The defendant moved in the circuit to disqualify the entire justice department from representing the government on this appeal, because the judgment under review was rendered by Judge Mukasey, who is now Attorney General.
The court denied the motion. It began by noting that there was “very little precedent” on the “potential conflict of interest created by the transition from judge to prosecutor.” The court surveyed a few possible areas of conflict, but skipped the most obvious one: A prosecutor will be unlikely to confess error on appeal if he was the trial judge in the case.
In any event, here there is no possibility for conflict because, the government advises, the attorney general has recused himself “from all matters in which he participated as a United States District Judge.” Thus, he will play no role in this appeal, and in the unlikely event that supervision at the level of the Attorney General’s office becomes necessary, someone else will do it.
This screening process is adequate, particularly given the enormous burden on the government and the public in disqualifying the entire department of justice.
