Michael Mukasey evidently believes there is, and an attorney who used to practice before Mukasey (and admires him), warns that Mukasey is wrong. Jed Rubinfield writes in the New York Times today:
At his confirmation hearings last week, Michael B. Mukasey, President Bush’s nominee for attorney general, was asked whether the president is required to obey federal statutes. Judge Mukasey replied, “That would have to depend on whether what goes outside the statute nonetheless lies within the authority of the president to defend the country.”
I practiced before Judge Mukasey when I was an assistant United States attorney, and I saw his fairness, conscientiousness and legal acumen. But before voting to confirm him as the nation’s chief law enforcement officer, the Senate should demand that he retract this statement. It is a dangerous confusion and distortion of the single most fundamental principle of the Constitution — that everyone, including the president, is subject to the rule of law.
There is an exception. "In rare cases," Rubinfield writes, a president may "disregard a federal statute — but only when Congress has acted outside its authority by passing a statute that is unconstitutional."
According to Judge Mukasey’s statement, as well as other parts of his testimony, the president’s authority “to defend the nation” trumps his obligation to obey the law. Take the federal statute governing military commissions in Guantánamo Bay. No one, including the president’s lawyers, argues that this statute is unconstitutional. The only question is whether the president is required to obey it even if in his judgment the statute is not the best way “to defend the nation.”
If he is not, we no longer live under the government the founders established.
As for Michael Mukasey's confirmation as Attorney General, the question is clear.
If Judge Mukasey cannot say plainly that the president must obey a valid statute, he ought not to be the nation’s next attorney general.
Mukasey is not ignorant of the law, a law which has been confirmed over and over again by the Supreme Court -- most recently in Hamdan. There can be no reason for him, other than purely political, for him to persist in fudging the issue. Another political attorney general? No.
