By: Mark Fitzgerald
President George W. Bush’s nominee for attorney general could turn out to be more good than bad for the press, according to an analysis by the Reporters Committee for Freedom of the Press (RCF).
So far, most of the public discussion about Bush’s nominee, Michael Mukasey, has focused on his views of terrorism, particularly his decisions as a judge in the wake of the Sept. 11, 2001, terrorist attacks. But RCFP notes that Mukasey was briefly a UPI reporter, and took pro-press positions as a private lawyer for such media organizations as New York Daily News and The Wall Street Journal, and later as a federal judge in New York City.
“Judge Mukasey is the first attorney general nominee in many years to have a firm grounding in the law of the press,” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. “We’re optimistic that this will lead to a Justice Department that is more open to public scrutiny.”
In general, RCFP found, “Mukasey shows a strong tradition of defending the First Amendment rights of the media” in libel cases and in the single reporter’s privilege case he oversaw as judge. However, “he has been much more deferential to the federal government when it comes to access to the court process or to federal agency records, particularly where terrorism prosecutions are concerned.”
The report, “Evaluation of the Likely Impact of Attorney General Nominee Michael Mukasey on Press Freedoms and the Public’s Right to Know” notes that Mukasey’s nomination comes at a critical time for the press, with Freedom of Information Act (FOIA) reforms and a reporters’ shield law under consideration in Congress, and intense political and public focus on the Justice Department’s behavior in implementing secret terrorism-related measures and hiring and firing U.S. attorneys.
Mukasey spent a summer reporting for United Press International in Newark, N.J., while attending Columbia University in 1963. Alex Michelini, who was his editor at the time, said he wanted to hire Mukasey full time after graduation, and that the future jurist “seemed to love his work as a reporter.” But Mukasey ultimately declined the offer, and went on to attend Yale Law School.
From 1967 to 1972, Mukasey was in private practice with the Patterson Belknap Webb & Tyler, where his clients included the Journal and the Daily News. After a stint in the Manhattan prosecutor’s office, Mukasey in 1987 was appointed a judge to the U.S. District Court for the Southern District of New York, where he eventually became chief judge. Among his high-profile terrorist cases were the trials of blind Sheik Omar Abdel-Rahman and Jose Padilla.
His former UPI editor Michelini, who was then covering the federal courthouse for the Daily News, said the press corps “admired and liked” Mukasey.
“He knew we had a job to do, and he knew what that job entailed and he respected us and treated us in a way that enabled us to do our job effectively,” Michelini told the RCFP. “My belief is that the media will find an understanding and accommodating attorney general in Judge Mukasey. He knows what it takes to be a reporter. He will not tolerate nonsense or a subversion of the law, but I do not believe he will ever keep anything from the media that the media legitimately deserves to know.”
In his single reporter’s privilege case as a federal judge, Mukasey refused to compel a journalist the release of unedited outtakes of an interview of a defendant who was later involved in a civil lawsuit. “Despite determining that the videotape would be highly material and relevant to the suit and that the information contained thereon was not available through other sources, Mukasey held that the tape was not critical or necessary to the claim and refused to compel disclosure,” RCFP said. “Rather, the judge concluded that the plaintiff’s claim could suffice using only the edited videotape that aired on national television.”
On FOIA matters, Mukasey’s equally sparse record of cases indicates he may lean the government’s way against information requesters. RCFP said experts do not expect Mukasey to make significant changes in the Bush administration’s FOIA policies — including the controversial October 2001 directive from former Attorney General John Ashcroft that government FOIA officers should reject information requests whenever there is a “sound legal basis” for doing so.
That standard significantly increased the bureaucratic hurdle to get government information from the policy adopted by President Bill Clinton’s administration to release information unless an agency recognizes “foreseeable harm” from disclosure.
It’s somewhat unclear where Mukasey will come down in terms of secret courts, RCFP said.
“Though Mukasey fought for access to court hearings on behalf of the press as an attorney, as a judge, he found occasions to limit the public’s access to court matters,” RCFP said. “These instances were related to cases involving terrorism issues or other matters of national security, or cases that were generally high profile in nature.”