tv Republican Natl Lawyers Association Conference - Michael Mukasey CSPAN April 29, 2018 3:25am-4:00am EDT
study to the new york times and washington support -- washington post. it restricted the government's power and broadened first amendment reductions. our guest are two of the nation's top litigators, floyd abrams representing the new york times in the case against the nixon administration, and ted olson, a solicitor general under president george w. bush. atch landmark cases monday 9:00 eastern on c-span. join the conversation. tag is #landmark cases. we have a book, a link to the constitution's centers interactive constitution, and the len marquesas podcast at www.c-span.org/landmarkcases. >> the republican national lawyers association recently held its annual policy conference in washington dc.
among the speakers was former attorney general michael mukasey who served under the george w. bush administration. this is 30 minutes. >> i'm honored to introduce michael mukasey to discuss restoring the rule of law to the department of justice. judgment casey was appointed by president ronald reagan to serve on the new york bench in the southern district of new york. he served as a district court judge from 1988-2006 and from 2000-2006, he served as the chief justice of the southern district. justice of the southen district leaving that corporate a footnote he was succeeded as chief justice from the honorable campbell would who is currently handling some case that i have heard of. among his celebrated cases the
trial of omar armann terrorist he sentenced to life in prison or a plot to blow up the u.n. and other new york landmarks and the trial of josé padilla the u.s. citizen terrorist who tried to blow up an airplane. after a brief stent in private practice president george w. bush appointed judge mukasey attorney general of the united states. november of 2007 to 2009. his leadership at doj was widely praised for returning doj to prominence and independence so essential to the effective operation of our justice department and system. since graduating from yale law school in 1967 judge mukasey is almost the evenly divided his
time between private practice and government service. at each stop he has distinguished himself as a legal scholar, a brilliant tech titian, a writer, a great intellect and an inspiring leader as well as a man of unsurpassed integrity. in his career with president wash appointed him to attorney general our good friend chuck schumer stated by his reputation in korea he shows that he puts the rule of law first and i would add to that his actions he has demonstrated that ably. in every of 2009 general mukasey joined the firm where he continues to practice law. i'm blessed to have had the opportunity to work with this
exemplary lawyer as well as to call him a friend. i long ago gave up deciding what many of you wrestle with. do you call him general? do you call him judge? perhaps simply serve or your honor. surely if you have lived in england being knighted would have made it easy but he's a humble man and i'm grateful he lets me call him mike. with that i give you general mukasey. [applause] spin thanks very much larry for your kind introduction and elaborate introduction. thanks to all of you here for the honor of this podium and the
chance to be with you. this of course being the republican national lawyers association when somebody's invited here to speak you want to say something political preferably on the republican side or some combination of the two. i'd hope i don't have that respect is the point. going to talk for 20 or 25 minutes and if i don't cover a topic they expect me to cover i'm happy to answer your questions that i want to talk about something that's outside the usual framework for political or strictly legal discussion. what i want to talk about arises at least in part number problem that i have with the emphasis that keeps being placed more and more these days and with great pride on the claim that we are a nation of laws.
it's a contrast to a nation of men or a nation of people. i guess i should stay politically correct. that is state-of-the-art nation of law or call to arms the idea that we are governed by object of rules not by the will or the whim of a ruler which i guess is certainly a good thing but the will or the whim of the ruler is not the old me will or whim that bears down on us. in fact i think it's possible easily to put more emphasis on the nation than it is for anyone articulate for the citizens of this nation. i think most of us and where all lawyers go about our daily business and contribute to the general welfare we don't worry. that's a good thing particularly if you stop and consider the places where people at tactical doubts while keeping in mind
constantly what the law is and what it requires of them and in particular what it can do if those requirements are not met. they come to realize countries where people go about with the constant focus on the law are most typically countries like north korea or cuba or whether or not you have the law constantly in mind it has you constantly in mind. i think it's not really being a nation of laws that hold us together. i don't think it's a failure to be a nation of laws. in fact one that we ever been more legalistic than when discussing as we have over the last several weeks whether the attorney-client or of which should block the disclosure of the records of the employer of the record has representative him. it appears that all the extras
were stars. whether such a payment is a contribution to a political campaign if the payment is returned for the purpose for which the payment is in return for silence or whether the purpose of the payment has been disclosed to a bank as opposed to a home-equity loan. i have a home equity line of credit. i did not use it to pay off anybody for silence but when has our political discussion then - i think what holds us together is not that we are a nation of laws but a man named lord flesher and an essay he wrote in 1924 called obedience to be an enforceable. you have enforceable one of
three domains that exist around us and the others are the domain of personal whim which is the other kind of whim i hinted at before and that's the kind of whim that -- in his essay he put it this way in his words. he said real good greatness of a nation is true civilization measured by the extent of this land of obedience. it is that territory that measures the extent to which the nation trust its citizens and the area the land of obedience. it testifies to the way they behave in response to that trust with the expansion in proliferation of today's laws technical rules on the one hand and the increasing space occupied by the domain of whim the degree to which personal choice is a defining races for what we allow ourselves and others to do. the space occupied defines the
greatness of a nation. the states occupied by obedience is enforceable but getting smaller by the day. of course i'm not the first president to talk about this. obviously moulton talk about it in 1924 and many people have since. probably including commencement speeches which is the kind of thing that is rife with discussion at commencement addresses but it's of particular concern for when the laws a subject of interest and not a source of livelihood. one reason is personal taste and preference impinges not only help people behave toward one another both public and private but also how the degree to which they are willing to accept the idea of jack the truth. predict early the extent that it may conflict with what is important.
object if truth is something that people have to accept among other things if our legal system is to unction and it should. something i submit that we should also have to accept it in order to make important political decisions in the real world things happen one way and one way all my. conspiracy theories about all manner of public events including our own lifetime everything from the assassination of president kennedy to the collapse of the housing bubble in the credit markets in 2008. all that is the subject but again you barely harvey oswald acted alone or he didn't those are provable facts. and my formal line of work construct juries income the cases they must decide where the
government can provide evidence beyond a reasonable doubt in a certain set of facts exist. the fact including the state of mind and the facts nonetheless. give in and courthouses all over the country every day is the assumption that israel. as i said things happen one way and one way only. either he did or didn't pull the trigger and if he did did he have the intent to do what he did or didn't he? that instruction is given an court all over. a totally different setting our government and our intelligence agency has engaged in factual but questionable conduct in the gathering of intelligence. some people have claimed it violated national and international laws or were they engaged in unlawful surveillance
of u.s. citizens listening in on their telephone conversations reading their e-mails creating a lot from it are files monitoring who they call him who calls them how either those things that happened or they haven't. whether the charter was pulled with intent or wasn't and how government agents have acted unlawfully or they haven't. i've always thought until now there's an alternative approach that i think threatens to overwhelm even how legal cases are decided and how political cases are decided. that approach is secondary to narrative and we have seen is not only in broadcasting publications but also in the media and at times in the white house. i'm sure you all recall ferguson missouri were in the summer of 2014 a young black man committed a robbery with having the weapon tried to go after the weapon of the lease officer was shot and killed.
the narrative became that he was trying to surrender. hands up come in don't shoot it was shot in cold blood but the police officer was not prosecuted. that turbo charge the group that called itself black lives matter which organize demonstrations all over the country under the banner of that slogan. overlooking the most -- protecting black citizens against other black citizens. in congress senators that should know better claimed the nsa or the cia has conducted interrogations apparently because that's the narrative that some substantial number of constituents are willing to buy credits for the interrogation techniques one newspaper "the news york times" or the newspaper of record as it likes to call itself cno r. has
decided as a matter of editorial style it will revert the interrogation technique used by the cia as torture. notwithstanding that torture is defined in the federal statute as required elements of truth and there's good reason to doubt that any of those actually fits that definition. the times announces in a memo almost four years ago in august of 2014. that was signed by the editor. he simply announce that day that the editorial board decided at the urging of the reporters that with the terminology they would from then on use to refer to those techniques and so they have. that is the narrative. i think the discussion of the predominance of merit over
object if facts is in reference or politics. right after the election the party that lost the election adopted slogan. it was this. that slogan was meant to invoke the resistance of germany during world war ii in the occupied forces of western europe. that is what it was intended to invoke. this wasn't just this program or that program. was resist and somehow there's an nobility and resistance that goes beyond normal politics. we see it occasionally in the white house and we are told the nation at large is angry and likes to be led where the people that are angry so we have is green therapy. personal catharsis. that is just an example of the
domain of whim suppressing an ominous. several months ago i testified at a senate hearing that dell would propose legislation that change slightly vary slightly. i was one of a panel of witnesses several of them suggests it was racism rather than try and that accounted for the population in this country even in federal prisons who are disproportionately black. a portion of that is measured against the population. some of these witnesses used the phrase mass incarceration as it does suggest that people are being rounded up wholesale off the streets and confine to prison overlooking that whatever the makeup of the prison population the prisoners got there one at a time after trial for which it was established beyond a reasonable doubt or based on their own plea of guilty. another narrative that was
prevalent in some of the other witnesses was the suggestion that prisons are full of what they call nonviolent drug offenders and oxymoron to anyone familiar with how the drugs are -- in this country where the threat of violence or the actual violence is a link that holds it together. that hearing considered though that would have the effect the mandatory minimum sentences for a certain category of drugs but at least maintains the existence of some mandatory minimum sentence in each category and might actually have the effect of lowering the prison population by releasing prisoners at the end of their sentences at our expense. the relevant discussion about whether it is certainty or severity is the greater protection for deterrent for
crime or where the crime is generally a young man's game and what the risks are past their prime is criminal and to what extent society is justified to demand punishment and should keep them behind bars nonetheless. all of that was secured by the narrative going back and forth. the increasingly frequent ways to this tendency has been showing itself i think we are in danger of starting to become a middle eastern country in which public discourse is ruled by narratives rather than objective reality. i don't know whether any of you have seen the web site is media middle institute research. it's fascinating to the monitor translation of television broadcasts in newspaper articles in the middle east that originated in arabic or the other languages spoken in that part of the world.
some of it is reasonable but what may strike you overwhelmingly with the recent material but distribute is the degree to which the small change a daily discourse in the middle east whether on television newspapers magazines are places of worship is a narrative that has no connection to the truth whatsoever whether to claim that -- was responsible for 9/11 and warned those who worked in the world trade center not to show for worker christians were conducting another crusade or most recently the israeli government is planning to change the rules and within it decade control the mosques in jerusalem. this tendency has grown substantially in our own society it's not inevitable and not
deep-seated in the culture of the country as is the culture of others. here are results from a choice but reversing it is going to take both what i call lawyerly skills that his skills that involve reasoning from facts and conclusions rather than the other way around and will also involve commitment for that societal quality which is obedience to the unenforceable. those are the norms set to start we have allowed this country to prosper beyond anything known in the entire history of the world. i said just that is happen because the system governed by obedience is unenforceable people are free to rise or fall in any enterprise based entirely on object to facts on merit is recognized by common values. of course that assumes merit
rather than narrative could set the divining standard. it's not all clear that truth as opposed to nrda for when that set the public agenda this country so it's not clear we will continue to obey the enforceable in ways that make it possible to maintain a civilized society. there many people who have a lot to lose giving up opinions. people like the people in this room lawyers and others of personal interest have objective standards of what's true and what isn't and particularly republicans have the most tendency toward accepting a narrative and doing the most to prevent it from making further inroads. i'm now happy to take whatever questions you have about anything else you came to hear about. [applause]
>> general, thank you very much for being here and that was an incredible explanation of your views. in the domain of the whim as governor of new york entered an order ordering police officials in the state of new york enforcing incorporating with i.c.e. what recommendations or approaches would you say on behalf of the doj with respect to a response not only to the governor of new york but also in
other places in our country where officials seem to be operating without the rule of law? >> the problem with responding to something like that is you start to withhold cooperation between federal law enforcement agencies and state and local law enforcement agencies. the result that can only harm the people of new york. i guess an experiment in which we see what happens to the crime rate. the trouble is i would be one of the subjects of that experiment. i think public shaming is the way it can be done by a person who has the bully pulpit and able to articulate or have others articulate for him reasons why that is unacceptable
and just have it out in public along with some statistics on the people who are not being rounded up and the people who are essentially caught who should have been rounded up in words. you can keep track of that with numbers and the numbers will hurt the governor or should hurt the governor. i don't think this is a problem with the federal government trying to enlist or direct the states to the use of their resources including police resources. but that's not to say you can't keep track of what's going on and report on it and complain about it on a regular basis. if anybody has any other suggestions i'm happy to hear them. yes.
>> just going back to the topic a little bit more whimsical or whatever if i could ask your comments on the ongoing debate between congress to get documents from the fbi and the investigation. why is it taking so long? what power does the attorney general have to move this process forward and who gets to decide what documents get redacted and how they get them? >> in the first instance the redaction gets done by the people in charge of national security but that said the fact is congress has subpoena power. it also has impeachment power and a good exercise that power before now with other officials
including the now former or the irs and one of its employees i don't think we would be facing this problem and the justice department. but the fact is that they can hold people in contempt and there's a move to do that and then follow it up if necessary with the ultimate power. there's always a certain amount of friction between the legislature and the exec of branch. that's how was designed by the usually gets worked out in a commonsense way. there's no reason why it shouldn't be in this case and as far as it taking a long time i don't get that at all. there's a finite number of documents that are called for and a finite set of documents and finite reasons for
withholding them. we could list those including national security or executive privilege or simply turn them over. i recall being on the business end of a subpoena in my time and most of that work out. >> first i want to add my thanks for your comments which are very trenchant. from the very high up feel however part of what appears to be driving this import is based on the information of people we see almost all of which in the political world comes through filtered through the media and when i say the media i'm not just talking about the news organizations but also what
hollywood puts out etc. etc.. given first amendment rights how do you see this potentially getting resolved in a way that does not result and constitutional problems and at the same time works to reunify i will call it america? thank you. >> i think first amendment holds the solution. in your question it sounds like is the source of the problem but i don't take it is. we have available to us now many more choices in where we get our news and how we get our news then we have as recently as 10 years ago. we are going to have many more still. the salience of object to facts is something we have to respect we as republicans and we as lawyers and deep down narratives the only way that it's done is in the marketplace. it doesn't get done by the
government and it shouldn't. the government is just a bunch of people. some of them are intelligent and some of them are neither. >> i'm met general. yesterday former director comey was on "fox news". to sum up he said his giving the memo to his friend in the media was not a leak of documents from the justice department. he said it was his private diary memos that he is and now there is some information on that so to comment on that in two i gave it at article about the deputy attorney general who is demoted a couple of months ago because he's the one that gave the gps fusion memo to the fbi and
didn't disclose on the disclosure form that his wife was paid by gps fusion and i'm just wondering what kind of -- . >> i will tell you a little and got about private memos. my first week and in fact it was three days and as agi attended the reefing in a room that was lined with lead and so forth meant to stress the fact that it was a skiff and i was being briefed on a particular procedure. i was taking notes. when the meeting broke up and started to gather up my notes and my then chief of staff leaned over and wrote at the top of the first page in big lock letters top secret department a
life information. the message behind that was those aren't your notes, those are the government's notes. you can't take them with you. these are your personal notes. director comey said these are his personal musings, very personal musings. those aren't his. they are the governments. .. >> do you have any words of wisdom for president trump what to do about mueller? i've been reading andrew mccarthy's columns and i was
disturbed by rosenstein not complying with the oj regulations. the russia collusion was done by hillary and not president trump. and you've got a situation now where mueller seems to be going all over the place in a way that makes me uncomfortable. my professor at harvard law school has been floating stalin's secret police chief, show me the man and i will find you the crime or get -- crime. >> i like alan but that's a little bit -- >> he was terrific as a law professor. >> -- was terrific as secret head of police. [laughter] [applause] we're having fun with it. the point is, there is a lot of legitimate concerns about special prosecutors in general and specifically what mueller is doing. that's why i ask you. forueller is a great ad
white you shouldn't appoint a special counsel. there are some anything's wrong with it i don't know where to begin. but at this point, i think the president should take the advice that, as i understand, was posted at the top of every british man-of-war if you had to adjust the sale. there was a brass plate that had onto words, hold fast. that's my advice. [applause] >> thank you, general. [applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> the republican national lawyers association also heard from scott pruitt, the head of the environmental protection ag