Doing The Tapegate Dance

By: Andrew Cohen
Topics: Field Notes

(CBS)

Lawyer Andrew Cohen analyzes legal affairs for CBS News and CBSNews.com.

Here is an example of precisely how Attorney General Michael B. Mukasey is making a tangible difference in the kabuki dance between the branches these days over Tapegate, the CIA's controversial destruction of terror interrogation videotapes.

When U.S. District Judge Henry Kennedy decided yesterday to hold off on pursuing his own investigation into the legality of the destruction of the tapes (he had ordered tapes protected just a few months before they were destroyed), he did so by expressing confidence in the new criminal investigation initiated a few weeks ago by the Justice Department — the Mukasey Justice Department. One current federal judge (appointed by a Democrat) showing one former federal judge (appointed by a Republican) no small measure of respect and confidence — what a nice thing to see in the cynic-ridden canyons of power these days!

Can you imagine such respect and deference from the federal bench during the end of the reign of error of former Attorney General Alberto Gonzales? No way. By the end of his tenure at Justice the federal judiciary was bunching up its robes in disbelief at assurances from federal prosecutors. This brief order from Kennedy backs the judiciary out of a looming constitutional showdown with its sister branch and gives both Mukasey and Congress the opportunity to take the first crack at getting to the bottom of this disturbing development.

In a three-page order, Judge Kennedy wrote: "Petitioners argue that the court should not place much stock in the assurances of the Department of Justice. There is no reason to disregard the Department of Justice's assurances ... In a matter such as this, this presumption is especially warranted with respect to the newly appointed Attorney General and Department of Justice lawyers. Petitioners have not presented anything to rebut this presumption. Nor have petitioners presented anything to cause this court to question whether the Department of Justice will follow the facts wherever they may lead and live up to the assurances it made to this court."

This doesn't mean that Judge Kennedy won't ever be willing to jump back into the "case." And now the pressure is even more squarely upon Mukasey to ensure that his department's criminal investigation is thorough, honest and worthy of public respect. We'll see. But I like that Judge Kennedy trusts the Attorney General enough to give him at least an opportunity to succeed. It gives me hope that people smarter than me see a new wave of candor and integrity and professionalism at the Justice Department.