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Retired federal judge Michael Mukasey watches President Bush announce his attorney general nomination Monday at the White House Rose Garden.
updated 10/3/2007 12:04:59 PM ET 2007-10-03T16:04:59

Senate Judiciary Committee Chairman Patrick Leahy has told Attorney General-designate Michael Mukasey his confirmation could hinge on demonstrating he'll keep White House influence out of Justice Department decisions.

A key test, Leahy said in a letter to President Bush's nominee, would be Mukasey's willingness to answer questions the White House won't about a litany of issues, ranging from warrantless eavesdropping to what Mukasey would do to prevent federal prosecutors from being used to influence elections.

White House Counsel Fred Fielding has declared those details off-limits under executive privilege.

"Regrettably, the White House has chosen not to clear the decks of past concerns and not to produce the information and material it should have and could have about the ongoing scandals that have shaken the Department of Justice and led to the exodus of its former leadership," Leahy, D-Vt., wrote to Mukasey in a letter first obtained by the Associated Press. "Those matters now encumber your nomination and, if confirmed, your tenure."

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Moving toward hearings
Leahy still has not scheduled confirmation hearings even though Mukasey's nomination is expected to draw few objections. He has indicated hearings will not be held until Fielding accommodates his concerns about the president's controversial eavesdropping program and interrogation methods with captured terrorist suspects. But his letter to Mukasey conveyed a lost hope for getting those answers from Fielding, and implied a willingness to move ahead with hearings. Democratic officials widely expect Leahy to schedule the proceedings later this month after an additional private session with Mukasey.

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"I look forward to meeting with you," Leahy said in a handwritten note below his signature.

Leahy sent the letter Tuesday, just before Mukasey returned a more routine questionnaire about his legal and professional background.

"I think now that they have all the information and now that he's met with all of the members of the Senate, I think there's no reason to delay scheduling a hearing," said White House spokeswoman Dana Perino.

Confirmation questioning
Among the questions Leahy told Mukasey to expect at the hearings:

• What steps Mukasey will take to ensure that federal prosecutors will not be fired at the behest of the White House or for any political reasons, as lawmakers widely charged earlier this year in the wake of the U.S. attorney dismissals by the Justice Department run by Alberto Gonzales. Democrats said it appeared that some prosecutors were fired for failing to pursue corruption cases that might have helped Republicans in last year's elections. Gonzales and the White House have denied that.

"I will ask for your assurance that the Department of Justice and in particular, our U.S. attorneys, will not be employed in upcoming elections to seek to effect the outcome," Leahy wrote.

Leahy and Sen. Charles Schumer, D-N.Y., have said that Mukasey told them in private meetings that he would fire any to fire any Justice Department employee who discusses sensitive cases with the White House without his approval.

• Whether Mukasey will institute guidelines that instruct Justice to refrain from election fraud prosecutions that could affect the outcome of imminent balloting.

• Whether Mukasey would recuse himself from matters involving Republican presidential candidate Rudy Giuliani, as the White House said over the weekend. Mukasey and Giuliani are longtime friends and former colleagues and Mukasey is stepping down as an adviser to Giuliani's presidential campaign.

• Whether Mukasey would allow a contempt citation against one current and one former senior White House adviser to be referred to a federal prosecutor if the citation is passed by the House. The citations against White House chief of staff Joshua Bolten and former presidential legal counselor Harriet Miers have been approved by the Judiciary Committee and await floor action. But under Gonzales, administration officials said the Justice Department would not allow a U.S. attorney to bring the contempt citation before a grand jury.

• What would Mukasey do if he learned that a White House official or a member of Congress had called a federal prosecutor seeking information about an ongoing criminal investigation? Leahy and Schumer have said that in private meetings, Mukasey had assured them that he would fire any Justice Department employee who receives such a call and does not report it to main Justice.

• Mukasey's position on the administration's policies on secrecy and executive power. Leahy wants to know if Mukasey would review and revise Justice's policies on freedom of information requests to restore a presumption of openness; whether he agrees with the president's policy on prisoner interrogations or its legal justification for the eavesdropping program.

• Mukasey's view of executive privilege and whether it extends to e-mails by Bush's political operatives in matters where the president was not involved.

Leahy sent his letter Tuesday before he received another document from Mukasey, a more routine questionnaire about the nominee's legal background, committee officials said.

Copyright 2007 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.


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