THE CASE AGAINST MUKASEY.

Before the hearings ... I was fully prepared to endorse Mukasey as the least bad option. This was contingent, however, on his backing away from the policies of the administration on two crucial questions: arbitrary executive power and torture. However, Mukasey's testimony at the second day of hearings was unacceptable. On the issue of executive power, for example, he did not fully repudiate the lawlessness of the Bush administration but rather asserted that the executive can violate congressional statutes under circumstances where the executive claims broad authority to "defend the nation," which (given the vague contours of national security claims) allows the executive potentially substantial discretion to ignore valid congressional statutes. As Marty Lederman pointed out, Mukasey strangely cited the Prize cases in defense of administration lawlessness, although in that case -- which involved the blockade of Southern ports in the initial stages of the Civil War -- Lincoln initially acted in the face of congressional silence (rather than in defiance of a statue, as the president did with FISA) and later had his actions retroactively authorized by Congress.