Attorney General Michael Mukasey argued his first case before the Supreme Court on Tuesday.
The case involved the so-called "Millennium Bomber," Ahmed Ressam, who tried to smuggle explosives into the United States from Canada. A jury convicted Ressam on nine counts, including carrying explosives during a felony (lying to an immigration agent). Ressam's lawyers argued that the lie was not related to the explosives, so count nine should be thrown out for sentencing purposes.
Justice Ruth Bader Ginsberg asked Mukasey, who was a federal judge for almost 20 years, why prosecutors tied the explosives charge to the false statements in the first place, "instead of some charges with which it would have been more logically linked," like conspiracy to commit an act of terrorism.
Mukasey said the evidence supporting the false statements charge "was, to use a colloquialism, a lead pipe cinch. He had clearly made a false statement. He had clearly carried an explosive while doing it." Prosecutors wanted a charge on which jurors were sure to convict him.
Justice Antonin Scalia asked, "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," can you get another 10 years added to your sentence just because technically you were carrying explosives?
Chief Justice John Roberts asked whether there's a Justice Department policy not to bring those kinds of absurd prosecutions.
"Not that I'm aware of," Mukasey responded.
When Justice Anthony Kennedy suggested that the lawyer standing before him could create such a policy, the attorney general said, "I think I'd be ideally suited to do that," prompting laughter from the audience.
The justices did not seem to go easy on Mukasey, but they were not especially aggressive either. Seven of the nine judges asked him questions. Mukasey finished with time to spare, which is unusual in a Supreme Court argument. Though it's tradition for the attorney general to argue before the justices, neither of President Bush's last two attorneys general took advantage of the opportunity.
After the arguments, Mukasey posed on the steps of the courthouse for photos with his wife and children. He didn't talk with reporters, but his opponent, Tom Hillyer, did.
"I think he did great," Hillyer said. "I'm sure he was nervous, even though he probably masked it a lot better than I."