Saturday, March 7, 2009

Rudy Talks Justice, Politics, and Waterboarding

Former NYC mayor and 2008 GOP presidential candidate Rudy Giuliani spoke at the University of Connecticut School of Law on Thursday, March 5, as part of panel discussion about the U.S. Justice Department, Inside the DOJ.

We attended the event which was held at the law school's Hartford campus.

Joining Giuliani, who by the way speaks without a teleprompter, on the platform were former Connecticut U.S. Attorney (and former chief of staff to then-Attorney General Alberto Gonzales) Kevin O'Connor, and former assistant U.S. attorney Marc Mukasey--the son of the former Bush AG Michael Mukasey.

O'Connor recently joined the Connecticut office of Giuliani's international law firm, Bracewell & Giuliani, so to some degree the event might have been a marketing ploy. Mukasey works for the firm's NYC office.

In his introduction, Law Dean Jeremy Paul mentioned that "we run a non-partisan law school" (which, given the ideological makeup of the faculty, is an interesting statement), but that his participation at the event nonetheless posed difficulties for him. But it turned out he was making a joke about the "partisan" rivalry between Red Sox and Yankees fans--Giuliani being well known as Yankees booster. Giuliani got some laughs when he said he thought the panel was assembled to discuss steroids.

At the outset, the moderator asked Giuliani and O'Connor about any future political aspirations. Both men have been touted as prospective candidates for governor or U.S. Senator in their respective states. O'Connor gave a Sherman-like statement disavowing any run for office owing to family reasons, but Giuliani was noncommittal and left the door open, adding that he hasn't thought about it--which leads us to believe that he is a likely gubernatorial candidate in 2010!

In his opening remarks, Giuliani mentioned that he worked for the Justice Department in various capacities for some 18 years, both as U.S. Attorney in NYC and in the Washington DC Justice Department headquarters, and that he got in right after Watergate.

He explained that the Justice department is the "home office" of the government's legal department. It's a massive agency that handles both civil and criminal prosecutions. Giuliani maintained the Attorney General has the most complex job in the president's cabinet--the AG is involved in just about every single issue confronting the Executive Branch, that is, whether the Executive Branch can act, and how it should act. The Justice Department is the law firm of the U.S. Government (but not necessarily the president), Giuliani said, with criminal prosecutions only comprising about 20% of the workload.

As U.S. Attorney, O'Connor said the most important thing you do is hire good people. As political appointees, U.S. attorneys come and go, but assistant U.S. attorneys often stay in the DOJ for life.

Mukasey said that his proudest professional moment was representing the United States in court. It is an exhilarating feeling to announce in court that you are representing our country. He later said that the lawyers on both sides of cases he's handled, both on the criminal and civil side, get along very well on a personal level, despite the high-stakes litigation. The political views of the attorneys, if any, never come up, he said. U.S. attorneys "strike hard blows, but not foul blows," he said. The job of an assistant U.S. attorney is to "do justice," and then let the chips fall where they may. "Don't do a touchdown dance," he advised.

Speaking of the U.S. attorneys who serve at the pleasure of the president and can be removed at any time, former AG Gonzalez got into trouble in what appears to us as a media-hyped "scandal" over the firing of nine of the 94 U.S. attorneys during the Bush administration. Some scrutiny also occurred over so-called political hiring practices in the Justice Department (as if other administrations--particularly the current on--have not politicized the DOJ and other agencies). O'Connor served as the point man in the Congressional investigations. Perhaps playing to the audience, O'Connor called it a "huge scandal," but that only seven or eight DOJ functionaries tried to politicize the department.

Giuliani noted that the president has the right to change the policy decisions of the DOJ; the problem arises in any interference with individual cases. Both O'Connor and Giuliani noted that the president and the AG define policy, and policy in turn defines how the agency uses its resources. Those policy differences can be grounds for legitimate removal. Giuliani opined that DOJ had a history of nonpartisanship but things changed with the Supreme Court nomination of Judge Robert Bork. Judge Bork was "sabotaged" and "humiliated," Giuliani said, and it has been tit for tat between the Democrats and Republicans since then--particularly over the confirmation of judicial appointees. It occurred to us that the politicization of the war on terror might also date back to the contentious Bork hearings.

The panel also fielded a question about the rocky 2007 confirmation hearings for AG Mukasey, particularly when questioned about the administration's waterboarding policy. Mukasey refused to state unequivocally that waterboarding was illegal, which put his confirmation in some jeopardy (although he was later confirmed narrowly). Marc Mukasey defended his father's Senate testimony, saying it would be inappropriate for the nominee to second guess internal Justice Department legal memos that he hadn't read (memos that the administration had rescinded anyway). Mukasey said his dad paid a political price for taking that position.

Giuliani suggested that it is unclear whether waterboarding is illegal or how to define (at least in legal terms) the technique. Exigent circumstances determine whether it is illegal or whether it should carried out on a detainee. Giuliani also pointed out that Congress had three opportunities to make waterboarding explicitly illegal and failed to do so. The former mayor also mentioned that certain U.S. military personnel (e.g., special forces) undergo waterboarding as part of their training. Giuliani agree that the AG Mukasey did not get credit in the media or in Congress for his principled position.

[For the movie buffs out there, waterboarding is portrayed in the World War II yarn Black Book, but whether the Nazis actually used that technique or it was depicted in the film as a political "statement" by director Paul Verhoeven, is unclear.]

The panel also responded to a question about the effectiveness or lack thereof of the Securities and Exchange Commission given the corruption on Wall Street. Both O'Connor and Mukasey served in the SEC as staff attorneys. O'Connor conceded that the SEC has some explaining to do, but the agency's culpability is overblown. Anger at the good public servants in the agency is misdirected, he said. They--i.e., the SEC lawyers and accountants--weren't taking any money from anyone (although it occurred to us that the SEC's ineffectiveness did result in money being taken from innocent investors). He indicated that unraveling sophisticated transactions is a very difficult task, and that SEC attorneys are typically overmatched by their adversaries. Many of them are fresh out of law school, he said.

At present, the SEC can only levy fines, and the panel agreed that the SEC needs to be more proactive, but the agency also needs to be vested with the power to throw people in jail, and that the process for obtaining SEC subpoenas needs to be streamlined. Instead of getting rid of the SEC, the panel suggested that the SEC needs to be made more effective, with added staff resources along with the ability to impose more penalties and remedies. The panel agreed that the blame game is not getting us anywhere.

In terms of ethics generally in the practice of law (an oxymoron?), Giuliani said that you have to do the best you can based on your experience, especially with questions of enormous complexity. When faced with an ethical dilemma or moral crossroads, Giuliani cited his mentor, Judge Lloyd F. MacMahon, who said that if you have to think about and talk about it too much, don't do it. Giuliani added that the legal practitioner needs to analyze a situation, and get advice, but in a difficult or ambiguous situation, it's best to err on the side of not doing it.

Click here for an additional report on this event.

Bonus coverage: Overheard this factoid from someone sitting behind us in the audience before the event started. Star Trek, according this person, was an allegory for the Cold War. The Klingons were the Soviet Union, and the Romulans represented China. Discuss.