Glenn Greenwald, per usual, makes the case succinctly. Atrios is even more succinct:

It seems that the senators want Mukasey to declare numerous acts of the Bush administration to be violations of law, constitution, and treaty, without taking the next logical step… which is calling for the investigation, prosecution, and imprisonment of those who authorized and committed those illegal violations.

I hope that Senator Schumer can keep that simple idea in the forefront of his mind as he decides what to do about the pickle he is in. Schumer is understandably conflicted, having recommended Mukasey in the first place. On the one hand, he understands a sad reality:

“From this administration, we will never get somebody who agrees with us on issues like torture and wiretapping,” Schumer said at one point, suggesting an argument in favor of Mukasey, who faces a Senate Judiciary Committee vote on Tuesday. “The best thing we can hope for is someone who will depoliticize the Justice Department and put rule of law first.”

On the other hand, he recognizes that confirming Mukasey after his refusal to say that he will enforce congressional subpoenas or that waterboarding is torture, will create a bad precedent.

But Schumer said minutes later that his mind is not made up: “He’s the best we can get, but that doesn’t necessarily ensure a yes vote. I thought John Roberts was the best we could get, but I voted no.”

Greenwald and Atrios do us a service by cutting through the malarkey and getting right to the heart of the matter. The Democrats are caught in a trap of their own creation. They have decided to let lawbreaking go unpunished. Now they are faced with a nominee who, essentially, promises to maintain that policy. And they are outraged.

Congress seems to want the Department of Justice to do what they are, themselves, unwilling or incapable of doing. But there is no prospect of the DOJ punishing the administration’s lawbreaking and this nominee will not even enforce Congress’ subpoenas so that they might be able to do the job in their stead.

Therefore, the issue transcends the confirmation or rejection of Mike Mukasey. They can, and should, reject Mukasey. But, what then? That is the question Schumer is struggling with. The Senate doesn’t have a role in instigating impeachment proceedings. That is a job for the House. But it should be apparent by now why we can’t just skirt around these impeachable offenses. The government, literally, cannot function as long as these crimes go unpunished. Schumer’s dilemma is, perhaps, the perfect illustration of the point.

If Schumer is still not clear on the subject, he should ruminate on this comment from the president.

“If the Senate Judiciary Committee were to block Judge Mukasey on these grounds, they would set a new standard for confirmation that could not be met by any responsible nominee for attorney general. That would guarantee that America would have no attorney general during this time of war.”

It’s not a koan, but this statement deserves extended contemplation. What Bush says is not literally true. Far from it. But it is true that Bush cannot nominate any attorney general that meets the minimum standards the Senate expects. And, why is that?

The answer is that the president has authorized torture and illegal warrantless surveillance, and has committed other crimes that would be exposed if they complied with congressional subpoenas. Any attorney general that met the minimum standards of the Senate would be compelled to take criminal action against the administration.

This is why so many of us have been calling for impeachment hearings. Democrats have been hoping to muddle through and let the electoral process do the job of cleaning up the mess. But, doing the minimum by blocking Mukasey will, as the president says, “guarantee that America would have no attorney general during this time of war.”

Schumer must worry about leaving the DOJ in the hands of an interim hack ‘in a time of war’. But the real issue is leaving the White House in the hands of criminals.

I hope Schumer makes the right decision by opposing the nominee he once recommended. But, once he has done that, I hope he realizes the full implications of his decision. We are now at a point where no one can serve as attorney general because the rule of law no longer exists. And there is only one way remaining to restore it before January 2009.