Richardson's Confirmation, a Guide for Mukasey's

New revelations of secret opinions indicate the Justice Department under former Attorney General Gonzales actually authorized head slaps, freezing temperatures, simulated drownings and other abusive interrogation techniques. They are all the more reason to view Bush administration interrogation policies as possible violations of anti-torture laws. It is now imperative that we have a special prosecutor investigate them.

Congressional Democrats have issued subpoenas, demanded testimony of key White House aides, negotiated in good faith with the White House to obtain release of relevant documents to inform confirmation hearings for Attorney General nominee Michael Mukasey - all to no avail.

The White House may continue to try to stonewall Congress on documents and testimony, claiming executive privilege. But it would not be able to stonewall subpoenas from a special prosecutor investigating a possible crime - the Supreme Court has already ruled in the Nixon tapes case that such subpoenas trump presidential secrecy claims. That's a compelling reason for the Senate to use upcoming hearings to demand that Mukasey appoint a special prosecutor if confirmed as Attorney General.

In fact, that is exactly what happened in 1973, in a Watergate precedent that closely parallels the Mukasey nomination today: Attorney General Richard Kleindeinst had resigned under a cloud. President Nixon, faced with a hostile, Democratically controlled Senate, proposed a "consensus" candidate, Elliot Richardson, for Attorney General. Like Mukasey, Richardson was a respected figure whose qualifications were not seriously questioned.

Nonetheless, the Senate Judiciary Committee advised Richardson that he would not be confirmed unless he agreed to appoint a special prosecutor to investigate alleged Watergate crimes. That condition did not impugn the nominee's credentials in any way. Richardson agreed and appointed Archibald Cox to the position, whose investigations and summary dismissal ultimately resulted in the House Judiciary Committee voting to impeach President Nixon, forcing his resignation.

That's a robust precedent, clearly giving the Senate Judiciary the power to advise Mukasey that he, too, must agree to appoint a special prosecutor if he wants to be confirmed. Why not follow the precedent and use this established power?

After all, didn't the Bush administration resist intense pressure to oust former Attorney General Alberto Gonzales for many damaging months, precisely because it did not want the Senate to impose serious conditions on confirming a replacement? Now that the shoe has dropped and Gonzales was ousted anyway, why should the Senate decline to use its leverage, just when it holds a strong hand? Why give the White House a pass on detainee abuse, US attorney firings, its defiance of congressional subpoenas, and its Nixonian recourse to claiming executive privilege?

Even before the new torture memos came to light, there was more than sufficient evidence of possible Bush administration crimes to warrant investigation, including violations of FISA laws, the Geneva Conventions and War Crimes Act, and possible perjury by former Attorney General Gonzales. The Justice Department's inspector general is looking into the latter, though a special prosecutor would be in a more independent position to pursue it. Even if the inspector general uncovers a crime, without a special prosecutor, who would prosecute it?

But beyond Gonzales' role, we need to know about the roles of Karl Rove, the Vice President's Office and even President Bush himself. What did they know, when did they know it, and are they right in asserting their actions were legal? Recent events make it clear that without a special prosecutor, those questions will go unanswered.

The Justice Department needs a new leader who can restore credibility and morale, sooner than later, and confirming a consensus nominee, if that is what Mr. Mukasey turns out to be, would be a welcome step. But it does not necessarily follow that because it has been sent a credible candidate, the Senate should now pull its punches and not exercise its power to demand a special prosecutor.

Using it in 1973 did not hurt Richardson, and doing so now will not hurt Mukasey. Nor did it do any damage to the ultimate credibility of the Justice Department. In fact, then as now, appointing a special prosecutor may be the best way to restore it. Failure to do so would only enshrine a doctrine of impunity for our highest officials.

Former Congresswoman Elizabeth Holtzman served on the House Judiciary Committee during Nixon's impeachment. She co-authored the 1973 special prosecutor statute, and co-wrote (with Cynthia L. Cooper) the 2006 book The Impeachment of George W. Bush.

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