Attorney General Nominee Michael Mukasey’s record as a judge and lawyer shows strong support for the First Amendment rights of the news media, but his rulings on access to courts and government records are much less encouraging, according to a report issued last week by the Reporters Committee for Freedom of the Press.
“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. “We’re optimistic that this will lead to a justice department that is more open to public scrutiny.”
Mukasey became a federal judge in 1987, ultimately serving as chief judge of the U.S. District Court in Manhattan and presiding over the high-profile terrorism-related trials of blind Sheik Omar Abdel-Rahman and Jose Padilla before returning to private practice last year.
Mukasey also has practical experience with the news media. Before becoming a judge, he represented both The Wall Street Journal and the New York Daily News. And as a student at Columbia University in 1963, Mukasey spent one summer as a reporter for United Press International, later turning down a job offer there to attend Yale Law School.
“He seemed to love his work as a reporter,” recalled Alex Michelini, Mukasey’s former editor. “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. 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.”
“My belief is that the media will find an understanding and accommodating attorney general in Judge Mukasey,” former UPI editor 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.”
The report notes that the next attorney general will likely have a significant impact on newsgathering and the public’s right to know, as Freedom of Information Act reforms and a reporter’s shield proposal working their way through Congress and public controversies over everything from the secrecy of national-security-related programs to the U.S. attorney firings continue.
Some notable decisions from his time as a federal judge in New York City:
▪ In 2006, Mukasey refused a motion to compel CBS News to turn over unedited outtakes of a “Sixty Minutes” interview with a defendant in a case over questionable credit practices at a car dealership. Despite determining that the videotape would be highly material and relevant to the suit and was not available through other sources, Mukasey held that the tape was not critical or necessary to the claim.
▪ In 1988, Mukasey dismissed a case against Standard & Poor’s after applying the actual malice standard — knowledge of falsity or reckless disregard for the truth — to a fraud 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 1995 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 demonstrate that CNN acted in a “grossly irresponsible manner” and, because CNN was republishing a Canadian Broadcasting Co. report, 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.
▪ 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 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 2004, Mukasey found 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.
▪ 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, upholding narrow procedural justifications for rejecting requester’s claims, such as ruling in 1981 that a six-year statute of limitations applies in federal FOIA cases and begins to run even before administrative appeals have been exhausted by the requester.
▪ Mukasey’s most high-profile FOIA ruling came in 1995 when he 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 2000, the judge participated in a symposium at Brooklyn Law School entitled “Behind Closed Doors: Secret Justice in America” where he stressed the importance of anonymous juries in high-profile cases “to protect the security of jurors.”