The disturbing news that Attorney General Michael Mukasey is stonewalling a congressional investgation into the CIA's destruction of interrogation tapes prompts Scott Lemieux to mock Ben Wittes for having supported Mukasey's nomination:

Yes, the Dems will actually if anything have more leverage over Mukasey once he's confirmed! Because, er, he won't be able to "do anything" --like, oh, just for a random example, obstructing a Congressional inquiry into the obstruction of justice surounding state-sanctioned torture -- without them. And the Attorney General requires Congressional approval to fulfill most of the office's functions because...look, it's Halley's Comet!

I don't think this makes very much sense, though. To point out the obvious, it's not as though this whole situation would have transpired any differently had Mukasey not been confirmed. Acting Attorney General Peter Keisler would have dismissed Congress's request, rather than Mukasey, and the Justice Department, in addition to being obstructionist, would also be leaderless. The arguments against Mukasey--including Lemieux's--weren't about what would happen if Mukasey were confirmed, but rather said that for symbolic reasons it would be bad for Democrats to appear to endorse his views on torture and executive power (as Lemieux put it, it was "important for the Senate to send a signal that lawlessness in the executive branch and the endorsement of torture are not negotiable issues.") Whatever the merits of this argument, it's not as though Mukasey's latest actions change the calculation in any way. The case for confirming Mukasey--that he was at least as good as the alternatives--hinged not at all on the claim that he'd suddenly become an advocate for congressional power once in office.

It's also worth noting that Wittes's point about Mukasey needing to cooperate with Congress to be effective isn't nearly as silly as Lemieux snidely suggests. Obviously once they confirmed him, Senate Democrats weren't going to be able to dictate his decisions. What Wittes meant is that Democrats in Congress can either hound the attorney general and make his life as miserable as they made Gonzales's, or they can reward him with good relations and legislation the executive says it needs (like, for instance, the FISA reform bill that's going to be before Congress again soon). It's too bad Mukasey made the decision he did, but Democrats in Congress aren't powerless: I imagine they'll be a lot less likely to cooperate with the administration on that bill, among others, if Mukasey keeps thumbing his nose at them.

--Josh Patashnik