shut up and let the Court get on with things.

For a completely opposite approach, check out then-AG Dick Thornburgh’s argument in Skinner v. Railway Labor Executives’ Assn., a 1989 case that involved drug testing for railroad employees. He had a hard time with the record in the case, told the court—under questioning from Justice Marshall—that he wasn’t “going to palm himself off as an expert,” then proceeded to wax on and on and on for long stretches, after the justices had leaned back in their chairs, having lost all interest in what he had to say.

Or Janet Reno. She had the unenviable position of following a disastrous argument by the state attorney general from Maryland in what was supposed to be a relatively straightforward 4th Amendment case, Maryland v. Wilson. State AG Joseph Curran argued that police not only should be able to order passengers out of cars when they pull over the driver—which was the question in the case--but then to also detain them on side of the road indefinitely. That prompted Justice O’Connor to almost bolt out of her seat.

“Suppose it’s a driving snowstorm, or a blinding rainstorm, the passenger is a mother with a very young baby, and the officer automatically can order her out of the car, to put the baby down outside where he can see the baby and raise her hands up,” O’Connor countered to Curran. “Real damage can occur.”

By the time Reno got up for her 10 minutes, the justices were highly annoyed with Curran—and her simple case had gotten pretty complicated.

No attorney general had argued since Reno. John Ashcroft argued before the Court before he became AG, and Alberto Gonzales never got around to it. When someone at DOJ mentioned it as a possibility, Mukasey said he’d like to give it a shot.

“I was told…‘Hey, by the way, it's sort of customary, not always, but customary for the attorney general to argue a case.’” Mukasey told reporters last week. “And then…I sort of threw my cap over the wall and said, ‘Hey, I think I'd like to do that.’"

He said he had two moot courts to prepare, but “unlike (prominent Supreme Court lawyer and former Solicitor General) Walter Dellinger, I haven't had the guts to invite people to watch.”

Also unlike Dellinger, the AG showed himself to be an advocate of few words.

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