Mukasey’s high court argument

Justice Antonin Scalia is not one to go easy on the lawyers arguing before the Supreme Court – even when said lawyer heads the Justice Department.

When Attorney General Michael Mukasey stood at the podium today urging the Court to hold that, under a statute boosting the penalty for a felony when the perpetrator carries explosives, the explosive need not involve the underlying felony, Scalia did not disguise his skepticism.

“General,” Scalia said, addressing a sitting attorney general arguing in the Court for the first time in 12 years, “could Congress pass a law that said if you wear a wristwatch during the commission of any crime, you get another 10 years?”

Mukasey paused, and then answered: “A statute like that would be entirely unreasonable. It was not entirely unreasonable for Congress to have said if you carry an explosive during the commission of a felony, you’ve added something enormously volatile.”

“Surely it depends on what the felony is,” Scalia said. “If the felony is the filing of a dishonest tax return and you have a can of gasoline with you when you mail the letter, it seems to me quite as absurd as saying wearing a wristwatch in the course of a felony. That’s what troubles me about this.”

Scalia pointed out that carrying explosives in itself could be a wholly legal activity, but add a felony like tax evasion, and it could earn a defendant an extra decade in prison.

“I guess [‘explosives’] would include having some cartridges, explosive cartridges?” Scalia asked

“It would,” Mukasey replied.

“That’s perfectly lawful, and you get another 10 years for it just because you’re mailing a letter to the IRS at the same time?” Scalia pressed.

“It is perfectly lawful,” Mukasey repeated, adding later: “We concede that it was a very broad statute. But that was Congress’s choice. And if Congress chooses to amend the statute, respectfully, it ought to be Congress that amends it.”

Mukasey told reporters earlier in the week that he jumped at the chance to argue before the Court, something no sitting attorney general has done since Janet Reno in 1996.

But the novelty perhaps wore off quickly today for Mukasey who, midway through his alloted time, asked the justices if they had more questions and then took a seat, using only 16 minutes of his half-hour allotment.

The case was U.S. v. Ressam, involving the so-called “millenium bomber.”


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