Rep. Bill Delahunt (D-MA) wanted some clarity during his questioning. Was the attorney general really saying that anyone who acted pursuant to a Justice Department legal opinion was “insulated from criminal liability?”
Mukasey wanted to say it more carefully. “I think what I said was that we could not investigate or prosecute somebody for acting in reliance on a Justice Department opinion.”
But even if that opinion was “inaccurate,” Delahunt wondered, and that behavior really did violate the U.S. criminal code, you’re saying that someone who relied on it would effectively have “immunity from any culpability?”
“Justified reliance,” Mukasey answered, “could not be the subject of a prosecution.” Simple as that. “Immunity connotes culpability,â he added, so it wasn’t immunity, exactly, but the effect was the same.
Delahunt (much like Sen. Joe Biden (D-DE) in the last hearing) proclaimed himself baffled. This was a “new legal doctrine” for him. He’d thought “the law is the law.” What if there was a mistake? he wanted to know. What happened then?
That made no difference, Mukasey said. If a later legal opinion came to a different conclusion about whether something was lawful, the person who relied on the earlier, erroneous interpretation was still protected.
Delahunt, still baffled, wanted to know if there was a “legal precedent” for this view of the Office of Legal Counsel’s power.
Mukasey replied that it was a “practical consideration.”
When Delahunt asked again, Mukasey admitted, “I can’t sit here and cite a case.”
Update: As I said earlier, it’s worth recalling former OLC chief Jack Goldsmith’s comments that the OLC has the power to dispense “advance pardons.”