Evaluation of the likely impact of
Attorney General Nominee Michael Mukasey
on Press Freedoms and the Public's Right to Know

Prepared by The Reporters Committee for Freedom of the Press

September 20, 2007

Any attorney general will have a significant impact on the media's ability to gather and report news and the public's right to know what its government is doing. With Freedom of Information Act reforms and a reporter's shield proposal working their way through Congress, and with the continued public controversies over everything from the secrecy of national-security-related programs to the U.S. attorney firings, presidential nominee Michael Mukasey has the opportunity to make a greater impact than normal.

Mukasey has a reputation as a strong law-and-order judge. But his early career as a reporter and lawyer for media companies is not well known. His learning curve on issues of importance to the media will not be steep.

The staff of The Reporters Committee for Freedom of the Press researched Mukasey's performance as a partner with the New York firm Patterson Belknap Webb & Tyler and later as a judge on the U.S. District Court for the Southern District of New York from 1987 until 2006. (Cases summarized below are those he decided as a judge in the U.S. District Court in New York City (Southern Dist., N.Y.), unless otherwise noted.)

While Mukasey shows a strong tradition of defending the First Amendment rights of the media in libel cases, and his one reporter's privilege decision protected the independence of the news media, 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. In other words, he believes in the independence of the news media in holding the government accountable, but only up to a point.

Background

Born in 1941, Mukasey grew up in the Bronx. While attending college at Columbia University in 1963, Mukasey spent a summer as reporter for United Press International in Newark, N.J. Mukasey declined a job offer to join UPI after graduation and instead attended Yale Law School.

"He seemed to love his work as a reporter. But the fact that he asked for time to think about taking a full-time job with me told me that he was also thinking of going in another direction," recalled Mukasey's former editor Alex Michelini. "I recall being disappointed that he had chosen law because I felt I had discovered a budding journalistic star. But I knew he would succeed in whatever career he chose."

From 1967 to 1972, Mukasey was in private practice with the Patterson Belknap Webb & Tyler, where he represented the Wall Street Journal and the New York Daily News. He went on to join the Manhattan prosecutor's office, where he worked alongside future Mayor Rudy Giuliani.

President Ronald Reagan nominated Mukasey to the federal bench in 1987 and he eventually became chief judge of the U.S. District Court for the Southern District of New York. He presided over a number of high-profile cases, including the terror-related trials of blind Sheik Omar Abdel-Rahman and Jose Padilla.

While on the bench, Mukasey's ran into his former editor, Michelini, who left UPI and spent 30 years with the New York Daily News. In the late 1980s, Michelini covered the federal courthouse in Manhattan.

"We in the media admired and liked him," Michelini told the Reporters Committee. "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."

Mukasey retired from the federal bench in September 2006 to return as a partner at Patterson Belknap. He has been supportive of Giuliani's 2008 presidential campaign, donating to the candidate and serving on his campaign's Justice Advisory Committee.

"My belief is that the media will find an understanding and accommodating attorney general in Judge Mukasey," Michelini said. "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."

Reporter's Privilege

In the 2006 case United Auto Group v. Adam Ewing, Mukasey refused a motion to compel unedited outtakes of an interview with a defendant in a civil case. 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. Rather, the judge concluded that the plaintiff's claim could suffice using only the edited videotape that aired on national television.

Libel and Invasion of Privacy

As a private attorney:

• Mukasey won a motion for summary judgment in 1981 in DeLuca v. New York News, a case against a newspaper for referring to a teacher on health leave currently being sued by the Board of Education as a "no-show" teacher. The court granted the defendant's motion for summary judgment on the grounds that the plaintiff failed to allege any facts indicating that the defendant acted in a "grossly irresponsible" manner and that the characterization of the plaintiff as a "no-show" teacher was an expression of opinion.

• Representing the New York Daily News in 1982, Mukasey lost a motion for summary judgment with regard to several lines in an investigative report on the deinstitutionalization of mental patients stating the an individual suffered a nervous breakdown as a result of a messy divorce and that his son killed himself because his mother, a private figure, dated other men. The court in Gaeta v. New York News Inc. ultimately applied a simple negligence standard as opposed to the "gross irresponsibility" standard argued for by the defendants. However, Mukasey won a motion for summary judgment on behalf of the publisher and editor of the Daily News for those potentially libelous statements as neither the publisher nor the editor played any role in preparing or editing the series of articles.

  In 1983, Mukasey lost his appeal of the lower court's ruling, arguing that the lower court should have applied a stricter standard when considering his motion for summary judgment because the article was within the sphere of legitimate public concern.

  In a second appeal one year later, Mukasey finally succeeded in convincing the court to apply the stricter standard of "gross irresponsibility" to the statements as the article involved a matter of genuine public concern. Applying the heightened standard, the court held that the plaintiff did not proffer any evidence that would justify a jury concluding that the defendants acted in a grossly irresponsible manner.

• In the 1983 case Nemeroff v. Abelson, Mukasey, representing Barron's Business and Financial Weekly and two journalists from the publication, won attorney's fees from plaintiffs who had claimed that certain investors induced a reporter to write negative articles to enhance their short positions in a company's stock. Mukasey successfully argued that the underlying claim was without adequate factual basis and was brought in bad faith.

• In 1985, representing the Daily News, Mukasey won a motion for summary judgment in a defamation suit based on the fair report privilege in Lavin v. New York News. The allegedly defamatory package identifying a possible link between several police officers and the mob was based on a 165-page affidavit filed by the FBI in support of an application for a search warrant.

• Mukasey won a motion for summary judgment in 1984 in a defamation suit based on a New York Sunday News Magazine illustration of a drug deal between two children. Unbeknownst to the magazine and contrary to their instructions asking for an illustration depicting anonymous children, the illustrator used an actual photograph of the plaintiffs as a model for the artwork submitted to the magazine. The court held in Quezada v. Daily News that the defendant did not exhibit gross irresponsibility in publishing the illustration because it had no reason to doubt that the artist would follow its directions. However, the court did not dismiss the plaintiffs' privacy claim, finding that a jury must decide whether the plaintiffs were identifiable in the illustration.

  On appeal, the court affirmed the decision to dismiss the libel claim and reversed the decision regarding the privacy claim, holding that the First Amendment concerns demanded a heightened standard of fault with regards to the privacy claim and that the plaintiffs failed to make an evidentiary showing needed to satisfy such a standard.

As a judge:

• In 1988, Mukasey granted the defendant's motion for summary judgment in First Equity Corp. of Fla. v. Standard and Poor's Corp., after applying the actual malice standard -- knowledge of falsity or reckless disregard for the truth -- to a fraud claim against a corporate records publisher. (Under Supreme Court precedent, the actual malice standard must apply not only to libel claims but to cases where a public figure is suing over damage to reputation while avoiding an actual libel claim.) Mukasey concluded that "the First Amendment requires a demonstration of actual malice where plaintiff seeks to impose liability on a newspaper for publication of a non-defamatory statement."

• In the 1995 case Bryks v. Canadian Broadcasting Corp., Mukasey ruled that the state-owned Canadian broadcasting company was immune from a defamation action under the Foreign Sovereign Immunities Act, but found jurisdiction was proper over CNN, a private company.

  Later in the same case, Mukasey held that CNN could not be found liable for republishing a report containing allegations of sexual assault against school children by a community religious leader. Mukasey held that the plaintiff had to prove that the defendant acted in a "grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties." Because CNN was a republisher of another report, Mukasey noted that the plaintiff had to show evidence that the original publisher was either generally unreliable as a news source or that there were substantial reasons to question the specific report's accuracy. A showing that the original publisher lost a single libel verdict was insufficient to prove them as generally unreliable. Likewise, the inclusion of sexual misconduct allegations, anonymous sources and "recovered memories" did not prove that CNN should have questioned the report's accuracy.

• In the 1992 case Wachtel v. Storm, Mukasey denied a defendant's motion to dismiss for failure to state a claim, finding that a letter printed in a trade publication stating that "outrageous overhead and unrelated business expenses" contributed to the bankruptcy of the plaintiff's company may be read as factual assertions that impugn the plaintiff's honesty, fitness to manage a retail operation and ability to pursue his trade. The court held that the plaintiff satisfactorily alleged a breach of the actual malice standard by claiming that when the defendant made the statements he knew them to be false.

• In the 1997 case Ty v. Celle, Mukasey denied defendant's motion for summary judgment, finding that statements made during the first two hours of the defendant's radio program could have been defamatory even though they never explicitly identified the sausage company plaintiff and the defendant disclaimed that the statements were in reference to a sausage company during the second half of the program. During the program, the defendant offered hints as to the company he called "cheats" and "swindlers."

• Mukasey granted a motion for summary judgment in 1998 in favor of the estate of rapper Tupac Shakur, finding that rap lyrics indicating that the plaintiff was a government informant were not defamatory. The judge noted in Agnant v. Shakur that to be libelous under state law, a false statement must hold the plaintiff up to ridicule or scorn in the minds of "right-thinking persons" and those persons who would think ill of an individual who legitimately cooperates with law enforcement officials are not of that class.

• In 1998, Mukasey dismissed a defamation claim and awarded attorney's fees to the defendant in Nyitray v. Johnson after finding the statute of limitations barred the claim, that the allegedly defamatory statement was protected by a qualified "common interest" privilege, and that the allegedly defamatory statements were true.

• In the 2000 case Van Buskirk v. New York Times Co., Mukasey granted a motion to dismiss a defamation claim where an Internet Web site and the New York Times published similar articles referencing a CNN report on a 1970 U.S. military operation with the objective of killing American defectors in a Laotian village. The CNN report indicated that the plaintiff was the sole source for the story and a participant in the raid. Mukasey held that the plaintiff did not identify a plausible defamatory meaning as the articles explicitly questioned the validity of the CNN report.

  Later in the same case, Mukasey refused to hear the plaintiff's motion for reconsideration on the prior Van Buskirk case because the motion was not timely served and because the plaintiff raised a new matter, which fell outside the bounds of the local rule allowing for reconsideration.

• In the 2001 case Marino v. Northwestern Mutual Life Insurance Co., Mukasey held that a defamation claim could withstand a motion to dismiss where the plaintiff claimed that the defendant insurance company falsely stated to one of the plaintiff's vendors that the plaintiff was engaged in insurance fraud and that his company was unable to pay its debts.

• In 2004, Mukasey affirmed a magistrate's grant of summary judgment in Perkins v. The City of New Rochelle, finding that a police officer's statements to a grand jury are protected by an absolute privilege and that statements made to a newspaper are protected by a qualified privilege.

Freedom of Information

Mukasey's judicial record on the federal Freedom of Information Act is relatively sparse, revealing three reported FOIA cases in the early and mid-1990s. Notably, Mukasey ruled against the plaintiff requesters in all three cases.

In Peck v. CIA, Mukasey took a hard line on the six-year statute of limitations applied in federal FOIA cases. Mukasey found that a FOIA requester seeking documents from the CIA in late 1981 gained a "right of action" to sue the agency immediately after the agency missed FOIA's initial 10-day deadline to fully respond, despite the fact that, in its initial and incomplete response, the CIA had essentially recommended that the requester give the agency more time to fulfill the request – a suggestion upon which the requester said he relied.

In his Peck decision, Mukasey also made light of the fact that the CIA had effectively cured its time-limit violation by fully responding to the request in 1984, prior to requester's lawsuit. This circumstance created a seemingly paradoxical situation where the requester's six-year statute of limitations "clock" was running during a period, albeit brief, when the requester was not allowed to sue because his administrative remedies remained available.

A year after the Peck decision, in Sloman v. United States Dep't of Justice, Mukasey found that a timely, if incomplete, response from the agency that fell short of properly responding to the requester by only sending notice that the agency needed more time still served to maintain the requester's administrative remedies.

In another part of the Sloman decision that focused on the plaintiff's attempts to obtain documents concerning political activist Abbie Hoffman, Mukasey denied the plaintiff's request to waive the fees related to the documents' retrieval. Mukasey found that because most of the documents were already available to the public outside of agency control, releasing the documents again to the plaintiff would not, in itself, "contribute significantly to public understanding of the operations or activities of the government," as FOIA law requires.

Mukasey's most high-profile FOIA ruling came with his 1995 decision in Nadler v. FDIC, in which Mukasey denied the requests of Manhattan community groups joined by Rep. Jerrold Nadler (D-N.Y.) to obtain land development plans from the FDIC, after the agency gained control of the plans from a failed bank. Mukasey ruled that the FDIC could withhold the plans through FOIA's Exemption 4, which protects confidential commercial information and trade secrets, even though the exemption had typically been invoked to protect the interests of private companies rather than those of government agencies.

In reviewing the cases, Dan Metcalfe, a former director of the Department of Justice's Office of Information and Privacy and now a professor at American University's Washington College of Law, said he agreed with all three outcomes.

But Metcalfe argued that Mukasey ruled incorrectly in the Sloman case that "constructive exhaustion" of a FOIA requester's administrative remedies could be averted through a timely agency response that asserted the need for more time to complete the request. As in the Peck decision, the Sloman requester should have gained the right to file suit immediately after the agency failed to adequately respond following the statutory time limit's expiration, Metcalfe said.

As occurred when Mukasey's predecessor, Alberto Gonzales, took office in 2005, experts do not expect significant changes in the Bush administration's FOIA policy as a result of Mukasey's arrival. Nor is it expected that former Attorney General John Ashcroft's October 2001 FOIA memorandum will be altered. The controversial directive advised agency FOIA officers to withhold information upon recognizing a "sound legal basis" for doing so – a standard that relaxed the Clinton administration's policy of only withholding agency information when the agency recognized a "foreseeable harm" through disclosure. The Ashcroft memorandum also pointedly assured agencies that the Justice Department would defend the use of FOIA exemptions.

"Especially given how little time remains in this administration, it's difficult to imagine new Attorney General Mukasey having much impact on the FOIA at all," Metcalfe said. "There certainly are larger matters to be attended to, including restoring the Justice Department's reputation and the morale of its employees."

Secret Courts

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. These instances were related to cases involving terrorism issues or other matters of national security, or cases that were generally high profile in nature.

While Mukasey was practicing at Patterson, Bellknap, Webb & Tyler in 1983, he submitted a friend-of-the-court brief as one of a team of lawyers in In re Application of The Herald Co., a case where a federal judge closed the courtroom to the public for a pretrial motion to suppress. The brief, written on behalf of the New York Times Co., New York. News, Inc. and Gannett Co., Inc., supported the Syracuse Post Standard's attempts to gain access to a courtroom in the U.S. District Court in Syracuse, N.Y.

However, Mukasey was not always so supportive of court access. In 2000, he participated in a symposium at Brooklyn Law School entitled "Behind Closed Doors: Secret Justice in America" where he offered a judicial perspective discussing the conundrum of secrecy judges face in terrorism and high profile cases. In his speech at the symposium, Mukasey stressed the importance of anonymous juries in high-profile cases "to protect the security of jurors." He discussed the necessity of a secret jury in the 1995 terrorism trial, United States v. Rahman.

Rahman involved a confidential proceeding relating to a witness, without which, Mukasey said, the witness' life would have been at risk. This was perhaps the judge's most well-known trial. It resulted in the conviction of 10 militant Muslims whom he found had plotted to blow up the World Trade Center and other New York City landmarks. Central defendant sheik Omar Abdel Rahman, the "blind sheik," received a life sentence in the case and due to its high-profile nature, Mukasey was placed under 24-hour guard. Early on in the case, Mukasey sternly demanded that law enforcement officials stop leaking drug and terror information about the suspects, which defense counsel argued were prejudicing potential jurors and denying the defendants a fair trial. However, once the trial concluded, Mukasey proposed unsealing almost all of the sealed portions of the transcript in the case, but government lawyers opposed that move and Mukasey ended up allowing most of those pages to remain sealed.

In a more recent high-profile terrorism case, Rumsfeld v. Padilla, Mukasey signed the material witness warrant that authorized the 2002 arrest of Jose Padilla, who would later be declared an enemy combatant and convicted of aiding terrorists. Mukasey issued the warrant because Padilla had information that could be of use to a grand jury investigation but he could not be guaranteed to appear at a trial. Mukasey later issued a forceful order in the case, which required the government to allow the prisoner contact with his attorneys. "Lest any confusion remain, this is not a suggestion or a request that [the prisoner] be permitted to consult with counsel, and it is certainly not an invitation to conduct a further 'dialogue' about whether he will be permitted to do so," the judge wrote. "It is a ruling – a determination – that he will be permitted to do so."

Mukasey issued a gag order in an insurance case related to the Sept. 11, 2001 attacks. The case involved several consolidated lawsuits and parties but could generally be known as SR International Business Corp. v. World Trade Center Properties, LLP. It involved developer Larry Silverstein who had argued the disaster was two separate attacks, which warranted double payments from the companies who insured the World Trade Center. Silverstein held a 2004 news conference discussing his position despite the gag order and barely escaped being held in contempt of court. Mukasey banned him from the courtroom for the duration of the trial.

CITES:

Agnant v. Shakur, 30 F.Supp.2d 420 (S.D.N.Y. 1998)

Bryks v. Canadian Broadcasting Corp., 906 F. Supp. 204 (S.D.N.Y. 1995).

Bryks v. Canadian Broadcasting Corp., 928 F. Supp. 381 (S.D.N.Y. 1996).

DeLuca v. New York News, Inc., 438 N.Y.S.2d 199 (N.Y.Sup. 1981).

Gaeta v. New York News, Inc., 454 N.Y.S.2d 179 (N.Y. Sup. 1982).

Gaeta v. New York News, Inc., 62 N.Y.2d 340 (C.A.N.Y. 1984).

Gaeta v. New York News, Inc., 95 A.D.2d 315 (N.Y.A.D. 1983).

In re Application of The Herald Co., 734 F.2d 93 (C.A.N.Y. 1984)

Lavin v. New York News, Inc., 757 F.2d 1416 (3rd Cir. 1985).

Marino v. Northwestern Mutual Life Insurance Co., 2001 WL 262574 (S.D.N.Y. 2001)

Nadler v. FDIC, 899 F.Supp.158 (S.D.N.Y 1995)

Nemeroff v. Abelson, 704 F.2d 652 (C.A.N.Y. 1983).

Nyitray v. Johnson, 1998 WL 67651 (S.D.N.Y. 1998)

Peck v. CIA, 787 F.Supp. 63 (S.D.N.Y. 1992)

Quezada v. Daily News, 479 N.Y.S.2d 682 (N.Y.City.Civ.Ct. 1984).

Quezada v. Daily News, 501 N.Y.S.2d 971 (N.Y. Sup. 1986).

Rumsfeld v. Padilla, 256 F.Supp.2d 42 (S.D.N.Y. 2003); available at http://www.ccr-ny.org/v2/legal/september_11th/docs/PadillaDistCrtDecision.pdf

Sloman v. United States Dep't of Justice, 832 F.Supp. 63 (S.D.N.Y. 1993)

Ty v. Celle, 1997 WL 167041 (S.D.N.Y. 1997)

United Auto Group v. Adam Ewing, 34 Med. L. Rptr. 1801 (S.D.N.Y. 2006)

Van Buskirk v. New York Times Co., 28 Media L. Rep. 2525 (S.D.N.Y. 2000).

Van Buskirk v. New York Times Co., 29 Media L. Rep. 1799 (S.D.N.Y. 2001).

Wachtel v. Storm, 796 F. Supp. 114 (S.D.N.Y. 1992).