Restoring justice

September 18, 2007

The nomination of former federal Judge Michael B. Mukasey to replace Alberto R. Gonzales as attorney general has all the signs of a rare conciliatory gesture by President Bush toward congressional Democrats.

Both sides should build on this cooperative spirit to finally work out an arrangement by which the administration would provide the documents and testimony necessary to complete a congressional investigation of political abuse of prosecutorial powers during the ill-fated Gonzales regime.

Mr. Mukasey, regarded as a respected adherent of the rule of law with little political background, would certainly enhance his prospects for confirmation by agreeing to enforce such an arrangement.

Republican Sen. Arlen Specter argues persuasively that the first priority should be rebuilding and restoring the demoralized Justice Department, which became dysfunctional during the three years of Mr. Gonzales' lapdog leadership as President Bush's political needs repeatedly trumped the professional operation of the nation's top law enforcement agency. But such restoration seems impossible without determining whether political interference with U.S. attorneys amounted to criminal behavior that must be dealt with.

Lengthy court proceedings would likely be required to legally settle the dispute between the White House and congressional investigators over what, if any, documents and testimony are protected by executive privilege. Yet the stalemate can be broken - as similar disputes have been repeatedly in the past - by an agreement that applies in this instance without setting a formal precedent.

Sen. Charles E. Schumer, a New York Democrat who helped drive Mr. Gonzales from office but is now an unofficial advocate for fellow New Yorker Mukasey, sounded optimistic yesterday that such a bargain might be struck quickly. That would certainly be best for the department and for its critical role in the broad spectrum of law enforcement, from drug trafficking and terrorism to civil rights and environmental protection.

Mr. Mukasey's nomination deserves a careful review nonetheless. He would serve only for the 15 months remaining in Mr. Bush's term, but there are important policy debates to be decided during that period, including the government's power to snoop on American citizens without a court warrant.

Dubbed a law-and-order conservative, Mr. Mukasey has written more sympathetically about the justification for broad new investigative powers granted the government under the Patriot Act than about the concerns of those protesting a violation privacy rights. As a jurist, though, he has demonstrated integrity and independence.

This nomination could be a chance to put an end to a sorry saga and restore Americans' faith in their legal system. Mr. Bush and the lawmakers should take care not to waste the opportunity.

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