Patterico's Pontifications

11/8/2018

Mueller Better Not Go After Trump’s Finances with His Lynch Mob, Says…This Fella

Filed under: General — Patterico @ 7:09 am

The fella, whose opinion piece was published at CNN in August 2017, sure thought Mueller needs to stay in line:

Last month, when President Donald Trump was asked by The New York Times if special counsel Robert Mueller would be crossing a line if he started investigating the finances of Trump and his family, the President said, “I think that’s a violation. Look, this is about Russia.”

The President is absolutely correct. Mueller has come up to a red line in the Russia 2016 election-meddling investigation that he is dangerously close to crossing.

According to a CNN article, Mueller’s investigators could be looking into financial records relating to the Trump Organization that are unrelated to the 2016 election. According to these reports, “sources described an investigation that has widened to focus on possible financial crimes, some unconnected to the 2016 election.” The piece goes on to cite law enforcement sources who say non-Russia-related leads that “involve Trump associates” are being referred to the special counsel “to encourage subjects of the investigation to cooperate.”

This information is deeply concerning to me. It does not take a lawyer or even a former federal prosecutor like myself to conclude that investigating Donald Trump’s finances or his family’s finances falls completely outside of the realm of his 2016 campaign and allegations that the campaign coordinated with the Russian government or anyone else. That goes beyond the scope of the appointment of the special counsel.

. . . .

If he were to continue to investigate the financial relationships without a broadened scope in his appointment, then this would raise serious concerns that the special counsel’s investigation was a mere witch hunt.

The author: one Matthew Whitaker. Here’s more Whitaker, touting a piece that recommends that Trump not cooperate with Mueller’s “lynch mob”:

From the piece:

For its part, the Trump people have hired a phalanx of high-priced lawyers. One of them, special counsel to the president Ty Cobb, has announced that “The White House is committed to fully cooperating with Mr. Mueller.”

I sure hope Ty was kidding. Cooperation with Mueller’s lynch mob is the last thing Trump or any of his people should do.

If the name Matthew Whitaker sounds familiar, it should. That’s who Donald Trump just named as acting Attorney General. He’s now in charge of the Mueller investigation.

Here he is saying there is no evidence of obstruction of justice or collusion — although he does praise Mueller in general, and state that perhaps Mueller has evidence he is not revealing — and admonishes Trump for seeming to find the secret Cohen tapes amusing:

Will Whitaker recuse himself from supervision of the investigation, having made these very public and very derisive comments about it? My firm prediction is: hell no. That’s why Trump put him there. He thought he had a loyalist in charge with Sessions, and felt betrayed when Sessions recused himself. He fired Comey for not being a loyalist. (Whitaker says Trump was right to fire Comey, by the way.) All that matters to Trump is having a loyalist in charge of this investigation.

Now he appears to have one.

[Cross-posted at The Jury Talks Back.]

109 Responses to “Mueller Better Not Go After Trump’s Finances with His Lynch Mob, Says…This Fella”

  1. Hooray

    Patterico (115b1f)

  2. mueller’s corrupt and dirty he’s gonna do whatever the hell he wants

    this is just the fbi way anymore

    this is just how they do

    happyfeet (28a91b)

  3. That’s what I’ve been saying. And this was from awhile back, but Mr. Wittes’ point still holds:

    Trump wants to politicize law enforcement. He announces this himself. He talks openly about the job of the attorney general as protecting him and going after his political enemies. He says he admires Eric Holder’s protection of Barack Obama—a supposed corruption that represents yet another conspiracy theory, but one that sheds enormous light on his thinking about how an attorney general should behave. Trump is many things, but on this point he is no hypocrite. He has said exactly what he thinks law enforcement should be: his political plaything, his tool for the crude form of justice Polemarchus describes in Plato’s Republic: “rewarding friends and punishing enemies.”

    Trump didn’t like Session because he wasn’t enough of a political hack for Trump’s liking, but now Trump’s got one in Whitaker. All I can say is that Mueller needs to finish his work quickly.

    Paul Montagu (4575b4)

  4. Whitaker might want to investigate how Whitey Buklger, who might have had a story or two to tell about Robert Mueller, got transferred to general population in a prison with a mob hitman just waiting to kill him and who immediately killed him.

    nk (dbc370)

  5. *Bulger*

    What? Everybody else is entitled to a conspiracy theory except me?

    nk (dbc370)

  6. it’s easy to see the FBI ordering hits on people to protect their hoax investigations cause they’re so unscrupulous and amoral

    happyfeet (28a91b)

  7. they don’t value human life the same way we do

    happyfeet (28a91b)

  8. “Will Whitaker recuse himself from supervision of the investigation, having made these very public and very derisive comments about it? My firm prediction is: hell no. That’s why Trump put him there.“

    Did Mueller recuse himself from the investigation, given his long running lucrative and cozy relationship with Comey? Hell no. That’s why Rod “the wire” Rosenstein put him there.

    See how that works?

    Munroe (e31641)

  9. If Mr. Trump, the President, appoints Pam Bondi, the Florida [rhymes with limbo], Attorney General, will you still love him, happyfeet?

    nk (dbc370)

  10. Did Mueller recuse himself from the investigation, given his long running lucrative and cozy relationship with Comey?

    When a police officer is shot, should his colleagues recuse themselves from investigating the murder because they knew the victim?

    Comey is neither a target or subject of the investigation.

    Dave (9664fc)

  11. Pam Bondi’s no good but the DOJ’s been a good place for a long time to shunt your trashier people like Pam

    it’s kinda like the Department of Education except everybody went to law school

    happyfeet (28a91b)

  12. “Comey is neither a target or subject of the investigation.”
    Dave (9664fc) — 11/8/2018 @ 7:43 am

    So, Comey’s firing as a possible obstruction of justice was never within the scope of the investigation, and never will be.

    Good to know!

    Munroe (be98e5)

  13. Whitaker’s just another politician. *YAWN*

    Gryph (08c844)

  14. I really don’t get this guys… why wouldn’t Presidents appoint someone who’s loyal??? Isn’t this de jour in most administrations??

    However, he could do worst…

    He could’ve picked Kris Kobach.

    O.o

    whembly (b9d411)

  15. So, Comey’s firing as a possible obstruction of justice was never within the scope of the investigation, and never will be.

    Good to know!

    Words mean things. In general terms:

    A “target” of an investigation is someone being actively investigated based on suspicion of committing a crime.

    A “subject” of an investigation is someone who is not currently a target, but who might become one as more information is developed.

    Comey is neither of those things.

    Dave (9664fc)

  16. Christie’s name is also being bruited. I doubt it, or at least hope not. He would have been a great transition manager, White House Chief of Staff too, but I don’t want him as Attorney General.

    nk (dbc370)

  17. Is this sarcasm, Patterico? Or are you serious?

    mg (9e54f8)

  18. I’m shocked, shocked, I say, to see that political activity occurs in the offices of prosecutors!

    AZ Bob (885937)

  19. Christie’s name is also being bruited. I doubt it, or at least hope not. He would have been a great transition manager, White House Chief of Staff too, but I don’t want him as Attorney General.

    Not that this is any obstacle in Trump’s eyes, of course, but doesn’t he have the same conflict of issues as Sessions? He was involved in the campaign too.

    In any case, he’ll have the meat loaf – you can be sure of that.

    Dave (9664fc)

  20. same conflict of *interest

    Dave (9664fc)

  21. Being involved in the campaign is not a conflict.

    nk (dbc370)

  22. In Trump’s campaign, I mean. If he had been involved in Hillary’s campaign, it might be.

    nk (dbc370)

  23. “Comey is neither of those things.”
    Dave (9664fc) — 11/8/2018 @ 8:07 am

    Correct, as I didn’t assert otherwise. Words do mean things.

    His firing was the trigger for the SC.

    In your police officer analogy, you made sure to make it a murder rather than something actually analogous. It’s a policeman’s job to investigate a homocide.

    Comey was fired, not murdered. It is usually not illegal to fire a subordinate, and not usually a policeman’s job to investigate.

    Your analogy should be: When a police officer is fired, should one of his closest associates recuse himself from leading the investigation as to whether the firing was improper?

    Yes, he should.

    Munroe (15e677)

  24. Christie won’t be AG because he defended Mueller’s work. That’s a full-tilt fail of Trump’s loyalty test.

    Paul Montagu (4575b4)

  25. Your analogy should be: When a police officer is fired, should one of his closest associates recuse himself from leading the investigation as to whether the firing was improper?

    Mueller is not “one of Comey’s closest associates”. They worked together briefly, 15 years ago.

    Dave (9664fc)

  26. What’s Happyfeets beef with Bondi?

    urbanleftbehind (22b95a)

  27. Not only are there ethical reasons for Whitaker not overseeing the Special Counsel, there are Constitutional reasons.

    Paul Montagu (4575b4)

  28. ‘Mueller is not “one of Comey’s closest associates”. They worked together briefly, 15 years ago.’
    Dave (9664fc) — 11/8/2018 @ 8:33 am

    Even if that were accurate, and it’s not, you’re simply quibbling.

    There were many candidates available for SC who had zero intersections with Comey.

    Both Trump and Rod “the wire” knew exactly what they were doing when they chose who they chose. The difference is that only one is up for re-election, where the people have a direct say.

    But, let’s keep on pretending one tribe’s motivations are pure and above reproach.

    Munroe (d5ebcc)

  29. Yeah, that’s what everyone at MSNBC is saying too.

    rcocean (1a839e)

  30. …zero intersections with Comey.

    That’s not the standard in the DOJ for conflicts of interest. Mueller was vetted by career ethics officials in the DOJ and there were no objections. There were objections from them regarding Sessions’ involvement.

    Paul Montagu (4575b4)

  31. ubu @ 26

    I think it’s because she makes a point of being anti-abortion.

    kishnevi (378575)

  32. I didn’t know that about her. I don’t like her because she persecuted George Zimmerman, and then went on to further interfere with the prosecutorial discretion of local State’s Attorneys.

    nk (dbc370)

  33. “That’s not the standard in the DOJ for conflicts of interest.”
    Paul Montagu (4575b4) — 11/8/2018 @ 9:05 am

    Probably the same DOJ standard for supporting evidence in a FISA warrant, or for redacting the cost of a $70,000 conference table.

    When the ethics of DOJ top brass are legitimately called into question, “DOJ standards” don’t mean squat. But, keep clinging….

    Munroe (d1c730)

  34. Speaking of lynch mobs, I haven’t had a chance to check if there’s any reporting in the news media about the Democrat shock troops and their attempts to break down the front door of Tucker Carlson’s residence and blocking off the street so authorities couldn’t provide assistance.

    Colonel Haiku (f2bc98)

  35. bondi’s a democrat who became a republican to get elected

    and what she did on Mr. Zimmerman was really nasty and she’s a disgusting human being what’s got no business administering any part of a legal system

    happyfeet (28a91b)

  36. Probably the same DOJ standard for supporting evidence in a FISA warrant, or for redacting the cost of a $70,000 conference table.

    Noted, that you’re inventing your own standard and ignoring the protocols they already have in place, protocols that Sessions abided by and that Whitaker probably won’t because he’s trying to pass his loyalty test.

    Paul Montagu (4575b4)

  37. More on the constitutionally questionable elevation of Whitaker.

    What now seems an eternity ago, the conservative law professor Steven Calabresi published an op-ed in The Wall Street Journal in May arguing that Robert Mueller’s appointment as special counsel was unconstitutional. His article got a lot of attention, and it wasn’t long before President Trump picked up the argument, tweeting that “the Appointment of the Special Counsel is totally UNCONSTITUTIONAL!”
    Professor Calabresi’s article was based on the Appointments Clause of the Constitution, Article II, Section 2, Clause 2. Under that provision, so-called principal officers of the United States must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.
    He argued that Mr. Mueller was a principal officer because he is exercising significant law enforcement authority and that since he has not been confirmed by the Senate, his appointment was unconstitutional. As one of us argued at the time, he was wrong. What makes an officer a principal officer is that he or she reports only to the president. No one else in government is that person’s boss. But Mr. Mueller reports to Rod Rosenstein, the deputy attorney general. So, Mr. Mueller is what is known as an inferior officer, not a principal one, and his appointment without Senate approval was valid.
    But Professor Calabresi and the president were right about the core principle. A principal officer must be confirmed by the Senate. And that has a very, very significant consequence today.
    It means that President Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.
    Much of the commentary about Mr. Whitaker’s appointment has focused on all sorts of technical points about the Vacancies Reform Act and Justice Department succession statutes. But the flaw in the appointment of Mr. Whitaker, who was Mr. Sessions’s chief of staff at the Justice Department, runs much deeper. It defies one of the explicit checks and balances set out in the Constitution, a provision designed to protect us all against the centralization of government power.
    If you don’t believe us, then take it from Supreme Court Justice Clarence Thomas, whom President Trump once called his “favorite” sitting justice. Last year, the Supreme Court examined the question of whether the general counsel of the National Labor Relations Board had been lawfully appointed to his job without Senate confirmation. The Supreme Court held the appointment invalid on a statutory ground.
    Justice Thomas agreed with the judgment, but wrote separately to emphasize that even if the statute had allowed the appointment, the Constitution’s Appointments Clause would not have. The officer in question was a principal officer, he concluded. And the public interest protected by the Appointments Clause was a critical one: The Constitution’s drafters, Justice Thomas argued, “recognized the serious risk for abuse and corruption posed by permitting one person to fill every office in the government.” Which is why, he pointed out, the framers provided for advice and consent of the Senate.
    What goes for a mere lawyer at the N.L.R.B. goes in spades for the attorney general of the United States, the head of the Justice Department and one of the most important people in the federal government. It is one thing to appoint an acting underling, like an acting solicitor general, a post one of us held. But those officials are always supervised by higher-ups; in the case of the solicitor general, by the attorney general and deputy attorney general, both confirmed by the Senate.

    Paul Montagu (4575b4)

  38. Quoting Dave – “When a police officer is shot, should his colleagues recuse themselves from investigating the murder because they knew the victim?

    Comey is neither a target or subject of the investigation.”

    Yet when they testify on the stand during the trial, you can bet a good defense attorney would try to show to a jury that they are biased because they were friends with the victim. Mueller and Comey have been buddies/cronies since the 1990s. I think it would be legitimate line of attack for any president to ask if a special counsel investigating him or her is biased because they are pissed their buddy got canned for being a self-serving dirtbag.

    CygnusAnalogMan (9c66ec)

  39. dirty mueller’s probably thinking he needs to wrap this up and cash in before we get a real AG what could easily throw him and his criminal fbi trash-buddies in jail for life

    happyfeet (28a91b)

  40. @37: Former Obama lawyers must have to twist themselves into a pretzel to conjure up a pose where the Constitution actually matters to them. And, they can maintain that contorted posture just long enough to pen a self-serving piece for the NYT.

    Once they’ve returned to power, it’s back in the shredder.

    Munroe (505c89)

  41. So when Sally Yates was acting Attorney General before Sessions was confirmed, that was unconstitutional?

    nk (dbc370)

  42. Former Obama lawyers must have to twist themselves into a pretzel to conjure up a pose where the Constitution actually matters to them. And, they can maintain that contorted posture just long enough to pen a self-serving piece for the NYT.

    Ad hom noted, which is a convenient way to elide from the substance. Mr. Whitaker is now a principal officer, even in an acting capacity, and since principal officers must be confirmed by the Senate under Article II, Trump has just created himself a Constitutional crisis. Who am I to argue against Clarence Thomas.

    Paul Montagu (4575b4)

  43. So when Sally Yates was acting Attorney General before Sessions was confirmed, that was unconstitutional?

    Sally Yates was confirmed by the Senate for her Deputy AG slot, so Constitutional crisis averted, just as Rosy was confirmed by the Senate for Deputy AG. I do recall that Trump did put his hand on a Bible and swore to defend and uphold the Constitution, which implicitly includes Article II.

    Paul Montagu (4575b4)

  44. BTW, admire Clarence Thomas all we want, a special concurrence is not law. The majority opinion (5 Justices) is law. Moreover, I just saw that it’s from the NYT, so phooey on that dreck. It’s good for conversation at Will Schorr’s cocktail parties and not much else.

    nk (dbc370)

  45. “So when Sally Yates was acting Attorney General before Sessions was confirmed, that was unconstitutional?”

    Sally Yates had already been confirmed by the Senate as Deputy Attorney General.

    Davethulhu (fab944)

  46. Sally Yates was confirmed by the Senate for her Deputy AG slot,

    so Trump could have appointed her Secretary of Defense without further action by the Senate. Okay, then.

    nk (dbc370)

  47. In the previous thread, Beldar set out the statute for interim appointments. Unless that has been held unconstitutional, won’t you try this divine hors d’oeuvre? It goes so well with the Chardonnay.

    nk (dbc370)

  48. “Trump has just created himself a Constitutional crisis.”
    Paul Montagu (4575b4) — 11/8/2018 @ 10:56 am

    I encourage the appropriate plaintiff to file suit.

    And, I encourage Trump to send a nominee to the Senate immediately after the new Congress is seated, taking advantage of his post blue trickle Senate gains.

    Munroe (a89442)

  49. Christie would be unforgivable.

    Ed from SFV (6d42fa)

  50. So perkins and coie pulls its lich ness head in the waterm

    Narciso (806c22)

  51. Loch ness, this is in my former haunts

    Narciso (806c22)

  52. …so Trump could have appointed her Secretary of Defense without further action by the Senate. Okay, then.

    That’s a nice distortion. There is an AG Succession Act under the US Code, which would put either the Deputy AG or the Solicitor General in the AG slot. But, playing along, I’d rather see Mattis–who was Trump-appointed and Senate-confirmed–transferred to AG than Whitaker be installed in that job without Senate confirmation. It would be less head-scratching than Obama moving Yates to a senior job at DoD. There is a valid question as to which law supercedes, 28 USC 508 or the FVRA, but it seems to me that both would still butt up against Article II.

    Paul Montagu (4575b4)

  53. “Christie would be unforgivable.”

    Unfillable too. Have you seen that man around a dozen donuts?

    Colonel Haiku (f2bc98)

  54. democrats steal vote lead for sinema by throwing away mcsally votes in 13 counties!

    az jay (59470e)

  55. I encourage the appropriate plaintiff to file suit.

    The person affected by Whitaker’s next decision will have standing, and said person can go to court and say that Whitaker does not the authority because he’s not a legitimate AG, acting or otherwise. I would like to see a court settle this.

    Paul Montagu (4575b4)

  56. “Matthew Whitaker joined the Trump Justice Department as Sessions’s chief of staff in October 2017. The date is relevant. The president has named him as acting attorney general under the Vacancies Reform Act of 1998 (the relevant provisions are codified at Sections 3345 and 3346 of Title 5, U.S. Code). There has been some commentary suggesting that because Whitaker was in a job (chief of staff) that did not require Senate confirmation, he could not become the “acting officer” in a position (AG) that calls for Senate confirmation. Not so. The Vacancies Act enables the president to name an acting officer, who may serve as such for 210 days, as long as the person named has been working at the agency or department for at least 90 days in a fairly high-ranking position. Whitaker qualifies.”

    Also

    While the press remains remarkably indifferent to Rosenstein’s conflicts, it is all over what are said to be Whitaker’s — stemming from an opinion essay he wrote for CNN a couple of months before joining the Trump administration. It is being alleged that Whitaker contended that any probe of the president’s finances would be beyond the scope of Mueller’s jurisdiction; he is further accused of using President Trump’s derogatory phrase — “witch hunt” — to belittle Mueller’s investigation. That is an overwrought distortion of what Whitaker wrote.

    The New York Times had asked President Trump if Mueller would be acting outside his mandate if he began investigating the Trump family finances. The president responded, “I think that’s a violation. Look, this is about Russia.” The burden of Whitaker’s op-ed was to defend Trump’s statement, which — while curt and ambiguous — did not claim that Mueller would be in the wrong if his inquiry into Trump’s finances had some good-faith connection to Russia.

    Whatever Trump may have meant, Whitaker was emphatic about what he found objectionable: the notion of an investigation unconnected to Russia — i.e., a fishing expedition into Trump’s finances without any articulable nexus to what Mueller was appointed to investigate, namely, Russia’s interference in the 2016 election.“

    https://www.nationalreview.com/2018/11/matthew-whittaker-jeff-sessions-replacement-excellent-choice/

    harkin (b67841)

  57. Thank you, harkin. Beldar also posted the statute in a previous thread, but some people only want to hear what the NYT tells them.

    nk (dbc370)

  58. There’s an interesting discussion of these issues by Georgetown Law prof Marty Lederman here. In particular, he notes the possible tensions between what he refers to as the “AG Succession Act,” codified in 1953 at 28 U.S.C. § 508, and the newer Vacancies Reform Act of 1998, codified at 5 U.S.C. §§ 3345 & 3346, upon which Trump relied (italics & link in original):

    The Department of Justice’s formal view is that the VRA provides the President with an alternative authority, in addition to the AG Succession Act, to designate who shall perform the AG’s functions and duties during a vacancy in the office. Thus, for example, when AG Alberto Gonzales resigned in 2007, President George W. Bush named the Assistant Attorney General for the Civil Division, Peter Keisler, to be the Acting Attorney General, when the AG Succession Order in effect at the time, issued pursuant to the AG Succession Act, would have assigned those functions to the Solicitor General, then Paul Clement.

    As far as I know, however, the “appointment” of Whitaker would be the first time in U.S. history that the President has designated as an “acting” Attorney General someone who was not then serving in an office to which he or she was appointed by and with the advice and consent of the Senate, and it’d be the first time since 1868 — i.e., since Congress enacted a specific AG Succession statute — that the “acting” AG would be anyone other than a sitting Senate-confirmed DOJ officer.

    Elsewhere, I’m seeing a ton of mis- or disinformation from people who obviously haven’t read the statute.

    When I read Andy McCarthy’s NRO piece that harkin linked in #56, in my first pass-through, I thought McCarthy was seriously arguing that Whitaker would be a good choice to be Sessions’ permanent replacement and that Trump should so nominate him. In the next-to-last paragraph, though, McCarthy appears to read (without citing it directly) 5 U.S.C. § 3345(b) the same way I did in the comments on the other thread that nk mentioned in #57 (italics mine):

    Matthew Whitaker is well credentialed and appears to be an excellent choice to assume the duties of attorney general, at least temporarily (and perhaps permanently, though under the Vacancy Act, he could not be nominated to be AG while serving as acting AG).

    I think the better formulation would be to say that upon being nominated to be the AG, Whitaker would cease being eligible to serve as Acting AG, but it amounts to almost the same thing. If Trump were to nominate Whitaker, he’d simultaneously need to name a new Acting AG to serve in the interim while the nomination was pending, or else the ubiquitous Rod Rosenstein, as Deputy AG (and, in the language of the statute, the “first assistant to the office of such officer”) would automatically assume those responsibilities.

    Beldar (fa637a)

  59. I doubt Whitaker could get 50 votes for confirmation either in this Senate or in the next one.

    My hunch is that Trump asked Don McGahn months ago what his options would be if he were to fire Sessions. McGahn told him that as Deputy AG, Rosenstein would be the default choice to be Acting AG during the interim until a new AG was confirmed by the Senate, unless Trump instead used 5 U.S.C. § 3345(a)(2) to name another Senate-confirmed DoJ official (e.g., Solicitor General Noel Francisco) or 5 U.S.C. § 3345(a)(3) to pick a GS-15-level who’d not been confirmed by the Senate but had been on the job at least 90 days. McGahn probably compiled a list of everyone who’d be eligible under either (a)(2) or (a)(3). He probably warned Trump that if he used (a)(3), he might run into problems — either constitutional ones or conflicts with 28 U.S.C. § 508 — that would be questions of first impression. He probably noted that the federal courts aren’t going to be eager to declare section 3345(a)(3) unconstitutional, nor eager to vacate all the convictions obtained by the DoJ while it was headed up by an improperly qualified Acting AG. Trump probably said, “I don’t give a sh!t about that, just tell me who on this list loves Trump the most.” And McGahn said, “Well, Sessions’ chief of staff wrote and said some stuff before Sessions appointed him that seems pretty favorable to you.” At which point Trump said, “Yeah, that’s who I’ll name, then.” But McGahn persuaded him to wait until after the mid-terms. And new WH Counsel Pat Cipollone probably reaffirmed what McGahn had already told Trump.

    Beldar (fa637a)

  60. Beldar (fa637a) — 11/8/2018 @ 9:26 pm

    I think you nailed it Beldar.

    But I haven’t heard much discussion about it being fine-and-dandy for Agent Orange to, in effect, fire Sessions and get away with this. Kellyanne’s husband doesn’t think so at any rate:

    A principal officer must be confirmed by the Senate. And that has a very significant consequence today. It means that Mr. Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal,” Conway argued in the op-ed, co-written with Neal Katyal, former acting solicitor general under former President Barack Obama.

    Tillman (61f3c8)

  61. Well before any court challenges could work their way through the federal courts, the new Congress will be seated. Whitaker doesn’t have to be confirmed by the Senate to be Acting AG. But he’s certain to be subpoenaed by Jerry Nadler and the House Judiciary Committee, and he’ll be grilled about conversations he had with Trump or any surrogates before Trump appointed him to be Acting AG. It’s unlikely that executive privilege, attorney-client privilege, or any other privilege would permit Whitaker to duck those questions.

    So unless Trump has (once again) ignored the advise of his lawyers, there probably is no express agreement, no quid pro quo, no secret order to “shut down Mueller ASAP.” Rather, I suspect they picked Whitaker from among the fairly short list of available candidates because he seemed to be the most naturally sympathetic to Trump and the most naturally skeptical of Mueller’s investigation. And I continue to believe that Mueller’s job security ultimately rests in the hands of a small number of Senate Republicans who’d defect if Mueller were fired. Any interference short of firing would likely prompt Mueller to resign; he’d probably limit his initial public comment to something along the lines of, “My continued performance as special counsel has been made impossible”; but Nadler would hand him a “friendly subpoena” and the whole story would be out before Valentines Day.

    There are ultimately too many checks and balances for Trump to get away with firing Mueller. I still don’t think it will happen.

    Beldar (fa637a)

  62. Yeah, little weasel Lindsey. What a joke he is.

    If Jeff Sessions is fired, there will be holy hell to pay.

    Well, we’re waiting, but no one is holding their breath.

    Tillman (61f3c8)

  63. Yes the ones who bought this fraudulent from the get go, flake Corker Tillis.

    Narciso (710fa2)

  64. When you’ve totes convinced a lefty, you are doing something wrong.

    Colonel Haiku (2601c0)

  65. But there are no checks and balances on Mueller, that is the point, there isn’t even an initial predicate crime, one might argue that the supposed classified info, statute was that in the Flynn. Case.

    Narciso (710fa2)

  66. “Yeah, little weasel Lindsey. What a joke he is.”

    Now, now, Mr. Tillman, Lindsay Graham is and has always been simply a weather vane for which way the political wind blows…and I guarantee you it ain’t blowing in your favor.

    ““If Jeff Sessions is fired, there will be holy hell to pay.”

    Well, we’re waiting, but no one is holding their breath.”

    Everyone in the MAGA crowd is fiddling happily on the roof in shared mourning over Lindsey Graham choosing a different side to squish toward today.

    Too bad! So sad! Guess you’ll have to lean on Romney and the Mormon crew to get your jollies for the next two years!

    Ajami (10d742)

  67. Putin couldn’t have picked a better Acting AG, and now Trump has just done another kindness for the Putin Kremlin.

    Paul Montagu (4575b4)

  68. Sorry libby case, says Romney will be stabbing in the back like he’s done for the last two years.

    Narciso (2771dd)

  69. This is sick: Clapper contends that Rump installed Whitaker so that he could gain access to all of the evidence / information that Mueller has on him. ‘Talking about “above the law” – of course that undermines the whole process.

    Tillman (61f3c8)

  70. Eickenrode like strzok conducted the interviews of libby and Rove, he lost the transcripts fancy that.

    Narciso (2771dd)

  71. Crapper lies, Tillman.

    Colonel Haiku (f2bc98)

  72. Two intelligence networks were compromised on Clapper’s watch

    Narciso (2771dd)

  73. Making this about Clapper doesn’t change the fact that this sycophant could potentially give his Dear Leader access to all of the information Mueller has. Maybe that’s the primary, short-term objective.

    Tillman (61f3c8)

  74. When federal investigators were digging into an invention-promotion company accused of fraud by customers, they sought information in 2017 from a prominent member of the company’s advisory board: Matthew Whitaker

    Yeah, he should fit right in with Rump’s other partners in crime.

    http://www.latimes.com/politics/la-na-pol-whitaker-ftc-20181109-story.html

    Tillman (61f3c8)

  75. Making this about Clapper doesn’t change the fact that this sycophant could potentially give his Dear Leader access to all of the information Mueller has.

    Does the law allow him to do that?

    nk (dbc370)

  76. nk, has this so-called President’s staff been lawful, you think?

    Tillman (61f3c8)

  77. We must know the nature of the evidence, this is what Stephen hatfill wanted to know.

    Narciso (2771dd)

  78. Weissman and at least one other member of Mueller team have been reprimanded by judges not to mentiom what they did to Arthur anderson

    Narciso (2771dd)

  79. Well, they should not do anything unlawful, that’s for sure. But my question was not entirely tendentious. Would it be illegal for Whitaker to do that? Reveal to Trump all the information Mueller has?

    nk (dbc370)

  80. nk, has this so-called President’s staff been lawful, you think?

    Tillman (61f3c8) — 11/9/2018 @ 9:40 am

    I took some time to think this over with a cigarette, in the fresh air. And my answer is, categorically:

    YES! Trump’s administration so far has been the most law-abiding since Eisenhower’s, and that only if you don’t hold Eisenhower’s VP, Richard M. Nixon, against him. If you do hold Nixon against Eisenhower, then it has been the most law-abiding since Calvin Coolidge.

    nk (dbc370)

  81. “this sycophant could potentially give his Dear Leader access to all of the information Mueller has. Maybe that’s the primary, short-term objective.”
    Tillman (61f3c8) — 11/9/2018 @ 9:05 am

    Democracy Thrives in Darkness, eh?

    After 18 months and millions of $$ spent, I guess no one is allowed access, including the people and their elected representatives.

    Munroe (c13e53)

  82. On the principal/inferior officer issue generally: I hate to disagree with the likes of Neal Katyal, George Conway, and John Yoo. But I do.

    They’re certainly right that the advice & consent function of the Senate is very, very important. It does not operate in a vacuum, however, but within the context of a set statutes, passed and not infrequently amended, by Congresses going back to the early 18th Century. The Constitution is silent on what departments or agencies should exist within the Executive Branch, and makes no mention of the POTUS’ cabinet as such. Yet every POTUS since Washington has had a cabinet, with a division of responsibilities among those officers, and Congress has formalized those structures through legislation.

    If we were talking about a permanent appointment — not “permanent” in the sense of life tenure, because cabinet officers serve at the pleasure of the POTUS, but rather “permanent” as opposed to “temporary” or “interim” — then one is obliged to get into the principal/inferior officer fight in earnest.

    But we’re not, and that is of overwhelming significance — determinative significance, I believe — on the appointments clause/advice & consent issues.

    Congress — including the chamber with advice & consent responsibility, the Senate — has indeed approved legislation which creates and specifies, for each executive department or agency, the specific administrative positions that do need Senate confirmation. By statutes relating specifically to the DoJ and its organizational chart, Congress has decided that along with the Deputy Attorney General, the Associate Attorney General, the Solicitor General, a bunch of Assistant Attorneys General for various divisions (civil rights, antitrust, etc.), the Senate must also confirm 93 U.S. Attorneys, 93 U.S. Marshals, the Inspector General of the DoJ, the Directors of the FBI, BATFE, DEA, and even the Director of the Office on Violence Against Women. Congress has chosen not to subject some other very important offices to Senate confirmation, though, including, as relevant here, the Chief of Staff to the Attorney General.

    Moreover, Congress has considered the question of temporary replacements and interim appointees, and has specifically dealt with that — redundantly, in fact, for the DoJ. Critically, Congress created and set both the limits on who could qualify for these “Acting” roles, and the time limits for which any such officials can serve in an “Acting” capacity. The time limits are designed to be short enough to prevent a POTUS from running his administration perpetually through “Acting” appointees and recess appointments, but long enough to permit the needed continuity in government, especially during transitions between presidential administrations and the concordant need for the Senate to reconsider a ton of new appointees. Congress could have set a limit of 30 days for all these “Acting” officials if it so chose, and would thereby have imposed a tighter rein on the POTUS; but the Senate can’t agree on anything, even in the best of circumstances, in a mere 30 days, so a 30-day limit would have been impracticable, and Congress has set longer ones.

    In other words, by passing these laws, Congress — including the Senate — has voluntarily agreed to this sharply limited dispensation from the “advice & consent” requirement for particular jobs in which “Acting” officials may serve for specified time periods, provided that the “Acting” officials can at least demonstrate the qualifications of either having been approved by the Senate for another job, or else having held a GS-15-level job in the same agency for at least 90 days.

    Given that, I don’t think some future court case will invalidate Whitaker’s appointment. Congress could have declined to include the part of 5 U.S.C. § 3345 upon which Trump just relied in appointing Whitaker — subdivision (a)(3), for high but not-Senate-confirmed acting officials — and thereby have prevented Trump from replacing Sessions even temporarily with anyone but a Senate-confirmed official. Today’s outraged Dems could introduce legislation in the next Congress to repeal subdivision (a)(3) for the future.

    But given the comprehensiveness with which Congress has already acted on these subjects, and the comparative brevity of the time limits and limited candidate pool (which limits the Acting officials to top-level people already at the agency for at least 90 days), I’m pretty confident no federal court is going to declare section 3345(a)(3) unconstitutional or the “Acting” officers appointed under it to have been invalidly appointed for want of Senate confirmation.

    Beldar (fa637a)

  83. *early 19th Century, I meant to write.

    Beldar (fa637a)

  84. YES! Trump’s administration so far has been the most law-abiding since Eisenhower’s

    Excellent timing there, nk:

    Donald Trump Played Central Role in Hush Payoffs to Stormy Daniels and Karen McDougal
    Federal prosecutors have gathered evidence of president’s participation in transactions that violated campaign-finance laws

    says the WSJ

    Tillman (61f3c8)

  85. Thanks for the response Beldar. So, if that’s true that the AG is at the President’s disposal that way, then I suppose there is an open door for them to undermine the law altogether. Clinton could have made Ken Starr go away using this scheme then?

    Tillman (61f3c8)

  86. No he was appointed under the independent counsel statute subject to a three judge panel.

    Narciso (29509a)

  87. @85. The Slow-Mo Massacre… history rhymes… only this time, the game is getting rigged before our eyes… bet you could make book that in the end, our Captain will beat the rap.

    But what a show!

    DCSCA (797bc0)

  88. our Captain will beat the rap.
    I hope you’re wrong about that one, DCSCA.

    I made a prediction, here on this site, almost a year ago that this disgrace would be out of office within a year. So, I’m counting on Mueller here to get the job done.

    Tillman (61f3c8)

  89. “Mr. Trump’s involvement in the payments, by itself, wouldn’t mean he is guilty of federal crimes, according to Richard Hasen, a law professor at University of California, Irvine, who specializes in election law. A criminal conviction would require proof Mr. Trump willfully skirted legal prohibitions on contributions from companies or from individuals in excess of $2,700, he said.”

    As has been noted several times before on this site, there is no there there.

    Colonel Haiku (f2bc98)

  90. Beldar, this piece discusses matters of succession, and it addresses the Federal Vacancies Reform Act that you mentioned. However, Justice Department succession is already specifically codified under law (28 U.S.C. § 508), and this statute would put either the Deputy AG or Solicitor General in the top slot. But whether the FVRA or DOJ statute is applied, it still seems to me that the ultimate controlling authority is Article II. Professor Vladek brought up the FVRA in his tepid support of the Whitaker appointment and cited the “for a limited time, and under special and temporary conditions” guardrails for temporary appointments, but there are no “special and temporary conditions” applied against Whitaker. He has all the powers of a Senate-confirmed AG for up to 210 days, and I find that troubling. It’s an end-around that takes Constitutional power from the Senate for seven months, and seven months is a lot of time for a politicized hacky crackpot like Whitaker to wreak some damage in the DOJ.

    Paul Montagu (e7d63b)

  91. One other thing, as conservatives, we should be wary of decisions where there is no historical precedent, and Whitaker’s elevation to AG falls under that unprecedented category (link).

    As far as I know, however, the “appointment” of Whitaker would be the first time in U.S. history that the President has designated as an “acting” Attorney General someone who was not then serving in an office to which he or she was appointed by and with the advice and consent of the Senate, and it’d be the first time since 1868—i.e., since Congress enacted a specific AG Succession statute—that the “acting” AG would be anyone other than a sitting Senate-confirmed DOJ officer. (In 1868, Secretary of the Interior Orville Browning served as acting AG for a few weeks while his own (ultimately unsuccessful) nomination to be AG was pending in the Senate. And in 1848, President Polk named Secretary of the Navy John Mason to serve as acting AG for a few weeks before Isaac Toucey was confirmed. Mason had himself been the (confirmed) AG just two years earlier.)

    Paul Montagu (e7d63b)

  92. @ Tillman (#86): Yes, as narciso pointed out, Starr was appointed under the now-expired independent counsel statute; in fact, he was the replacement appointee for Robert B. Fisk, Jr., the original Whitewater independent counsel, and thus he was chosen not by Clinton, but by a special panel of three judges from the D.C. Circuit (on which bench Starr had previously already served). The constitutionality of appointments under that statute had been barely upheld, over Scalia’s famous “wolf who comes dressed as a wolf” dissent, in Morrison v. Olson, which involved a different independent counsel, but which also turned on the Appointments Clause; and among the reasons it was upheld by the majority was that the independent counsel statute still permitted a POTUS, through the AG, to fire an independent counsel. Starr’s new book, “Contempt: A Memoir of the Clinton Investigation,” is a pretty good read, and discusses the decidedly mixed feelings he had about taking over from Fiske in the first place.

    @ Paul Montagu (#90): The current formal DoJ position, dating back to the end of the Bush-43 Administration (and contrary to an earlier position advanced by AG Alberto Gonzales earlier in that same Administration), is that both 28 U.S.C. § 508 and 5 U.S.C. §§ 3345 & 346 are constitutional, and that both are available to a POTUS in deciding who should be Acting Attorney General. The memo notes that although section 508 is more specific, section 3345 is more recent; that Congress was presumptively aware of section 508 when it passed section 3345 (and the legislative history actually supports that); and that since section 3345 doesn’t contain an exception for the DoJ in recognition of the existence of section 508, Congress must have intended that both statutes be available. And I think that’s correct.

    Your point is of course correct: Over the course of 210 days (7 months), an Acting Secretary or Acting AG, who holds in his hands all of the power of a Senate confirmed cabinet officer, can indeed wreck havoc. But he has even less job security than a Senate-confirmed cabinet officer, which is practically none: Trump could fire Whitaker as Acting AG tomorrow. And the length of the period, again, was deliberately set by Congress in section 3345, and they made provision in section 3346’s time even allows for two bites at nominating a new Senate-confirmed “permanent” cabinet officer per Acting officer. If that permits a great deal of play in the joints for every POTUS, it’s by Congress’ deliberate act.

    Justice Kavanaugh wrote a great dissent based on the Appointments Clause from the majority opinion of the D.C. Circuit sitting en banc in PHH Corp v. Consumer Financial Protection Board. But I nevertheless think he’d vote to uphold section 3345(a)(3) as being within Congress’ power.

    But there’s no doubt that there’s litigation risk, not least because this appears to be the first such use of section 3345(a)(3). If Trump were risk averse, as a careful steward taking care to faithfully execute the laws and minimize the chances of future DoJ activities being invalidated later, that would have been a good reason to pick either Rosenstein to be Acting AG (the result under both section 508 and section 3345(a)(1)), or else some other Senate-confirmed senior official like the Solicitor General (under section 3345(a)(2)). But Trump is not risk averse, he is a chaos magnet and indeed a chaos generator, and Whitaker’s selection will indeed be challenged in court.

    Beldar (fa637a)

  93. To this specific assertion by Mr. Montagu in #90 — to the effect that a section 3345(a)(3) appointment of a non-Senate-confirmed DoJ employee as Acting AG is “an end-around that takes Constitutional power from the Senate for seven months” — the response must be, “But it was Congress, including the Senate, which ceded that power to the POTUS.” Trump does appear to be the first POTUS to actually drive a truck through this loophole, but he didn’t create the loophole.

    Beldar (fa637a)

  94. Beldar, it was Kavanaugh’s dissent that carried the day at the Supreme Court level (one of many reasons he deserved his promotion), and it really came down to accountability, specifically that the CFPB Director did not report to anyone, not even the president. The selection of Whitaker also lacks accountability for a principal-officer-level job. That lack of accountability, i.e., no Senate confirmation, may be time-limited, but it still messes with the balance of power between two branches of government, IMO.
    The precedent that I’m concerned with is that Trump’s elevation of Whitaker can set future precedent for all other principal officers. Trump can fire Mattis tomorrow and replace him with a loyalist crackpot who served the minimum amount of time in the department to “qualify”, and on the next day do the same with SecState, firing Pompeo and putting Bolton in the job for seven months, and on down the line to EPA, HUD, etc. The next president (potentially a Democrat president) can then do same, citing the Trump Promotion Protocol. It’s just bad.
    So, what I’d like to see is the Whitaker’s installation challenged in court, the sooner the better, and if the courts rule in Trump’s favor, then Congress has a great opportunity to change the law.

    Paul Montagu (e7d63b)

  95. I see the Rosenstein, appointment as a serious conflict of interest, re the fisa warrants that underlay the investigation, getting to the bottom of that, is the whittaker’s purpose, as mueller has been allowed to abuse power, as he was party to in boston, the anthrax investigation, the witchhunt against aipac, his sabotaging of the interrogation program by proxy, same with terrorist surveillance protocols, those are just a few examples of his unfitness for any office, these are policy determinations not opinions,

    narciso (d1f714)

  96. but few will challenge this rolling star chamber, which brooks no oversight thanks to Rosenstein, they will ensnare any official, any person in any country, those from critical us allies in the gulf and the levant, that resembles similar practices a decade ago, as pointed out earlier, he coordinates with private partisans, like a certain leathery ambulance chaser,

    narciso (d1f714)

  97. Speaking of ensnared, narciso, the WSJ article on Trump’s involvement in the payments to a porn star and Playboy model means that this president committed felonies in his attempts to win this nation’s highest elective office (link).

    On Friday, the Wall Street Journal broke a story with specific details that strengthen the case against President Donald Trump for campaign finance law violations and that provide evidence that Trump and others knowingly and willfully violated federal laws, which makes these violations criminal.

    Assuming a Mueller report makes its way to Congress, Trump’s campaign finances felonies will be added to Democrat-prepared articles of impeachment.

    Paul Montagu (e7d63b)

  98. That Trump continues to circumvent several hundred years of governing norms just illustrates that he is not a conservative. In most ways he is as “progressive” as Clinton or Obama ever were. Sure he has some folks that are very conservative, the most so was Jefferson Beauregard Sessions III, but he fired that guy, and he personally is as anti-conservative as any NYC liberal is likely to be.

    Colonel Klink (Ret) (4a12e8)

  99. is there enough imagery, I learned since iran contra, when they were celebrating north Seymour and Lawrence walsh while casting ed meese and oliver north into the darkness, it’s time to check your spoons, on the way out, and I discover this isn’t a new thing, Lawrence cox’s myrmidons behaved much the same way,

    narciso (d1f714)

  100. Sigh, you miss the point entirely, the same was true with Patrick fitzgerald, who legitimately went after George ryan, but as for conrad black or scooter libby, there was more than some doubt, in his choice of target and how he proceeded,

    narciso (d1f714)

  101. Assuming a Mueller report makes its way to Congress, Trump’s campaign finances felonies will be added to Democrat-prepared articles of impeachment.

    Paul Montagu (e7d63b) — 11/9/2018 @ 4:16 pm

    Bookmarked for future mirth…

    Colonel Haiku (f2bc98)

  102. Read that WSJ article all the way through. It will not happen.

    Colonel Haiku (f2bc98)

  103. You mean like using coercion, to corrupt a religious order into breaking with their principles, or going out of business, how about quartermastering perhaps two drug cartels, letting a degenerate like kevin jenning corrupt our already failing school systems, which norms do you mean?

    narciso (d1f714)

  104. one need only compare what eric holder was never held account for, as opposed to what ed meese was put through,

    narciso (d1f714)

  105. Read that WSJ article all the way through. It will not happen.

    I gave up my WSJ subscription.

    Paul Montagu (e7d63b)

  106. Stormy Daniels and Karen McDougal are now important only to a small portion of the Manhattan liberal cocktail party circuit. Think Pauline Kael.

    nk (dbc370)

  107. well they were featured 82 times on cnn, yes you make the same point,

    narciso (d1f714)

  108. , which norms do you mean?
    Having a criminal determine who and how investigates him is not the norm.
    And invoking Obaman malfeasance won’t work. Whataboutism is a progressive ploy. For a conservative, the failure to enforce law is a failure of law enforcement, not an excuse to immunize your own side.

    kishnevi (bec396)

  109. For which offense, was was the special prosecutor ordered up?

    Narciso (9b6052)

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