Looking at Matthew Whitaker's Twitter feed -- twitter.com/MattWhitaker46 -- I would estimate that 95% of his tweets are about football. Nothing wrong with tweeting about football, but for someone appointed as acting attorney general, the nation’s chief law enforcement officer, one would hope that such an individual would be thinking and opining about more serious matters -- matters such as voter suppression, the internment of people seeking asylum, whether a president is above the law. Apparently football consumes more of his attention. He does not strike me as a serious or thoughtful thinker, but another convenient Trump lapdog, willing to do his bidding at the expense of the nation. Compare his posts with those who truly hold the law in the highest regard --people like Laurence Tribe, Joyce Alene, Harry Litman, or Chuck Rosenberg.
20
@Wiener Dog
Except that the writers DID think things through. Not flaky legal theory, contrary to your comment. You are incorrect... Rosenstein was indeed confirmed by the Senate on April 25, 2017 by a vote of 94-6. He is the appropriate person next in line to be Acting AG, barring proper Constitutional action by the president.
https://www.washingtonpost.com/world/national-security/rod-rosenstein-confirmed-as-deputy-attorney-general/2017/04/25/e59bc3a8-29dc-11e7-be51-b3fc6ff7faee_story.html
9
Please read the law--Federal Vacancies and Reform Act of 1998. Topic resolved unless that law is unconstitutional and the Courts have not ever ruled as such.
https://www.gsa.gov/governmentwide-initiatives/presidential-transition/legislative-overview/the-federal-vacancies-reform-act-of-1998
1
...However, now it appears that there is no reasonable prospect that anything Mueller does or says could result in Trump's removal and replacement by Pence.
Trump famously said "I could shoot someone on 5th Avenue and not lose any votes" .
That has now been replaced by "Trump could be caught on videotape handing American military secrets to Russia and still not have any Republican votes for impeachment".
Whatever evidence and proof of criminal acts that Mueller could come up with, it is certain that such evidence and proof could not be as powerful an indication of wrongdoing as the evidence in the public record that Bret Kavanaugh was lying in the senate hearings relating to his confirmation as a Supreme Court Justice.
Once Ford’s account included three people she said were there AND his calendar had them all at Tim Gaudette’s house on July 1, 1982, AND Ford’s description of the interior of Gaudette’s house in Rockville, MD exactly matches that of the actual house, which still exists: the only way that Kavanaugh was not lying is either: Ford somehow obtained access to his 1982 diary/calendar, or Ford has a time machine or Ford stalked Kavanaugh in 1982 and planned to do this, if and when he was nominated to the Supreme Court..."
https://seekingalpha.com/article/4216597
10
Not only it's Unconstitutional and Illegal and stinks to high heaven, but he is also a fraudster and scam master, who's company was accused of duping investors.
"World Patent Marketing was shut down by a federal court earlier this year and ordered to pay a $25 million settlement after the FTC found that it had deceived investors by promising to patent their inventions and then pocketed their money instead."
https://www.thedailybeast.com/investors-duped-by-scam-business-question-whitakers-role.
Takes a fraud and a scammer to appoint another one.
12
Times readers should be aware that Neal Katyal wrote an opinion piece in the Times last year in support of Neil Gorsuch:
https://www.nytimes.com/2017/01/31/opinion/why-liberals-should-back-neil-gorsuch.html
Of course the Senate would vote yes, but let's make them put those votes on the record for future reference.
7
So if Whitaker tries to fire Mueller or end his investigation, Mueller should just be like 'No, your authority is invalid' and straight up refuse to stop.
18
While Mr. Trump looks more and more like Mr. Putin every day, where are the Republican patriots? Is McConnell sitting on his hands because he is delirious with power? Somebody should tell him that, 1) His power will, ultimately, be worth nothing if Trump EITHER wins or loses his drive to dictatorship and, 2) None of us gets out alive so you'd better be prepared for what comes next.
14
Trump is hard at work destroying our Constitution and, along with it, our country. When will it end? When will we stop him? I fear for our country.
18
Wonder how the ‘other’ Conway will interpret the appointment? We already know - lie, obfuscate, spin. How do the two Conways even manage to talk with each other these days?
10
Wrong.
As we all know, Eric Holder and Sally Yates, among many others, were "acting" Attorneys General who did not require, nor receive, Senate confirmation.
This is just a silly partisan attack.
7
Of course it is unconstitutional or why would he do it?
Other unconstitutional things Trump has done:
• enriching himself while in office — official state functions held in his hotels and resorts
• siding with Russia over US intel agencies — “I believe Putin”
• embarrassing the US in front of the whole world — covfefe, “Puerto Rico is an island, surrounded by water, big water, huge water, not many people knew that,” and “This is the wettest hurricane from the stand point of ... (pause for 20 seconds as he searches for the right word) ... water.”
Ok, being stupid is not really unconstitutional but c’mon, Trump’s stupidity ought to be criminalized.
15
Hardly the first time someone has been named to an interim position; the only real problem is the left doesn’t like him and are having another one of their hissy-fits.
5
so is there any truth to the story that he was affiliated with a consumer patent development Corporation scam in Florida?
4
The scariest moment in all this was the moment when Trump shrieked "Who cares about the House, I have the Senate!" and his minions shrieked with him. It's a boast that Louis XIV or Charles I of England would have made about their various parliaments. His Senate will say, Like, doh.
9
When we put Orwell's Big Brother together with The Apprentice, & a delusional, deranged narcissist on an endless loop what do we get? Trumpocracy.
8
Will I see your apology printed here in the Times *IF* it turns out that neither Trump nor his "Acting" AG do anything to interfere with Mr. Muellers investigation? Or when Mr Whitaker is either confirmed by the Senate in the next session or quietly steps aside once Trump nominates someone else?
Yeah, I didn't think so.
1
Things must be a little tense around the supper table chez Conway.
6
Putin and his Russian trolls must be overjoyed by this latest turn of events. Their meager investment to disrupt the 2016 Presidential elections continues to reap unforeseen rewards. President Trump, their useful idiot, continues to run roughshod over the U.S. Federal government and explicitly, with firing the Attorney General and installing his latest BFF stooge, violate a core tenant of the Constitution: the rule of law. He CANNOT be allowed to get away with this: eviscerating the judicial independence of the Dept. of Justice, making a mockery out of the chain of command, elevating amateurs over professionals and White House moles over seasoned experts. Trump is not a king. Special thanks to Mr. Katyal and Mr. Conway for explaining in clear, unambiguous language why Trump's latest move to obstruct justice and end the Mueller probe will not work. I pray our elected officials understand the gravity of the moment.
7
Mr. Clean will do it all, he is a dishonest person like his boss.
3
Whitaker- just another member of the cabinet, also known as Trump's "basket of disposables."
4
The Senate should be 100% on this immediately.
Such clear manipulative moves that are totally unconstitutional should not be permitted.
One more crime and high misdemeanor for Donald Trump.
WHEN will this ignorant illegality stop??
8
For those of you who have argued that the President is not the Attorney General or Acting Attorney General's boss, this is why you are wrong. The DOJ is part of the Executive Branch and the President of the United States is the head of the Executive Branch, hence he is the "boss". Therefore, this article is correct. Don't take my word for it..look it up. You obviously have the internet.
https://www.usa.gov/executive-departments
https://www.usa.gov/branches-of-government
Matthew G. Whitaker is the perfect lackey for Comrade Trump's pathological ambitions. Never forget that Stephen Miller is whispering in Comrade Trump's ears . . . and is the architect of his cruel immigration agenda. Never forget that Steve Bannon is whispering in Stephen Miller's ears to guide his evil hand in blowing up "the deep state." Stephen Miller & Comrade Trump Sher the same puppet master.
As for Matthew G. Whitaker, he remains the "nobody" he has always been. He's a wannabe thug. And, like his cowardly "gang leader," Comrade Trump, he's a desperate loser.
7
Irony of ironies...co-author George T. Conway III is KellyAnn Conway's husband. You can't make this kind of thing up.
3
Caligula appointed Incitatus (his horse), as consul. The Senate did nothing. Does thus sound familiar?
16
We see that Trump is trying to do to our democracy how he operated his private business that he took into bankruptcy multiple times and was never really considered a success as a self-made person. Recall poppa Fred doling out $millions to his kid, starting at a tender age and was never really accepted by the real estate moguls in NYC. But Trump has the title of president, someone that is morally, ethically, and legally corrupt that selects lackeys, like Whittaker, to protect him from what surely is coming down the pike if Mueller is allowed to complete his investigation and House members constituting the Blue Wave take their office in January. This week's election showed Trump that the majority of the nation's voters do not like or want him; in mind and action, he is a "disabled" person that does this nation no good. If history is any guide to which we should not repeat, just recall the dictators of other countries and then compare them to Trump. Recall Germany of the 1930s as Hitler was ascending to what (and how) Trump talks and conducts himself. All look familiar? Yes, Kaytal and Conway have written persuasively and convincingly that Trump's maneuver is illegal in a constitutional sense. But if Whitaker does not remove himself from the Mueller investigation (he won't), either Congress must, or a court will order it. The former has no backbone, so an immediate court challenge seems more than likely. We can only look to ourselves to solve this crisis!
6
If this is an unconstitutional i.e. illegal appointment , any orders that Whitaker might issue can be legally disobeyed. Remember that the failure of the German legsal system to prosecute the
murders of https://en.wikipedia.org/wiki/Night_of_the_Long_Knives meant the inception of total dictatorship.
3
I remember early on, even when running in the primaries, Donald revealed his fascist and racist tendencies so many pundits denied he was a racist and inclined toward lawless fascist beliefs and actions.
Why do so many of Donald's base seem just fine with modeling America after Russia?
3
What happens if Sessions died? He is replaced by a an interim AG until a permanent replacement can be found, and confirmed. This is more noise from the BKs. Does anyone really think Trump will terminate the Mueller witch hunt as he willingly submits to written questions? You people are pathetic.
So now what?
I suggest you brush up on your Divorce law Mr. Conway.
1
Oh boo-hoo -what difference does it make? At some point the Senate will confirm somebody but not until after Whitaker fires Mueller and the whole Russian nonsense disappears.
The wannabe dictator in the White House adheres to the Constitution only when it benefits him and his agenda. He clings to the Second Amendment regardless of how many Americans are being slaughtered by high powered weapons but is ready to issue an Executive Order to eliminate the Fourteenth Amendment.
Kellyanne Conway’s husband, George Conway who is one of the authors of this article, shows more adherence to the Constitution than the man who took an oath to protect and defend it.
6
So trump's appointment is unconstitutional. Trump's reply woud be "so what."
trump doesn't care about our Constitution. He lies constantly and does whatever he wants, The Constitution be damned .
As others have said, as long as trump occupies the White House our democracy is in jeopardy. He is a wannabe dictator and will do all he can to become one. And don't expect the Senate to stop him.
I am not in favor of impeaching because of Pence becoming the POTUS. So trump must be voted out in 2020 along with the GOP now in the Senate.
Our hope, now that the House is in control of the Democrats, they will subpoena his his tax returns to show just how crooked he is.
9
Whitaker, Acting U.S. Attorney General, Was on Board of Firm That Threatened Duped Clients With 'Israeli Special Ops'
https://www.haaretz.com/us-news/trump-s-new-head-at-justice-dept-was-on-board-of-firm-that-threatened-duped-clients-1.6635504?utm_source=Push_Notification&utm_medium=web_push&utm_campaign=General#
4
AG = Another Grifter
2
Since the President (as a Separated Power himself) has the Statutory Constitutional Administrative Authority to overrule and overturn any decisions or actions by his subordinates working within the Branch he heads, he therefore cannot be in violation of the law as a matter of language.
(That is, unless language is no longer tethered to the meanings of the words that comprise it.)
There is simply no "actus reus" (aka criminal act) in the execution of one's legally entitled option to act.
Mr. Katyal and Mr. Conway III knows this which is why their entire argument here is comprised of escapist word-associations, corrupted syllogisms and fractured enthymemes.
Gentlemen, you are both invited on my now 21 year long nationally syndicated show (reaching 800 towns and cities across 200 radio station broadcasts) to see if your positions can sustain Socratic challenge.
I'll understand if you can't. After all, there would only be the two of you against all of me. LOL
PS - Mr. Conway, your wife Kellyanne has been on my program a bunch of times, so she'll be able to give you some tips in preparation. LOL!!
"The Alan Nathan Show"
@AlanNathan
www.alannathan.com
www.mainstreetradionetwork.com
OMG! Wilson Fisk is the Attorney General?
Um, Senator Graham...time for your thoughts on whether there will indeed be "hell to pay" if he fires Mueller. What's that? Speak up, please, you're mumbling....you say you've changed your mind?
6
Sweet Jesus, I never thought I would see the day when I would have to regard Clarence Thomas as a guardian of the Constitution. Hell just froze over.
3
If a Supreme Court staffed by a majority of strict constructionist judges is unablde to understand the plain text of the US Constitution, then we are in REAL trouble.
" ... Justice Thomas’s opinion in the N.L.R.B. case reminds us, the Constitution’s framers “had lived under a form of government that permitted arbitrary governmental acts to go unchecked.” "
Trump's theory of executive powers was last espoused in the English-speaking world by the Stuart monarchy. The cause of the American Revolution was that George III refused to accord to the American colonists the rights their ancestors enjoyed as freeborn Englishmen after 1688.
What is really disgusting in this mess is that the Congress has abdicated its duty to hold an arrogant and arbitrary President in check. In particular, Mitch McConnell's Senate is hell bent on selling its birthright for a mess of potage in the form of tax cuts for the rich and pro-life judges.
The people have already fired the GOP majority in the House for dereliction of duty. Maybe the Senate will wake up before the US becomes a banana republic governed by a swaggering bully.
4
"Trump’s Appointment of the Acting Attorney General is Unconstitutional"
Actually:
Trump’s Appointment of the Acting Attorney General is Flagrantly Unconstitutional
1
Why should we be surprised since Trump does not care one bit about the Constitution he only cares about himself. He is a little boy trying to act like a grown up. He probably has never read the Constitution. When will the Republicans put some controls on this evil man rather than allowing to trample the Constitution?
6
If only those who directly report to the president need Senate confirmation (paragraph 3) why do the deputy attorney general and the solicitor general need confirmation (paragraph 9)?
The Advice and Consent of the Senate portion of Article II Section 2 does not contain the phrase, "Principal officer." It states:
Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The pathetic part here is that of course the senate will confirm him, because they are all scared to defy him.
5
Here's the thing though: everybody talks tough on TV to get into Trump's circle of cronies, but when it comes time for Whitaker to pull the trigger on Trump's madness, will he actually do it? I'm thinking the man is probably a shade smarter than that. He's been playing mind games with Trump in order to get in a place of power--like many do. Sessions, bless his icy little heart, was Trump's best bet in moving Trump's agenda forward. Sessions didn't realize that Trump is not about immigration policy, Trump is about Trump, and if you aren't doing as Trump thinks then you're no good to him. PEOPLE, it never crossed Trump's mind whether Whitaker was suited to be acting AG, all that echoes in Trump's skull is what he hears on TV and he liked what he heard from Whitaker who is now is the worst possible spot of trying to hide from Trump's hourly calls asking if he's fired Mueller yet. LOL
5
Who has the ability, willingness and funds to challenge this appointment?
3
What he said on all the cable networks, that alone s/b absolutely disqualifying.
Just tell us everything we need to know, in case we didn't know before, right!
Ludicrous, preposterous, laughable if we can still laugh.
3
What a surprise. Trump did not know enough about the process of replacing Sessions to do it properly. Or, more likely, if he was advised he could not do it, he did it anyway. And also not a surprise that Whitaker was evidently not well-vetted. His association with a company that defrauded people are easy to find. His various statements about the Mueller investigation should require Whitaker’s recusal from overseeing it. And his peculiar legal views and murky work associations should bar him from any Justice Department job. Once again, Trump has foisted upon the nation an unqualified and possibly corrupt government official. But then, look who is doing the appointing.
10
Use your brains people. The link in this article purporting to send you to the actual text of the Constitution just takes you to another website,offering one interpretation of it.
Read the source for yourself and think critically.
From the actual Constitution: "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."
This separate paragraph in section 2 of Article II empowers the president to appoint *temporary* offices while the Senate is recessed. The senate is currently recessed and was when Trump made the appointment.
It really seems like it IS constitutional. I am surprised this article is coming from a pair of lawyers -- this took me five minutes to research.
4
Trump will go down in history as the greatest threat to our Constitutional Democracy. Russia can have him.
6
This is a great relief. (But who will tell Mr. Trump this?)
1
you think off all the lawyers in the country who might be AG, and this is who Trump picks? this guy's only qualification was as a cable news mouthpiece for Trump's mendacity which means Trump saw him on TV, the limits of his world.
6
"Trump Says ‘I Don’t Know Matt Whitaker,’ the Acting Attorney General He Chose."
Whitaker has been a Trump surrogate on CNN for two years. Trump watches CNN every day. You bet the big liar knows Whitaker.
As Mr. Tribe notes, Whitaker is unqualified within the narrow confines of the law. He is also unethically unqualified. For instance, he materially participated in a fraudulent company that was found guilty of stealing tens of millions. Whitaker's mental facilities are sorely lacking. For example, Whitaker tells us Trump's finances are irrelevant to Mr. Mueller's investigation. That is silly. Trump's financial corruption has always been a big fat Russia blackmail target. Finally, Whitaker is a rabid partisan hack. Clearly he would not preserve the traditional nonpartisan independence of the DOJ and the FBI.
7
So, Whitaker should be removed immediately with Rod Rosenstein as acting Attorney General and continue to maintain authority over the Mueller investigation. I do not believe Trump has complete Constitutional authority to put who he wants in his Cabinet--- if he were abiding by the Constitution, following ethical and legal constraints of his position and acting in the best interests of the country & citizens. This is not the case. Trump chose his Attorney General and Sessions was confirmed. While no personal fan of Sessions and policies-- he was doing the job Trump hired him to do. Trump's incompetence, inability & refusal to wrap his head around the legal constraints of Sessions' position and a required recusal---is evidence of Trump's dangerous, emotional, unstable need for control, power. Trump purposely & viciously engaged in emotional, verbal abuse and a personal vendetta against Sessions because Trump can't further his own illegal, unconstitutional agenda surrounding the Mueller investigation--which is Obstruction of Justice. Besides general emotional,verbal abuse -and harassment- This was a public, verbal, emotional disordered display of Abuse of Power. I don't believe the Constitution allows this interpretation. If not checked here, it sends the message to all employers, the same abuse and harassment of employees in the workplace is acceptable. This is already a psychological public health issue not addressed --just as important as sexual harassment.
3
(1) Remember Peter Strzok and not being unbiased - Let go by Muller for his trump bashing texts; excoriated in a hearing for his trump bashing texts; fired for his trump bashing texts.
(2) So why doesn't the same need for not being biased apply to whitaker? Oh, right. Whitaker has the right kind of bias.
(3) Shouldn't whitaker's own words lead to his recusal?
(4) About the unconstitutionality of whitaker's appointment - shouldn't whitaker as the nation's top lawyer know this.
(5) This all comes to a head when whitaker tries to assert his authority over Muller. Muller challenges whitaker's authority to do so and it's off to the courts.
4
Bravo, George. Perhaps the most important column of the Trump era. Now, see what you can do about Kellyanne, please.
7
A badly behaved child will continue to behave badly until s/he knows that someone will not allow it.
4
Thank you Mr. Conway for speaking out on how our President's latest appointment is unlawful. Your thoughtfulness and courage reminds me that not all Republicans are either spineless, opportunistic, racist or uneducated. Not only did you inform me, you gave me hope.
2
I doubt that there is anyone in the Trump administration who has ever read the constitution, so why assume they abide by it?
1
Hello, republicans, anyone home? Why are you standing by allowing trump to commit illegal acts? Why are you not demanding that Rosenstein be named acting Attorney General?
After all Rosenstein has been acting Attorney General and done nothing to bring shame to the Office. Whitaker has already brought shame to himself for helping to work a scam through his last company. Hello, hello, is any republican home at Congress?
Shame on every republican who stands silently while trump becomes a dictator.
6
So Mr Katyal and Mr Conway, what is the recommendation?
2
What more must trump do to prove his guilt to his followers? His opposition to any investigation of him, his family, or anything Russia says guilty louder than mere words could. Now with Whitaker, and backed by Kavenaugh, he has another ace in the hole.
1
nd to top all of this off Whitaker seems to be another shady character just like Trump.
1
So ... is ANYONE doing ANYTHING about this miscarriage? Or are we just going to complain and do nothing, as usual?
4
Very astute, gentlemen. But how do you stop the president from doing unlawful and unconstitutional things?
1
Whittaker looks like the villain from Marvell's Daredevil.
2
"[Whitaker] was confirmed as a federal prosecutor in Iowa, in 2004, but Mr. Trump can’t cut and paste that old, lapsed confirmation to today."
Why not? Where is it written that Senate confirmations have an expiry date? Please give us an authority, fellows (and one that explicitly uses the words, "old" and "lapsed").
@teamco does not seem to realize that the GOP Senate just had a great shot in the arm to keep giving Trump everything he wanted as Ted Cruz was a dead dog until he kissed trump's rear in public. That, ladies and gentlemen sealed the deal, "Thou Shalt do ONLY what Donald Trump wants if you want to stay a GOP Senator." Like Nancy Pelosi's total preoccupation with being Speaker at any cost, so to is it with all the GOP senators. Heck that is the way that it is with most politicians. It just goes wit the territory, as long as they can succeed themselves for an unlimited number of times.
And that is the truth.
Anyone with a spine would ignore this buffoon. Whitaker is an unlawful appointment. There is no lawful reason why anyone at the Justice Department should abide by any of his orders or directives . And I am absolutely positive that Mr Mueller and Deputy Attorney Rosenstein will politely ignore Whitaker. Rosenstein was sworn in as the 37th Deputy Attorney General of the United States on April 26, 2017, by Attorney General Jeff Sessions.
1
Seems everything he does and says is unconstitutional. He's trying to run our country as if it were his personal business and we all know how that went. He ruined the republican party, but even more dangerous he is destroying our country. Now an overseas trip is coming up and a possible meeting with Putin. He should never, never be permitted to meet with Putin without a chaperone. All children need a chaperone in a dangerous situation and we know that Putin can outsmart "t" in a heartbeat.
4
Unfortunately, all the legal wrangling and confirmation processes move at a snail's pace, and the damage will be done quickly, ruthlessly, and absolutely by our paranoid dictator and his thugs, while Congress snoozes over the next eight weeks. Alas, thus was beshredded the Constitution.
2
The authors pretty much says it all. Wouldn't it be nice to get a genuine non-partisan opinion on ANYTHING just ONCE.
Neal K. Katyal (@neal_katyal) was an acting solicitor general under President Barack Obama and is a lawyer at Hogan Lovells in Washington. George T. Conway III (@gtconway3d) is a litigator at Wachtell, Lipton, Rosen & Katz in New York.
So, what is the protocol for removing an illegal attorney general from office? Who acts? Rosenstein? Mueller? Justice department employees? Congress? Supreme court? Citizens? Who has standing to fix this?
1
How odd that the dems NOW care about the Constitution that they have been trying to rip apart for years.
By the way...if you actually READ that section, it says nothing about Attorney General, it says Ambassadors, public ministers and consuls, and judges of the supreme court...so of course the dems have no clue what they're even talking about.
Trump will move decisively to neuter Meuller's investigation before the new House is sworn in.
Right conclusion for the wrong reason, because Congress has enacted statutes to govern this situation. 28 USC sec. 508 designates the Deputy AG (currently Rosenstein) as the first assistant to the AG and says that the Deputy "may" exercise the AG's powers. 5 USC sec 3345 states more affirmatively that the first assistant to an executive officer (which, as just noted, is the Deputy AG in the DOJ) "shall" perform the officer's functions in case of a vacancy, except that the President may designate someone else who either (1) already occupies an executive position with the Senate's approval, or (2) served at least 90 days in the agency during the preceding 365 days. (Query whether (2) is constitutional because it would allow someone not confirmed by the Senate to occupy a principal executive office in violation of Art. 2, Sec. 2, Cl. 2.) In any event, Whittaker satisfies neither (1) nor (2) and therefore cannot legally serve as acting AG.
Because Whittaker is not serving legally, his actions as the purported acting AG will not be shielded by prosecutorial immunity. Consequently, if he tries to derail Mueller in a manner that rises to obstruction of justice, he could be prosecuted for that crime. The statute of limitations for obstruction is 5 years, which means Whittaker will be in jeopardy if the Democrats capture the Presidency in 2010.
1
As Donald Sutherland said as his character 'X' in the movie JFK, ---'coup d'etat'!
Are we a nation of sheep or a nation of laws?
It really isnt more complicated than that!
1
Just read the news about the patent scam Whitaker helped run. Investigated by the FTC which shut down the crooks. Since FTC investigations are The Deep State, it figures that Donald wants him on his Team. When a customer threatened to lodge a complaint, Whitaker called him a 'criminal' for making the threat and threatened the customer. Once he fires Mueller he'll turn on the FTC in revenge.
I must say this new Roy Cohn is much taller & fatter than the last one.
1
Trump needed an enforcer for his Nationalist policies and he found one who also have a fraud filled past, who probably cannot get a top security clearance either. Oh wait but they could maneuver one they did it for his Likud son in law Jared, didn't they?
2
The fundamental errors in this article raise serious questions about the editorial integrity and competence of the New York Times: The thesis of the piece makes the false claim that the Whitaker appointment required the advice and consent of the Senate -- which was actually in recess when the appointment was made -- because Whitaker is a "principal officer." But neither the Constitution, nor the section cited state any such requirement during recess, nor do they differentiate a "principal officer" in any such manner. On the contrary, the Article and Section the authors cite specifically gives the president the "power to fill up all vacancies that may happen during the recess of the Senate...." (Article II, Section 2) While the authors are entitled to their own opinion, they are not entitled to their own facts, nor are they entitled to play fast and loose with the text of the Constitution, as they have done in this sorry piece of legerdemain.
2
Where has the actual deputy AG Mr. Rosenstein disappeared? Has he been fired, too? Or just demoted?
This country has got to come to a full STOP! I say this with the authority and experience of a nationalized citizen who, a long time ago abandoned her country because it was in the grip of a dictatorship.
Mr. Trump has violated the Constitution putting all law enforcement of the United States in the hands of an individual placed there simply to do his bidding.
This in Spanish is called an “auto-golpe,” a coup he staged to benefit himself.
With a submissive Congress and the Judiciary now in his hands, this chief executive now has eliminated the separation of powers.
Wake up, America!
4
Where are our New York State Senators in Washington DC who should be bringing this atrocity of appointment up front and screaming about it ?
2
Oh Mitch, where art thou?
Mr. Whitaker appears to be entirely corrupt, and most Republicans in office seem comfortable with supporting this corruption.
I've been worried that we who wish to put the brakes on Trump's wide-ranging greed, lies, cruelty, and downright illegal profiteering weren't paying attention to this all too likely development in the lame duck period. Trump has acted ahead of schedule, which makes clear what he regards as supremely urgent: protecting himself.
Then there's his obvious willingness to collude with several foreign dictators (consider his and Kushner's early private meetings with MBS that started that train, as well as Putin and Kim Jong Un, along with many others).
Don't forget Whitaker's involvement with the Florida patent scam "Acting Attorney General Sat on Board of Company Accused of Bilking Customers": https://www.nytimes.com/2018/11/08/us/politics/whitaker-trump-attorney-general.html
Whitaker's willingness to be bagman for Trump is beyond disgusting. It is dangerous. Trump is no patriot, he's a cowardly bully who wants absolute power. He's always been that way, and that's how he's succeeded. Gross!
4
To the authors of this Opinion - thank you. This points out what is right and wrong.
Not to follow our country's Constitution, is no option. No one is above the law. And, that includes whether it is Mr. Trump, or any one else in Office of the POTUS.
Why did Mr. Sessions resign, or leave Office?
If the appointment of Mr. Whitaker is unconstitutional, that should be respected.
The Deputy AG should be allowed to have oversight of the Mueller investigations, until a new AG is confirmed by the Senate. In the meantime, Congress has a responsibility to insure the continuity of the Mueller investigation.
3
More than likely Mr Whitaker is not the AG, as he is not legally appointed as principal of the government, under the constitution of the US.
Merely acting as AG does not make him one. And even though the president stated so, does not necessarily make it so.
The constitution and its principles, rely on the rule of law and actions that are lawful.
Unlawful actions are thereby invalid, and subject to review by the courts.
The US Supreme Court must way in on the so called appointment of Mr Whitaker as AG.
2
The constitution has become as vague as the bible. One can interpret any and all things depending on their point of view. Any lawyer can make any claim depending on what it is they want to prove. Its like the Bible that has a verse to explain any behavior one chooses.
1
If the appointments argument being made is correct, I don't see how the appt of Rosenstein or Francisco would be Constitutional. They were both confirmed by the Senate but NOT for the AG job. Senate confirmation is job-specific.
I wonder how many times Mr. Katyal has praised a Clarence Thomas opinion. My guess is he generally loathes Thomas opinions. Moreover, would Mr. Katyal take the same positions on the appointments clause if the one making the temporary appointment was his old boss, Pres. Obama? Somehow, I doubt it.
In any case, a 20-year old statue exists that specifies how temporary appointments are to be made, who qualifies, and for how long they can serve before a Senate-confirmed replacement is put into place. Mr. Katyal may be right, but it's presumptuous to say the statute Trump is relying on is unconstitutional until the Supreme Court says so.
2
Correct me if I'm wrong, but the Senate is Recess isn't it? If it is then Article II, Section 2, Clause 3 applies and that provides,
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
2
Article calls Vacancy Reform Act a technicality. Reliance on a statute that Congress passed under Clinton to address the issue of a cabinet-head vacancy is hardly a technicality.
Why does anyone think PT will be unable to have his way with the Republican Senate majority? Just look at the wreckage he left of Senators Corker and Flake.
One can hear him now: "They say, now, that we may need to have a Senate hearing even, though my lawyers say we don't really "need" to have one. But why waste time going to court on the question. Fine. We'll have a hearing. Let's get on with it. He's a fine man and lawyer just like Justice Kavanaugh, who actually needed a hearing, where he passed with flying colors. So will AAG Whitaker."
Was the president warned of this potential invalidation by his counsel?
In my mind, I cannot help but see Mr Session’s termination as being directed by the President in regard to the Mueller investigation.
Wouldn’t that be Trump’s second instance of obstruction?
He does appear to be desperate to risk anything to stop or invalidate this investigation.
6
An informative article on the constitution is nice, but what is actually needed here is enforcement.
Why is nobody suing Whitaker and or Trump?
This would definitively address the big question: legal or not?
3
As a liberal who supports and respects Robert Mueller, I am dismayed at the careless errors and misdirection of this article: The thesis of the piece relies on an accurate reading of the Constitution and especially the text of Article II, Section 2 which it specifically cites. The text cited makes absolutely no reference whatever to the need for Senate confirmation of "principal officers" during recess, as the authors erroneously imply. On the contrary, the actual text clearly confers on the president "the power to fill up all vacancies that may happen during the recess of the Senate...." (Article II, Section 2, Clause 3.) Therefore the appointment of Matthew Whitaker is clearly constitutional. The question of his need to recuse himself because of prior statements, however, is a different matter entirely.
2
The Senate is not in recess right now as far as I'm aware; that clause also states that the appointment would only last for a session and would expire. So yeah, if the Senate is in recess, he could do an interim appointment as "acting attorney general". It's clearly intended as a stopgap in the event of a death or something.
He can't just do it whenever, otherwise he could just churn through a succession of appointments without ever having Senate input.
4
@John Cahill
The senate is not in recess, and this isn't a recess appointment. Most of the senators are slacking now on our dime even though technically Senate is still in session. Here is a link to current schedule:
https://www.senate.gov/committees/hearings_meetings.htm
I'm pretty sure that esteemed authors and constitutional lawyers Neal Katyal and George Conway are smart enough to research this simple aspect of the appointment.
I sincerely hope that this is true, Mr. Katyal and Conway III, "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. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid."
Apparently this means that Congress and OUR Justice Department underlings can ignore this totally corrupt man and continue to do the work of WE THE PEOPLE to stop he, The Con Don and their Robber Baron brethren from further destroying OUR United States of America, robbing us blind and helping Putin/Netanyahu start WW3.
3
Maybe the authors can clear something up.
Is there a constitutional requirement that the attorney general or even a supreme court justice is required to be an attorney?
This answer will shed light on the commentary/opinion of 2 lawyers!
1
It seems to me that there are two problems here. The first is that the president is running roughshod over the laws and traditions of governance. In this case, he could delay appointing a permanent attorney general and allow the temporary attorney general to remain in place long enough to derail the Muller investigation.
The Muller investigation is the second problem, but there is a solution. Since the House has the authority to investigate the president's actions, if Muller is fired or faces significant opposition from Whitaker, the house judicial committee could hire him immediately. He would keep doing exactly what he is doing now, only under new management.
2
I am very confused by this. If the appointment of Whitaker is invalid, and anything he does in this position is invalid, who will ensure the rule-of-law is carried out in regard to anything he does? If Whitaker does something invalid, who orders him to 'undo' it and what law enforcement agency gets ordered to stop him?
6
If the fourth estate is smart enough to realize they face an existential crisis, they will put this argument front and center. If they're not (which is my bet), they will continue to value the appearance of objectivity over the truth and ignore it.
For the president to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document.
Didn't anyone pay any attention to what this man said and/or greatly implied during the debates; that if there is a law or rule that I can find a way to exploit for my benefit, I'm going to do so.
He also said that things, we had been reared to believe in our Constitution, can be changed.
Most often things were changed or modified by an amendment, but with Trump, I guess he can just raise his hand and say, 'let it be written, let it done'.
Shortly after Trump was 'elected', there was someone who said that as president of the US, what he says, is Godlike.
That's was a profound statement to say with anyone, but with someone like Trump, it was/is dangerous.
5
Let's not forget that the state of New York can go after whomever it wants, and Whitaker would not dare step in to block a referral of same to state prosecution. Doing so could potentially jeopardize his future legal career. Participating in a cover-up could lead to disbarment.
3
None of this matters unless the Republicans in Congress suddenly develop patriotism and backbone. So far, they've chosen fealty to the Trump Crime Family over their oaths to defend the Constitution and the rule of law.
Until the Republicans in Congress come to believe that fealty to Trump threatens their reelections, no Republican oversight of the Trump Administration will happen. We need to keep voting straight Blue and need to keep the pressure on our Republican Congress creatures until they see their enabling of Trump as a threat to their self interest.
5
Thank you for this crystal clear, very eloquent article.
The Trump machine, it seems, did quite a lot of planning to get this ultimately simplistic takeover in place. Since of course Trump has surrounded himself at the White House with anti-social thugs, nobody over there - least of all, Whitaker himself - has any qualms about breaking the law. Trump himself and his corrupt family are in so deep that, like any common criminal, they commit more and more crimes in order to try to stay out of jail. But what they're really doing is ensuring that the list of individuals going to jail on their account will keep growing, as will the length of their own prison sentences. Trump waves the pardon wand under everyone's nose periodically, and maybe they all buy it. But I'm confident that the resistance has proven its strength - the country is on board. Public outcry - with a lot of help from the new, Democratic Congress - will win the day. The next two months will be very scary, but once the check on Trump's power is installed in January, this wanna-be dictatorship is going to crumble into little pieces.
7
Does anyone really believe that Trump and his minions care about the Constitution? Absolutely not. Let's remind ourselves that Trump is a corrupt realtor from NY, NY who looks to get around the law, not respect them. What we have in Trump is a man who will constantly create one constitutional crisis after another knowing that the Republican senators and congress are beholden to him and will not object no matter what the transgression just like the people who elected Trump.
7
Whatever the impact this will have, Republicans in the House and the Senate are fretting, grinding their teeth but keeping their mouths shut in terms of commenting."
Crickets seems to be the strategy when deciding whether they have adherence to the country or to the godfather in chief.
If they continue with this approach, the House will not be the only thing they will lose.
If results of the Mueller investigation is not allow to do its work completely then yes it is time for all us to act and go to the streets.
6
Will there be GOP Senators, who will challenge the President's clear violation of our Constitution? For the past two years, GOP Senators have enabled Trump at every step. Will they completely disregard their obligation to their constituencies by allowing Matthew Whitaker to become that AG? This would be despite evidence that he has used his past federal appointment to further the interest of a fraudulent business?
Justice is suppose to be blind. This man has made his biases for the Trump administration, abundantly clear. Permitting Whitaker to be the AG would be a great miscarriage of justice. We cannot place the "fox in charge of the hen house".
4
This ISNT about Mueller. Trump has long been home free there.
This is about bringing the Clinton email caper perps to justice. Sessions’ failure to do that was an inexplicable dereliction of duty, leaving intolerable precedents to stand. All Americans agree this is a crisis.
Moreover, all Whitman has to do is get out of the way so “reasonable prosecutors” can do their sworn duty.
@rex reese
Ok, just to humor your delusions can you just clear something up about "bringing the Clinton email perps to justice"?
1. According to Comey's testimony to congress, the FBI had no plans to investigate or prosecute anyone who actually wrote, sent or received (other than Clinton, who never wrote but only received these emails) any of the "classified" emails attributed to the email "scandal".
2. No one who wrote, sent or received these emails have ever received ANY legal or administrative punishments for doing so, including Clinton.
3. To this day the State department denies that ANY of the emails that Comey cited (none of which had ANY "classified" markings at all) were considered classified by State... remember, Comey stated that these were "classified" emails because OTHER departments considered the subjects of the emails to be classified (ie- Dept of Defense considered an email discussing a public magazine article about drones to be considered classified). Comey also testified that ALL of these emails were "conversational" and did not contain any embedded classified documents nor portions of classified documents.
4. The ONLY two emails with any "classified" markings were two that the State Dept. stated clearly were declassified emails that were improperly stripped of their markings, and were completely appropriate for anyone (including Clinton) to have received.
So, who exactly are these "perps" that you want the Justice dept. to "bring to justice"?
The distinguished authors of the opinion piece neglect to mention a key word that destroys their thesis: "acting." Neither the Constitution, statutes nor common sense requires Senate confirmation of temporary appointments to any position whatsoever--no matter to whom the bureaucrat in question reports...or doesn't.
1
It's ironic that Mr. Conway is married to the worst enabler in the Trump Administration. Although he knows the laws in this country, he cannot convince his wife to tell the truth or school her boss.
Of course, he is not willing to uphold the law, or care about anything but his own self interest, I get it.
Yes, Whitaker is acting attorney general. A temporary position but Sally Yates, as a previous commenter pointed out, was a Senate confirmed respectable and impartial public servant.
3
The column is particularly apt as evidence emerges that Whitaker was paid as an enforcer to intimidate fraud victims who had been bilked by a company that was fined $26 million for its illicit business practices.
3
The temporary appointment is not unconstitutional. The situation is expressly authorized by a relatively recent statute. 5 USC, Sec 3345-46. He's limited to seven months.
This is a great op ed piece but what nobody seems to be answering the question too is: what is the next step?
Who confronts Trump to say this may be illegal hiring Whittaker?
Is the Senate?
Is it a lawsuit?
Is it the House?
Is it the DOJ itself?
no one on any of the News Channels seems to ask this question?
Does anyone have an answer about the next step?
And how long will it take?
And will Whittaker have power until he's ousted or the situation is corrected? And if so, how much damage can he do and can it be undone?
6
Wouldn’t it be ironic if Justice Thomas stepped up and did the right thing and ordered this appointment to be nullified? If he did he would assure himself a better place in history.
2
This move by Trump is clearly unconstitutional, and an egregious abuse of executive power. (I would say that if he were a Democrat, and Independent or a purple people eater.) Which is why there were thousands of people marching in the streets last night for the ‘NO ONE IS ABOVE THE LAW,’ protest. I was amongst them. This cannot stand. Period. Full stop.
5
Is trump trying to stop the investigation or is he just plain dumb. If his appointment of Whitaker is unconstitutional then why did he do it. Doesn't trump have legal advisers. I am continuing to wonder if trump has the mentality to serve as POTUS
2
This is just the logical conclusion to another republican debacle laden administration.
2
Remember that Comey passed his extemporaneous memo to a friend who then released it to the media. Remember the New York Times published the Pentagon Papers. Remember the Washington Post brought us Watergate.
The public will see the Mueller investigation report. The truth will be known no matter what Whitaker or Trump try to do to stop it.
Remember the media is the friend of the people.
6
I didn’t hear these two highly partisan, liberal lawyers raising any objection to Dana J. Boente’s appointment as interim attorney general following Sally Yates’ firing and Jeff’s Sessions appointment. Interesting.
And I didn’t hear Boente loudly arguing that the whole Russia probe was fake, that it oughta be shut down, or that only Christian judges should get on the bench.
Why? Did you?
The position of Attorney General needs to become an elected one.
Let the people decide who shall keep the president in check.
1
I keep reading ridiculous statements that mirror Big Don’s outrageously misleading comments that their was no collusion so therefore the investigation is a witch hunt. In effect this is like the bank robber saying that sure I was seen casing the bank and sure my son was seen meeting secretly with the bank manager but you haven’t found the loot yet which I have stashed away. You haven’t found the proof or haven’t announced it yet, so I didn’t rob the bank? There was no crime here.
3
The President must make a correction and appoint the current
Assistant AG Rod Rosenstein AG. And my question is how
President Trump can be forced to comply with the US Constitution.
3
Since when does a person under investigation get to choose who is investigating him (and family, businesses, cronies, and other people of interest)?
3
I have to wonder who is the architect behind all this legal stuff the president pretends to initiate. Clearly, he is not capable of interpreting the Constitution any more than the gang at the local coffee shop on Saturday morning. Who's the guru that's keeping trump look like he knows something?
3
Constitution? What constitution? The only part of the constitution the President has ever heard about is the Second Amendment. Why should he care about the rest? The GOP did let him know that there is nothing important in it, so he can save himself reading it.
3
So, now what? To which court do we go to stop this appointment?
1
Why does the left keep insisting on rational arguments. As if Clarence Thomas, caught in a logical contradiction is simply going to confess, 'woops, ya got me.'
Yes, the appointment without Senate consent is unconstitutional. But since neither the judiciary or legislative branches are willing or able to do anything - it doesn't matter.
2
The only reason he was appointed is to review the documents and report to Pres. Trump exactly what Mueller has. My bet is he will not be there come Jan 1.
2
I cannot help but be reminded of Allen Drury's 1959 novel, "Advise and Consent", same topic.. Otto Preminger made it into a gripping movie, same name. I don't for a second believe that Trump read this book or saw the movie, I recognize that he is cast in the same mould as the president in this book/movie..power corrupts and - you know - 'absolutely'.
Money - the root, (and tree and all the bad apples that drop nearby), of all evil. I don't think the mould has been broken.....it's already occupied by the next ambitious candidate. Take your pick... I cannot bear to look.
2
Could be right.
But on side note, shouldn't Rosenstein also recuse himself. The NY Times reported that he offered to wear a wire with the president, etc. Whether true or false, it creates "an appearance" of bias or animus.
Once that article came out Rosenstein was required at a minimum to get an ethics opinion.
The whole thing is a mess.
1
Trump does not know what advise and consent means. A Senate goose stepping to the roar of Trump insures it will not be inforced.
3
If this is the situation why hasn't someone challenged his appointment in a court of law? Trump doesn't care about the Constitution. I hope the Dems go after him and Mueller submits the full Report to a Grand Jury...which Trump cannot touch.
1
The question now is: what are they going to do about it?
Two weeks ago Mueller announced he would release report on Russian Investigation AFTER the midterm election. It’s done, over. Is anyone seriously worried Whittaker is going to change this?
Technically speaking, these auhors may have a valid point. But practically speaking they don't.
The Senate under McConnell's leadership is even more corrupt than Trump, as if that was even humanly possible. The actions of the Senate including the Merrick Garland denial, the attempted repeal of the ACA and the approvals of the tax plan and Kavanaugh, are the actions of a group of men using the smokescreen of an insane President to enrich themselves and their wealthy donors at the expense of everyone else.
We just witnessed the mid-terms where GOP "moderates" (whatever that means) were replaced with Trump sycophants, thereby making the Senate even more corrupt.
So practically speaking, just what would you expect them to do with a tool like Whitaker? Deny his appointment? Would we get to retch our way through another Lindsey Graham prime time diatribe? Would we have to listen to Whitaker, prompted and coached by the White House shriek about the unfairness of it all?
Give me a break. I'm hoping there are better ideas than this for protecting Mueller.
3
The suspect has told the investigators more than once where the bodies and the knives are buried when he "ordered" them not to follow the money.
So is Whitaker illegitimate until proven legitimate or legitimate until proven illegitimate? Could Mueller simply ignore any orders given by Whitaker because he doesn't recognize his authority as legitimate?
1
So who takes Trump to Court? Who has standing? In other words, is there anyone or anybody that can challenge this appointment?
2
We have in Mueller, a man who loves his country. In Trump, a man who loves only himself.
I'm rooting for Mueller.
3
If this appointment of Whittaker is unconstitutional, as some legal scholars have said, what can be done IMMEDIATELY about it?
1
There are only two ways how Trump and his ilk could let this happen:
1) They didn't know
2) They didn't care
I don't know what's the more sobering thought...
3
I can’t believe the media isn’t reporting on Mr. Whitaker’s involvement in the Miami scam company World Patent Market and the threats he made to individuals who complained about this scam before the government shut it down. How is it even possible that someone involved in something like that could be the AG of the United States? I just give up.
4
The President does not need Senate advice and consent to appoint an acting agency head. Get you facts straight.
A couple of other points that are being misrepresented.
1. Trump has repeatedly said he WILL NOT fire Mueller. So, why is that still a story line for the liberal MSM?
2. There’s not a single legal reason why Whitaker should consider recusing himself from the Russia investigation. Rosenstein is the one who should have recused himself. Look at the facts.
3. Mueller’s investigation should have had specific directives from the start. Not “go out and dig until you find something”.
4. Mueller’s final report is going to be a disappointment for a lot on the Left.
Birds of a feather flock together - until the cat comes.
Wrong. This is partisan hogwash.
There is no law or constitutional precept that requires the President to nominate an AG in a specified amount of time.
So... how do we move forward? How do we get rid of an illegal attorney general? Who acts?
2
My favorite moment (so far) on this was seeing Steve ‘Acie’ Ducey on Fox and Friends ask Napolitano if he was saying that Whitaker wasn’t qualified, to which Napolitano replied that Whitaker wasn’t CONSTITUTIONALLY qualified.
Whitaker is just another crook Trump wants to appoint. Still think Mueller can stop this quickly enough by indicting Don Jr and Kushner. Maybe file an indictment that allows for additional charges to be added - for good measure, he can identify Trump as “Person # 1” as an unindicted co-conspirator.
2
Is shouldn't surprise people that Kellyanne Conway's husband, George Conway is taking this stance against the president.
What is surprising is that more lawyers aren't taking this stance against a runaway presidency, against a president who thumbs his nose at the Constitution and considers himself above the law.
5
The dinnertime conversation in the Conway household must be super-awkward right about now.
2
The POTUS has you all in a faux outrage.
If someone wants to they can go to the court to challenge POTUS on this temporary appointment. That's what we have a judiciary for.
POTUS is not above the law but certain laws allow POTUS to do things.
You used an expression that I had never heard before: “Constitutional Evasion”
The name of the disease afflicting our body politic is Impunity. Allow me to explain.
‘Immune Evasion’ is a medical term used in medical research to refer to infectious diseases, such as HIV, that are capable of ‘evading’ the immune system defenses against diseases caused by immune-evading viruses. Untreated, these viruses can have mortality rates approaching 100%.
So, the president and his cohort are behaving like infectious disease pathogens that are able to freely infect the body politic and avoid the Constitutional defenses in place that protect us all against such infectious and toxic agents.
We have no cure for these diseases yet. But advances are being made that allow us to teach the immune system how to recognize the toxic agents freely lurking and marauding through the body politic with such impunity.
I am hopeful that the cure for ‘impunity’ is at hand and it is called ‘oversight’
3
If there isn't, there should be a law or rule that, in the absence of subsequent Senate confirmation, all decisions by said appointee be rendered null and void. As others have already said, it is all a moot point, since Senate confirmation is all but assured.
I believe it is safe to assume that Trump has wanted to fire Sessions for 18 months more more, And this is his best effort with 18 months of planing? A seemingly willynilly pick apparently berift of any expect consultation with constitutional implications?
I have to believe that roused from a deep slumber and asked to make a quick judgement of a fundamental issue a reasoning person might ask for some time to consider the issues and seek consultation. But not Mr. Defend the Constitution. No, stable genius spent those 18 months watching TV, tweeting, leading chants of lock her up at rallies and, dare we forget, rounds of golf.
I suspect Trump spent more time tweeting about Sessions than he spent considering his replacement and adhering to the constitutional process.
8
The same section of the constitution specifically allows for recess appointments without Senate approval, presumably because some positions can't be held open until approval is obtained. Could this be regarded in the same spirit?
Probably the first time the authors have relied on anything written by Justice Thomas. Under Thomas’ s theory in dissent, if the Vacancy Act is unconstitutional that would seem to undermine the authority of any “acting” cabinet member...as no such creature, nor deputy executives for that matter, nor recusals, exist in the Constitution. Strict adherence to the literal constitution WOULD eliminate vast federal fiefdoms...but is a long way to go to fight the new Acting AG...and may take appointments other Acting AG’s with it. The authors wrote as political writers, or the good lawyers they are. So what happens to the Vacancy Statute? All bad or just the part they don’t like? I’d like to see their legal analysis on that paramount issue.
Your op ed piece makes a compelling, if not forceful, argument that Mr. Trump's action of appointing an acting Attorney General without confirmation is unconstitutional. So let's add this to the list of Mr. Trump's other unconstitutional actions.
10
He is acting, or interim. No Senate confirmation required unless he formally nominates him for Attorney General.
3
Oh, now I see the place in the Constitution you're talking about -- right there where it says principal officers require Senate confirmation but "acting or interim" officers don't.
Unfortunately the two learned authors of this piece misread Justice Thomas' opinion. According to Justice Thomas, the Constitution applies only when the power of right-wingers is not at stake. When their power is at stake, the rule of law, including the Constitution, is suspended until right-wing power has been consolidated.
9
Mueller is too smart not to know this is coming. So yes, I believe he has already drawn up indictments and had them files along with other actions taken. The Southern District also plays into this...I hope they have taken similar steps.
I also believe the leaks that will occur in the coming weeks and months will be a result of Mr. Whitaker's escapades. The DOJ and its people will probably not stand for this.
10
Neal doesn't have all the facts. There is a big difference between an acting agency head and an appointment. As Jonathan Turley notes in his blog, the Federal Vacancies Acts permits the temporary appointment of an agency head by persons who are at a GS-15 level or higher and have worked for the agency for 90 days in the past year. There is a time limit on the temporary appointment.
I'm surmising that Congress passed this law to ensure the smooth continuation of agency functions when someone retires. It also limits the effects of a partisan advise and consent process.
2
Could you point us to the part of the Federal Vacancies Act where it overrules Art. II, Sec. 2, cl. 2 of the Constitution? Because according to Thomas (and Trump), the Congress can't change the requirement of Senate confirmation, no matter what label they apply to the principal officer.
2
I'm at a loss for why so many people seem to inherently trust Donald Trump. Every word that comes out of his mouth proves that his singular focus is his own self-glorification. His supporters continue to look the other way and justify his actions as he moves to consolidate power and silence dissent. I know many people find history boring but please for the sake of our country, step back and try to see the parallels between what is happening now and what happened in the years leading up to WW-II. Our founding fathers created a government with a well-designed system of checks and balances for a reason.
13
The latest protocol on Senate confirmations is, if the appointment is made around the time of an election, we should wait for the new Congress to convene before considering the appointment.
If that is the case, would we want a new Attorney General confirmed by a lame duck Senate? Wouldn't we wait for the new Senate to take up confirmation?
And if we were to do that, what is done in the meantime? All phone calls to the Justice Department just go to voice mail?
2
In my agency (a Division of the Department of Justice), interim appointments are made every few years. There is nothing remarkable about interim appointments, per se.
I think we can all appreciate the point that folks might be tempted to stretch interim appointments into de facto, long-term appointments. So, there may be a grey area. Fine.
If the Administration were to nominate a new Attorney General within the next month or so, would you be satisfied? Or is the entire Department of Justice supposed to be rudderless for months on end while parties up on the Hill endeavor to sabotage confirmation processes? You know, like the Kavanaugh Circus?
You need to articulate limits to the rigid, maximalist policy prescription your opinion implies.
@chaunceygardiner, can you name an interim appointment, to a principal office, of a person who had not been confirmed by the Senate in his current role? In the entire history of your agency?
1
The best response I've heard for dealing with the expected actions by Matthew Whitaker to cut funding to Mueller's special counsel team is:
Go ahead and cut the funding.
Private funding (i.e., by American citizens) will gladly and quickly provide Mueller's team with thousands of times more funding than current funding levels in order to allow Mueller to deliberately, comprehensively finish this investigation.
14
Don't expect any help from the Supreme Court. If Justice Thomas believes that the general counsel of the National Labor Relations Board in a principle officer, then surely the Special Counsel fits the definition, whether he reports to a Deputy AG or not. Fully expect the Supreme Court to rule 5-4 that dismissing Mueller, when it inevitably occurs, upholding the dismissal.
2
First I agree that appointing Mr. Whitaker is unconstitutional. How can a non-Senate confirmed appointment supervise Senate appointed personnel? Why not just appoint Ivanka or or the butler or even your doctor?
But for me, and much more important, is what governing body has the authority to stop or cancel this appoint? It's one thing to say it's wrong and quite another to stop it. Since the GOP controlled Senate has turned their backs completely on the Constitution who will right this outrages decision?
16
The opinion piece raises two points (the presidential power in excess and Mr. Whitaker as acting attorney general as unconstitutional) to be converged against the centrization of power in the government, which should not be allowed in the liberal democracy of America. The argument goes onto the constitutional principle to be observed strictly in order for such a centralization to be prevented from occurring. The sole legal reconciliation between VRA (practiced in ignoring Justice Dept succession statutes) and Appointments Clause depends on the degree of emergency for appointing an acting attorney general. The writers state that the (forced) resignation of Mr. Sessions is not the case. Mr. Trump and his constitutional scholars’ team, on the other hand, might argue on the avoidance of the vacancy having been urgent, because Mr. Sessions had factually and already resigned. If the case is majorly proved to be unconstitutional, how quickly and smoothly all can be redone in a different way will become another urgent issue, I suppose.
1
Yes, yes, yes. But, what would be the precise steps to remove Whitaker from this position? I am not an expert, but I think, at least, a ruling of unconstitutionality of this appointment is required. Then the question becomes: Is Whitaker allowed to continue as acting Attorney General while a legal case works its way to the Supreme Court?
5
The facts are clear. Trump is a criminal and a traitor. At every turn he is acting like a dictator, unconstitutionally consolidating executive power, relying on the FACT that the Congress would never move against him.
The tables have turned, and if the Senate will not stand up to the Clown-king, the House must. The Clown must reverse course, else risk impeachment.
If impeached and the Senate will not convict, then there must be an awful reckoning in 2020 to save our Republic. Do not be confused: our very form of government and the principles it was founded under are being attacked by anti- republican forces.
Sic semper tyrannis.
27
@Citizen
Need 2/3 majority in house to impeach. Not going to happen.
"Because Mr. Whitaker has not undergone the process of Senate confirmation, there has been no mechanism for scrutinizing whether he has the character and ability to evenhandedly enforce the law in a position of such grave responsibility. The public is entitled to that assurance..."
Does the public have any faith in a Republican-controlled Senate to effectively or disinterestedly scrutinize a nominee's character after the appointment of Brett Kavanaugh? I can't see how they could. Trump et al. have compromised the Senate.
29
It doesn't matter whether we have a low opinion of the Senate at the moment. It's the process that matters. Trump has no plans to ever put Whitaker up for Senate confirmation. And yet Whitaker is purporting to act as a principal officer of the United States right now.
1
@Cameron
They were always "compromised," if by that you mean acting in a way that makes their constituents happy. It's the people they represent who are the reprobates, grifters, and mental subnormals.
To make matters worse, Whitaker was integrally involved in a corrupt company that bilked tens of millions of dollars from customers. I was aware that he had been on the advisory board of that company which was found guilty and paid restitution of $26 million. Now we learn, as reported elsewhere today, that he had, in fact, played an active role in many aspects of the company's operations, including possibly even threatening customers. As noted here, it is unconstitutional to appoint him, because he has not been vetted by Congress. And how could Congress ever approve him given just this single revelation?
39
Doesn't making an unconstitutional appointment violate the oath of office? Just like making an executive order to by-pass a constitutional amendment should violate his oath of office (meaning it should lead to 435-0 and 100-0 votes for impeachment if congress upheld their individual oaths of office).
34
What is left of our government that would care that it was unconstitutional? Only the House - maybe.
24
We, the people, remain . . . and we are not backing down. Indeed, thousands of Americans across the nation took to the streets today in support of Special Counsel Mueller and his investigation. On Tuesday, millions of Americans voted and placed the Democrats in the majority in our House of Representatives. The election result is tremendously important because it allows for a meaningful check on the Executive Branch, which appeared entirely absent while the Republicans held the majority in both chambers. And, in the months and weeks leading up to the midterm elections, volunteers of various ages, races and backgrounds came together and worked on the campaigns of candidates who are genuine public servants and who will work for the American people; not for special interest groups. Additionally, on a daily basis, engaged Americans call or write/email their state and federal Senators and Representatives to express their concerns and to have their opinions heard regarding pending legislation.
EVERY American has the power to fight back. EVERY American can and should do SOMETHING to make his or her voice heard. If you truly care about health insurance coverage for pre-existing conditions, wildlife conservation laws (i.e. retaining our Endangered Species Act and other conservation laws), public education, availability of affordable contraception, preservation of our public lands, respect for and protection of our free press, clean air or clean water, LET YOUR LEGISLATORS KNOW!
39
Presumably the courts could rule it unconstitutional.
1
Trump updates the bandito character in "Treasure of the Sierra Madre." "I don't need no stinkin' Constitution!"
18
Messrs. Katyal and Conway make good constitutional points following Professor Calabresi and Justice Thomas. They could well be moot points, though, if the arguably-acting AG Whitaker proves to be just a placeholder, takes no significant action, and a new AG -- with proper Senate approval -- is appointed. I imagine that is the real design.
2
@Dave Oedel
IF Whitaker was intended to be “just a placeholder”, then Rosenstein could have been given the position, thus avoiding any appearance of impropriety.
He’s there to do something, if only to get all the info about the investigation, and pass it on to Trump.
2
If that were all the POTUS had in mind, he'd have appointed Rod Rosenstein.
I believe you have misread the argument based on a category error. Katyal and Conway say no such thing about inferior officers. They wrote the following:
“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.”
They did not say, as you seem to imply, that principal officers, and only principal officers, require Senate confirmation. To the contrary. They are saying that principal officers must be confirmed AND report only to the President. Both are necessary conditions for the title. Each on its own is insufficient.
Moreover, not all inferior officers require the advice and consent of the Senate, though some do as Congress sees fit, as in the case of DAG Rosenstein or AAGs. But that’s immaterial to their claim, as they are arguing about the constitutionality of an unconfirmed principal officer assuming powers without the Senate’s advise and consent mechanism.
3
Note: The above post was intended as a reply to an earlier comment posted by George Tidmarsh.
The new AG is in a position to do a lot of harm to the investigation even without firing Mueller: by being privy to the information Mueller has and then passing it on to Trump, he can seriously undermine the investigation even if he lets Mueller stay or doesn't cut its budget.
45
That's what Whitaker has been doing all along !
Apparently Kelly already identified this person as the White House's " eyes and ears" at DOJ (according to the Times).
What is the remedy? How can this appointment be forced to stand before the Senate for consent?
18
America, what a nation you are turning into?
A snake oil salesman President appoints an undisputed Board member of a "scam" company to head the Justice Department. The Justice Department, if you please!
This Reality TV show can't get any more bizarre.
105
@AG Not only do we have a "fake President" but now we have a "fake AG" I'm a naturalized American citizen and I'm truly horrified by what is happening in this country. Every day is a new low and a new tragedy-- in the last few weeks we've had a journalist hacked to pieces by Saudi Trump's cronies, and the president has yet to denounce this atrocity; a number of pipe bombs sent by a Trump follower to members of gov't regularly demonized by Trump ; a republican Secretary of State in Georgia (Kemp) engaging shamelessly in voter supression to benefit his own reelection; an anti-semitic mass shooting in a synagogue in Pittsburgh by a white nationalist (a collective Trum has in the past described as "very fine" people); a firing of an AG who refused to be Trumop's lackey and put country before a "fake" president; another mass shooting last night near Los Angeles and a constitutional crisis today by the illegal appointment of Matthew Whitaker, instead of Rod Rosenstein (Session's second in command) to head the Justice Dept. .
What will tomorrow bring? renewed fear mongering from trump about the "Caravan", to distract us again?
But worse of all, a Republican Senate aiding and abating all the above by not doing their constitutional duty to rein in the "mad king" sitting in the White House.
3
Care to wager?
Check out Rachel Maddow's show tonight on the background of this guy....he's a scam operator!!! Not only should he recuse himself, but he has bilked investors in some Trump University like operation. States need to push away from this illegal AG...no compliance with an AG that is not legitimate. Trump needs to go! Impeach now!
58
the National Security advisor and the president's chief of staff don't get confirmed by the senate... so those guys aren't "principal officers?"
Sessions was fired by the chief of staff... and typically the cabinet secretaries report more directly to him than to the president. So what's going on?
4
These are aides to the President, not officials of the government.
The CoS and NSA are advisors and have no formal role in deciding or implementing policy.
@Smokey geo National Security Advisor and Chief of Staff are simply aides to the President.
So now we have a sitting President literally committing an act that is a violation of the rules laid out in our Constitution, and by all accounts this is true and verifiable.
Yet it seems, and perhaps I don't know whether it's true, but it seems there is no way to stop this travesty.
Surely the newly Democratic House must be able to act, or if they are "unwilling", as I tend to think, given that Pelosi earlier indicated, as reported by the NY Times, that impeachment of Trump would not be considered, is it just me, or are we not looking at the beginning of the end of respect and observance of our Constitution, by our sitting President, Donald Trump ?
The man is literally thumbing his nose at every American, every minute of every day, since he somehow or other captured the Presidency.
Methinks something is very, very wrong, here in what was once America.
36
It's a long road to impeachment yet and strategically impeachment needs to be followed by conviction in the Senate. Right now, the Republican-controlled Senate would never convict Trump. The Republican-controlled Senate is still enabling Trump's crimes.
29
@Mel Farrell
The House doesn’t become majority Democrat until January. Until then ...
Please Remember-
The Democrats will not have power or authority over any of the until January 3, 2019...
And with this Admin and the Republicans, these weeks ahead will not be weeks, more like years.
2
This piece is factually incorrect by stating that the person must report directly to the president to be an officer and hence all other positions not reporting directly to the president are inferior officers not requiring confirmation by the senate. For example, the Deputy Attorney General and The Associate Attorney General are both confirmed by the senate and neither report to the president. So the entire basis of the argument is completely flawed.
3
It is the difference between principal officers of the federal government who report to the President, and Presidential aides.
@George Tidmarsh, are we reading the same piece? The authors write that "[w]hat makes an officer a principal officer is that he or she reports only to the president." Your comment does not indicate that you understand that sentence.
1
Did they say that inferior officers can’t be confirmed by the Senate or just that principal officers must?
This photo resembles the skin head neo-nazis. The administration is putting in “nationalists” (as in white). Will trump shave his head to fit in with his new nationalist party title? trump is so sure of his new trump court that he is saying “we’ll let the trump court decide”. Exactly what he has planned for two years. He now has his control in the judiciary & senate. What can the little ole house do but investigate (or at least threaten to investigate) trump’s every move. Hope Sessions knows something & gets immunity to talk!
12
Given that the appointment is obviously unconstitutional, would Mueller (or Rosenstein) be justified in ignoring any directives from Whitaker?
29
I imagine we'll find out how stacked the Supreme Court is with it's newest members. Will we have two different sets of laws?
12
So what do we DO? Who / what steps in here?
15
@Susan Kannel
Part of what's been so troubling about this entire debacle is the feeling of hopelessness... but in talking with a friend from Europe, I realized we cannot wait for Congress to act (since half of them are clearly okay with letting the Constitution be torn apart in forwarding their own interests). He reminded me that the reason Europeans have so much more power over their governments is their willingness to demonstrate, riot, and interrupt government until government responds. We, the people, need to take to the streets. We need to riot. We need to withhold our taxes until the representatives represent us. No taxation without representation.
29
@Helen
Demonstrating in the streets, withholding taxes, etc. are all ways to make our voices heard. Usually this has either no effect, or it takes until the next election cycle to make a difference. And that is a matter of how many of the electorate actually believe (or remember - given their short memories) there’s a problem to begin with at the time of the election.
The main reason they tend to work differently in Europe than they do here is that the governments there are parliamentary. The chief executives there are more directly connected to their parties in Parliament. They are essentially just the highest ranking member of the leading party in a parliament. All it takes is a vote of no-confidence, and the government has to be reorganized.
Governments run in that fashion tend to be quicker to respond to the whims of the populace, whether for good or bad. The founders of the US purposely set up our government differently to put the brakes on radical changes.
1
@Helen. But...but...but. Civility? What will a America be without civility. Just think what might happen if racist fear-mongering liars were harassed at their homes? What if soulless apparatchiks couldn't enjoy their sushi? What if someone was inconvenienced? No,we should all be civil, and let the creeping fascism engulf us
I and virtually everyone who has read any of the Constitution would agree with you and so would everyone in the past...
However, the current Senate has abdicated their redsponsibility.
21
@rons316 What did you expect with that degenerate in charge of the senate ?
Mr. 'I don't read and have never read the Constitution' Trump is getting pretty far ahead of his skis. I say let him go for it. There are probably 100,000 lawyers in this country who can undo his actions with a flick of a brief.
18
Trump is adding layer upon layer to the obstruction of justice charges that await him. His motive in all these acts is crystal clear.
30
This should surprise no one. He will ratchet up the confrontation before the Democrats can take control of the House. He will try and keep them off their game. Few if any are left on the Republican side who would challenge anything but the most blatant abuses. From his perspective, he will be better off in 2020 if he gets the whole investigation behind him and consolidates control sooner than later. From an oversight perspective, the sooner the results of Mr. Mueller's investigation get into the public domain, the more energized the opposition will be. In short, I believe that low rumbling you're hearing is the sound of an avalanche coming down the mountain through the night, and dawn is about to begin breaking.
13
Thank You Mr. Katyal and Mr Conway.
The framers of our constitution, as the authors of this article point out very clearly, directly tackled power imbalances in the English Colonial rule that led to abuse here in the former colonies. They even looked for answers in Native tribal councils' structures of justice. Yes. They did.They wanted to get it right to prevent abuses of power.
It makes me laugh that the so called constitutional "originalists" slyly, and intentionally attempt to implement their idea of 'original' rule, not law: by that they mean brutal, out of balance, and out of control COLONIAL authoritarian power and greed. Yes: capitalism run amuck on the high seas.
OUR forebears, the mothers and fathers of the American Revolution precisely fought against authoritarian control. Equally, they sought enlightened and balanced self government.
Much of our history has evolved to expand to include all the people and the environment and wildlife too for obvious reasdons; while maintaining these constitutional premises that protect and nuture the prospering and wellbeing of all, and necessary justice.
English Colonial lawlessness bordered on highway robbery and piracy perpetrated by authoritarian monopolies of power that more nor less fleeced the global commons, and worse. They taxed the people but not themselves.These conflicts of interests and imbalances of power get a correction under our US Constitution in the 21st century. This goes for the DOJ!
10
@Julie: don’t forget that the revolutionary Americans were colonials, that Washington was a British officer, and that for much of the war of independence it was actually a civil war of Americans against Americans. It is estimated that half of the colonists were loyal, and they paid a bitter price, especially the loyalists of Indian and African stock. Governments are by their nature authoritarian, and the British government may have enough heavy-handed (as they were also in Britain, which had precursor revolts from time to time), but they were short of money for defence (which was at least partly benefiting the colonies). I encourage you to read more widely - not just US authors, who are often understandably partial. Try Holger Hoock (America’s violent birth) if you can stand some brutal scenes from all sides.
Fine. But if so, who's going to do something about it? I see lots of outrage and hand-wringing, but no action. If it's illegal, there must be some mechanism, and someone with the proper standing, to challenge it.
26
If the president hires enough like minded judges then whatever they say is constitutional will stand... So much for The Constitution.
16
No offense to the writers, but this seems a rather obvious gaffe by Trump. In my reading about Whitaker, I assumed that he had needed Senate confirmation for his position as Chief of Staff to Sessions. I made that assumption because it has been discussed for months now that if Sessions resigned, Trump could name anyone to be acting AG providing they already had Senate confirmation. Did Trump and Kelly and others cook up this whole idea without raising it with White House Counsel? If Katyal and Conway are right, and it seems so, litigation should commence forthwith. One has to ask how Trump could be permitted to do something so obviously in violation of the Constitution and the Vacancies Reform Act? This is well beyond a Trump impulsive Tweet. Someone in the White House should be handling these kinds of things, particularly if they are 16 months in the making. This White House may be every bit as incompetent as many pundits have been suggesting.
35
Trump has spent a lifetime walking all over laws, regulations, protocols, norms, and etiquette. He has always done exactly as he wants, and dared people to stop him.
If he is told that he cannot throw a rock through a window, he instead throws a brick through the window. Trump has survived by stepping on the little people. Now that he's President of The United States, every person on earth is a "Little People", in his mind.
22
We as the people have taken to the streets to demand the protection of Mueller. It is fair time that Mueller start doing his job and come forth with charges.
6
@Mixilplix, "start doing his job"? Have you missed that charges have been brought against four Trump campaign officials, Michael Flynn, Paul Manafort, Rick Gates, and George Papadopoulus. Three of them pleaded guilty and the fourth is in prison after being convicted in his first trial, with a second trial pending. Not to mention the twenty-some Russians who have been charged. He is quiet and thorough, which results in charges that stick. This is a big puzzle to be unwound with lots of players. That Trump keeps obstructing justice shows how much is at stake.
25
Mueller has been doing his job. DOJ rules (or perhaps traditions) dictate that nothing be done during the time preceding an election that might influence the outcome of the election. Mueller has adhered to that requirement. I’ll bet there will be news coming soon from the special counsel investigation.
19
No one who flouts the law deserves its protection.
9
Ummm. I don’t buy that this appointment is unconstitutional. It may be abhorrent and yet another step on the way to a fascist regime, as what many Americans regard as democracy goes down the drain. At which point, unconstitutional will be utterly irrelevant
For those who might want to revisit history, we may be well down the road to the 1930s and the demise of the Weimar Republic.
And, see Reinhold Niebuhr for altogether prescient warning for many of us.
3
That is appointment is unconstitutional is undeniable by any interpretation of the document. Until his appointment is confirmed by the Senate whomever is occupying the position will have dubious Jurisdiction.
What good is the AG with no legal authority?
9
@Demetrios I hope you are right re whether the appointment is unconstitutional... Clever lawyers, however, and a rightwing Supreme Court that will do Trump's bidding may be major stumbling blocks!
@Kathy, could you tell us why you don't buy the argument? Predictions about looming fascism do not a constitutional argument make.
The Constitution and Rule of Law must prevail. Any decision made by Mr. Whiticker is illegal per this article.
15
Trump: “This Constitution thing? Just another law to be broken. What’s the big deal?”
4
And yet this new AG is cleaning house. Sounds like someone is scared that they didn't get any control over putting another lazy useless AG in that office.
2
The adults are coming.
5
I would love to be a fly on the wall during Friday night dinner at the Conway household
14
Blah, blah, blah, Blah! Hillary essentially lost the presidency by 77,000 votes. Any other, non-apparently-corrupted, damaged candidate would have KILLED Trump and saved US from all this Sturm and Drang. Think about that! Thanks Hillary.
2
@Pahrumper: She would almost certainly have won if she had selected Bernie as her VP. He would have brought all the progressive vote with him. That in turn, would have given her more wiggle room to campaign farther to the right if she thought it necessary.
By not selecting Bernie many of those progressive either did not vote, voted for Trump, or just didn’t punch the ticket for President (90k Michiganders voted a Dem ticket without punching for the President - so 1 state right there).
Hillary narrowed her base by rejecting Bernie. She instead picked Tim Kaine, a good man but he did not bring any additional constituency. In doing this, Hillary was saying she rather Trump win than give progressives a seat at the table. The result was catastrophic.
In truth she probably felt she had a lock on the presidency so why throw the progressive any bones? This was incredibly foolish. Even Reagan knew he had to nominate his greatest adversary from the primaries if only to give them a reason to show up on Election Day. This is Politics 101. Hillary is guilty of political malpractice and we are all paying for it.
I wish some interviewer would corner her on this - I want to know why she didn’t bother expanding her base by picking Bernie.
14
No amount of whattaboutism can make this appointment appear more constitutional. And it's quite Trump-like to bask in self-imposed ignorance by responding to a reasoned argument with "blah blah blah." That's assuming you even read the piece, Pahrumper.
so it's unconstitutional, and illegal.
Who gets to sound the alarm and notify ignorant-in-chief this not allowed in the United States of America?
Who stops this attack on OUR laws?
10
Just in case anyone's missed it, the co-author of this piece is George Conway, aka Mr. Kellyanne Conway.
Dinner tonight must've been awkward....
14
She put him up to it probably.
We are agreed that this appointment is unconstitutional and illegal, for reasons stated here a number of times. What, however, is going to be done about it? Will the matter be taken to court? Will a qualified person be placed in the position? If I commit an illegal act, I expect to be arrested for it. These people all seem to be above the law.
26
Correct me if I am wrong, but the President does have the power to appoint interim officials in the case of an empty position. The appointment stands until it is either confirmed or struck down by Congress, and Congress must be in session for that to happen. which they are not. Am I missing something?
5
@Aymaan
yes, you are missing something. Read the article, it's stated clearly - who needs Senate confirmation and who doesn't.
11
A fascinating and thoughtful column. Thanks to the authors for this cogent analysis.
14
Whitaker behaves more like a bouncer/defender of Trump rather than of the US Constitution. It's clear that his loyalty is to Trump, NOT the US Constitution. He knows exactly why he was selected -- to protect Trump. He will NOT recuse himself, despite having fulsomely, repeatedly and loudly revealed his prejudice against both Muller and his investigation. His previous jobs were as a conservative talk show host where he railed against Hillary Clinton and the Muller investigation; and as a consultant for World Patent Marketing, a now-defunct company fined 26 million dollars for scamming its investors.
Worse, Whitaker has much to lose since he has NO assurance that Trump will be loyal to him. History is not on his side.
27
Real question: If Whitaker’s appointment is unconstitutional because it lacks confirmation, what steps need to be taken to overturn it and who should take them?
20
Correction...Ken Starr was not in Watergate trial!
Saturday Night Massacre: the Sequel.
10
Does this lawless president do anything in accordance with the Constitution and where is Congress (aka the wimps in Washington) who should be curtailing this lawlessness? It concerns me greatly what he will do in the next two months before the new Congress takes hold.
15
Does this guy realize his only job opportunities after the DOJ is Faux News Commentator or Dog Catcher?
14
haldeman without the hair. crikey
11
Why is this an editorial if this is law? Shouldn't it be front page, above the fold, all caps that Trump is blantently, once again, breaking the law?
51
So our Criminal-in-Chief now has his Roy Cohn at last!
Just wait for the damage this guy is going to do to the Mueller investigation. We know he is close to possibly indicting Donny Jr. for perjury, so the Trump family is now in dire straits and need their "protection" man.
Isn't this SO blatantly obvious to everyone, and therefor, what steps are going to be taken to thwart this Dictator's corrupt intentions?
Republicans, you answer first.
19
Fire Mueller now!!
"Let me ask you [Mr. Trump]: have you even read the United States constitution? I will gladly lend you my copy. [he pulls it out]"
- Khizr Khan (Philadelphia, July 28, 2016)
25
This just in from Trump. The United States of America is officially going to be renamed Trumpistan.
9
Who is this Whitaker person? He has been serving as a drum to repeat Trump's insanity to the public for well over a year and he admitted his ambition has been to get a federal judgeship from Iowa-- apparently, from his picture, so he can get the nickname the Bullet Judge: go before him and you're dead.
I guess he didn't expect to get US AG just like that but that's what you get from assiduously sucking up to Trump (and really looking the part; I think Trump is a sucker for good looks)-- rapid elevation and the risk of a fall from a height.
He really looks like an idiot in that picture. I guess it's true what was said 150 yr ago by John Stuart Mill: "Although it is not true that all conservatives are stupid people, it is true that most stupid people are conservative."
(edited out plug for brainyquote (how'd they do that?) but will admit I do use them and they are at the top for google searches, especially on this quote, which I can never keep straight. It keeps coming out not that you have to be conservative to be stupid but that you have to be stupid to be conservative... same difference.)
HEY! That bears repeating:
John Stuart Mill: "Although it is not true that all conservatives are stupid people, it is true that most stupid people are conservative."
7
This must be advice from Rudy Giuliani. Hey, whatever happened to Rudy anyway?
10
Does anyone truly believe that this hack has the intellectual skills required to properly review the report of Robert S Mueller or the preparedness to cross the boss?
I mean, just listen to him!
21
@Lazza May - Revolting isn't it?
As an Iowa alumna (MA in Arts), I am saddened to hear of the appointment of Iowan Matt Whitaker. Trump is going for 'loyalist' frat boys (SCOTUS) and football players (DOJ) now, a protective layer who will buffer him from the inconvenience of the Constitution.
11
Trump is unconcerned as he knows his Senate will give him the required “advice and consent.” Even if it’s temporarily delayed by a shackled FBI investigation or the like. Work fast Mueller.
15
As I do with other staff who work for me, I want them to like what they choose to do, and subsequently, do a good job at it. It benefits them (e.g. 'pay for performance'), it benefits me (e.g. good results). Unfortunately for those of us who pay his salary, the commander-in-chief is demonstrating he doesn't really like his job. Since he takes no interest in it (too lazy to learn what it takes to replace senior staff), he doesn't even try to be good at it, and consequently, he's really, really bad at it. As with my other poor performers, I help them move along to their next opportunity. Would Congress please help him out of his misery?
10
Trump will do what Trump wants to do. He has absolutely no regard for the constitution or any inconvenient laws that get in his way. The U.S. constitution might as well be printed on toilet paper for Trump to use as he sees fit.
17
Whether what Trump did or didn't do is illegal--can we all just move on? All of what he does is shady. Illegal, probably not provable--just like in all the other arenas of his life
It's almost 2019 people! I didn't vote for Democrats to keep up this nonsensical conversation going. No one and nothing will remove Trump from office. It's a done deal. Let's focus on medicare, healthcare, social security, let's be pragmatic and move forward from where we are. Trump & his cronies thrive on this bickering.
Actually, Trump is the Attorney General.
2
Vulture capitalism is merging into vulture democracy, aka fascism.
If that is true, who's the carrion?
We are.
9
anyone else, who matters, talking about this violation?
No.
You know why?
Because violation of constitution is norm now!
2
It is offensive and wrong to think that everyone who disagrees with Trump is part of "La Resistance". It is easy to dislike this malignant toad impersonating a human being without even considering his political effect on this country.
4
I have been through a lot of Presidents, the worst, Nixon. Trump has now, except for starting a war that killed millions, surpassed Nixonian deviltry. Because Trump never had nor ever got recently, and idea about civics and how the government should run, he's just doing the Dictator thing. Throw things on the wall and see what sticks. My anxiety level went down 50% after the Dems got the House, but this is still a very dangerous man.
9
If we have to have a Republican president, why couldn't it be someone like George Conway?
He's sharp, believes in following the Constitution and our country's laws, and works well with people who don't share all of his views.
Plus, he must be the most tolerant man on the planet.
16
If Kellyanne and George can share a bed, surely all hope is not lost for our squabbling democracy.
2
So basically he is a fake AG. Try suing me.
2
So Trump appointed a strict mis-constructionist? Shocker.
Again this president thinks the constitution is just a group of suggestions like traffic rules in a banana republic. Any Attorney General even an interim posting must have gone through a current vetting by the senate to be eligible. He could have picked any currently serving US Attorney to serve until one could be nominated and vetted by the senate as the founders designed it. But instead he picks this hack who has acted as a spy at the DOJ for months. The one good thing is he will look great in a giant orange jump suit.
7
Someone's sleeping on the couch tonight.
4
Thank our, gentlemen.
Whether Trump’s actions were constitutional or not, he should have told the public before the November 6, 2018 election that he was going to pull this stunt.
The public deserved to know this when they cast their votes for senators.
He failed to do so because he was a COWARD. He knew that if he leveled with the public, was fully honest, and fully transparent, the public would have voted to change the balance of power in the Senate and the senatorial candidates he supported would have gone down in flames.
Mr. Trump, you are a COWARD and have no shame.
13
I just saw a lawyer on MSNBC that said this article actually should be read as proof that Mr. Birther's appt. is indeed CONSTITUTIONAL.
The article is a ruse.
The Times has taken on exactly the role that it so often warns us against. Inciting panic, anger, and division by spinning fantasy speculation as if it has already come to pass. Read the comments here. Half of the posters believe Mueller has already been fired. There was a protest against the firing of Mueller in Boston today. Mueller has not been fired and it is highly doubtful that any action will be taken against him.
1
This is not a "recess appointment." Trump fired Sessions so he could be replaced by a hand-picked sycophant. But Trump doesn't believe in our Constitution. He never has and he never will. He's been in violation since the day he was sworn in.
10
"The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." Article II, Section 2 of the U.S. Constitution.
1
If a Constitutional Crisis falls in the forest while all the Forest Ranger ignore their duty and put their hands over their ears, does it make a sound?
A quick follow-up:
If enough of the men & women in Congress cover their eyes and ears, do they then presume the rest of the country to be blind and deaf?
Esoteric legal arguments aside, we all recognize what this is. Those seated on both sides of the aisle (or is it more of a chasm?) ALL know exactly what is going on here! Hopefully, respect for the Constitution will be sufficient reason for Congress to step up, lame duck or not - Democrat, Republican, and Independent.
7
What's really shocking is that Katyal's and Conway's argument is so simple and clear. You don't have to be a lawyer or a scholar, or even spectacularly bright to understand it. But we have a president who doesn't, and our president doesn't seem to have advisors who are bright enough to understand it or brave enough to explain it to our president.
12
Has anyone looked at Whitaker's 'qualifications'? What a joke. The only thing that remotely qualifies him is an unsuccessful stint as US Attorney in Iowa--appointed, of course, by GW Bush (champion of the unqualified).
Trump had to scrape pretty close to the bottom to find someone to protect him.
15
Another mass shooting. Can't think of anything except the fact that America is one sick country when you can't go to a country western bar without getting shot, or kindergarten for that matter. And yes, Trump can put someone in the position temporarily, but has a limited time to name a permanent appointment. That's my understanding...
4
@RCJCHC - Try South Africa - wall to wall degenerates.
ok. So who is gling to bring this issue to the Courts so that they can rule on the constitutionality?
2
Obama appointed, with no oversight from Congress, czars over much of the US government.
1
@Wilson - I think that America would have been in a far better position today if Hillary had been elected president in 2008.
Huh?
I grew up in a third World country where the division of powers existed only in paper , but I was fortunate enough to be born in the USA . It alarms me to see this kind of behavior from our leaders. This are Sad Times we live on.
20
If the best authority for their view that appointment of an acting AG is unconstitutional is dicta by a Supreme Court Justice whose views they otherwise reject completely, then their argument is not a strong one. When any such leader resigns, selecting someone to act as the head of a critical organization is necessary. And practically, with Sessions gone, the President could simply choose to give Whitaker authority without formalizing it. Remember, politics is the art of the possible. Just ask Mr Obama.
3
It's all well and good to say that Trump can't do this. But, he has done it. So what now?
What is the mechanism in place to stop this? And, when will it be activated?
If the other branches of government do not stop this they are guilty of dereliction of duty.
It just goes to show that the worth of the constitution is wholly dependent on the character, courage and intelligence of the people elected to uphold it.
29
Yeah, the Constitution is bipartisan, but not the GOP Senate's commitment to it.
The GOP's ideology of "Originalism" is similar to that of "State's Rights" - flown like a flag when it supports their personal or political interest, and conveniently forgotten when it doesn't.
18
The photograph says a lot about the appointee, who has been laboring for years to make a name for himself. As far as Marbury v Madison goes, no SCOTUS will overturn that one, thanks to the genius of John Marshall. We're not going to see his like any time soon.
5
@Peter Aretin - Indeed , a picture paints a thousand words.
President Trump's motive in circumventing the legality of Senate approval of the new Attorney General is all important. If it can be shown that the president hired him to defund the Russia probe it may go a long way to demonstrating obstruction of justice, both in asking for Session's resignation anjd in hiring the new AG.
7
@smokeandmirrors "If"?
1
“...the Constitution is a bipartisan document”.
Non-partisan. FIFY.
7
Would it matter if he were to go through this Senate? Unless the vote requires a super majority, any thug this "President" offers will be confirmed.
2
The so called president has messed up so many times in his businesses and been bailed out time and time again by his dad, and after squandering 400 million of Dad's money has probably been squandering Russian rubles. He is rarely coherent with his limited vocabulary and the repetition. He is really not far from completely not making any sense all the time. All he has is childish tempestuousness, and foot stomping going for him, oh and greed and cruelty side dishes.
So does anyone really think he is unstoppable?
Even his enablers the GOP party are weaklings. I am backing Mueller, seemingly the only adult in the room. God I hope the Democrats can grow spines, no matter what their corporate donors say. Would someone with a real spine step forward to aid and abet Mueller?
16
Did Pres. Trump violate his own executive order (EO # 13775) by going outside the DOJ line of succession?
7
Stop the presses! Trump ignores laws! (/s for those who need it.)
4
I'd love to be a fly on the wall in the Oval Office today as Trump reads this op-ed co-written by Kellyanne Conway's husband. I doubt that Trump is taking it well...
8
@Chris Wildman
Chris, somehow I don't think Trump reads anything.
1
So, is anyone listening? Democrats? GOP? Anyone?
9
Someone get Whitaker a kangaroo suit.
Just as fascists abuse the processes of democracy to destroy democracy, so they abuse the letter of the law to destroy the rule of law.
9
Te attorney general is 7th in line of succession and would therefore need to be confirmed by the Senate being a principal officer
1
Elected Republicans have long since capitulated to the enemy at the gate; sniveling curs, all.
3
Could George Conway please slip this article under his wife's pillow? How can spouses have such diverse realities in the same household.
4
An innocent man hath nothing to fear. Yet, the world witnessed yesterday on national television a rabid man frothing at the mouth. Why do scared Donny?
9
Democrats; always complaining about something.
2
@Princess Leia Maybe because the collapse of the rule of law is worth complaining about. And instead of answering the complaint, you attack the people who make it, as if there were something wrong with them.
1
George Conway is a Republican.
It is sad to see America drowning in modern day fascism. I am praying for all those righteous Americans left in this mess.
5
Nice!
Beside the fact this is unconstitutional, this guy is a rip off artist just like donnie.
6
And the only body that can hold hi to account is the Senate, and they won’t.
4
Is it just me or does Matthew Whittaker resemble Wilson Fisk in Daredevil? Anyone out there agree?
4
Agree. Thought the same thing!
1
Will the Trump Supreme Court agree with you?
Mr Katyal and Mr Conway are either ignorant or deliberately trying to deceive. The DOJ has, years ago, determined that a temporary appointment to a "principle officer" position does, by it's temporary nature, not violate advise and consent provisions. This predates Trump by years.
Are the authors ignorant of this? If they are what business do they have being published in the NY Times. Very shoddy work by all.
3
Neal Katyal wrote the DOJ guidelines on this in 1999 when he worked there. I believe George Conway is a constitutional scholar. Pretty sure they are not ignorant of what they speak.
10
OK, I'm convinced. Now what?
5
Dumb question. Wouldn't the WH Council and even the former AG who just got fired be pointing this out to Trump ?
On another note: once more I'd like to express my continued dismay that a racist crooked, bankrupt businessman and former reality TV star is President of the United States.
7
This is gonna be like Nixon and his henchman attorney general John Mitchell all over again unless it's stopped NOW.
9
Much ado about nothing.
Constitutionally, the Executive and Legislative branches are separate. The Attorney General serves with the advice and consent of the Senate, yes, but there is NO reason why President Trump cannot himself de facto assume that role. The AG is under HIS authority and not the Senate's.
But you already knew this, didn't you, NYT?
1
Yes, it appears unconstitutional. Does anyone think Trump cares? Anyone? Bueller? Bueller?
2
What an amazing story line for the “As the Trumpworld Turns” soap opera: Will this piece, co-authored by George Conway, be Kryptonite to his wife Kellyanne’s rhetorical superpowers in this attempt by Trump to save himself from the one mortal threat to his presidency?
1
Rod Rosenstein is in line until there is a new AG approved by the Senate.
6
Can't wait to see Kellyanne Conway try dancing around this!
4
I can hear our Stalin now, in reply to the Vatican's criticism: "How many divisions do they have?"
Things must be really interesting at the Conway household. I'd love to be a fly on the wall. LOL
5
you can argue 1000 times at an intellectual level as an oped but damage has already been done. GOP leaders in the senate will not act on it. Trump has been enabled to do many unconstitutional things including sucking US ttreasure to make money on behalf of his company especially washington trump hotel. He iks demonizing his critics and rewarding his praisers like a dictator. Even if some one else as AG is chosen he will push it through the senate easily without any proper vetting like Kavanaugh.
3
Yet another aggression against Democracy and no voices from the “defenders of the constitution” (GOP) crying foul. Hateful this is.
6
A brilliant column!
Except for the howling error in the final paragraph.
The US Constitution is absolutely not a "bi-partisan" document.
It is an ANTI-partisan document.
The USA's founders were against political parties. and deliberately left them out of the Constitution. Here is what some of them had to say on the subject:
"Let me…warn you against the baneful effects of the spirit of party...[its] common and continual mischiefs ..make it the interest and duty of a wise people to discourage and restrain it...[Parties] are likely...to become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government" 1796)
George Washington, President, Constitutional Convention
Nothing could be more ill-judged than that intolerant spirit which has, at all times, characterized political parties (The Federalist #1, 1787).
“We are attempting, by this Constitution, to abolish factions, and to unite all parties for the general welfare.” (1788)
Alexander Hamilton, Constitutional Convention, delegate from New York
"I never submitted...my opinions to the creed of any party of men whatever, in religion, in philosophy, in politics, or in anything else, where I was capable of thinking for myself....The happiness of society depends...on preventing party spirit from infecting the common intercourse of life..." (1789, 1801)
Thomas Jefferson, lead author, Declaration of Independence
9
Chip, chip, chip ... that's the sound of Trump slowly destroying the Constitution piece by piece.
823
@Sparky Not just Trump, though. We're supposed to have protections from one man being able to do so. His base and Congressional Republicans are just as guilty as Trump.
86
@Sparky
Where were you folks when, say, the Obama Administration foisted the "Iran Deal" on the country by circumventing the constitutional process prescribed for the ratification of treaties?
Post-2010 the last Administration was occupied with circumventing constitutional process. That's what President Obama's business about "I have a phone and a pen" was all about: circumventing process.
President Obama would do this by appealing to his usual two-step. Step one: Ostentatioiusly say something that sounds truthy and constitutional as in "We are a nation of laws". Step two: Follow up with a statement completely contrary to the ostentatious proclamation of Step One as in "But in Congress will not act, then I must act. I have a phone and a pen."
Government by Executive Order is arbitrary government. It does not conform to the constitutional order.
And, pray tell, what constitutional processes have been undermined these last two years? Folks out of power have a way of pretending to rediscover an affection for constitutional order.
2
@Sparky
He wasn’t the first to mar the sculpture. In fact it was already getting lopsided by the chipping done by previous occupants of that office, including the One immediately prior.
another nail in Trump's coffin.....what a bozo.....constitutional or not....not a very smart move...but more evidence of the Trump arrogance......articles of impeachment coming...very appropriate too
3
Why isn't the NYT covering the protests to Trump's handling of this across the country??? Why is there always a news blackout on demonstrations?
8
Chris Christie or Rudy Giuliani for Attorney Genreal? Joke, bigger joke? Unfortunately, we are looking at a Constitutional Crisis, not a Classic Comedy Cartoon. When Trump is done throwing Trumpertantrums over the fact that he did, indeed, suffer some serious losses on Tuesday (and, to Jim Acosta, Yamiche Alcindor, and April Ryan, I extend sincere apologies on behalf of the decent people in the country who were horrified at Trump's attempt to distract, yet again) perhaps some responsible, moral grown-ups in his party (Are there any out there? Doubtful.) can help take the reins and steer this disaster of an administration back onto the track.
3
I haven't heard the calling for an independent council. It worked in Watergate trial with Ken Starr.
2
Can't wait to see how the "originalists" in congress and the judiciary like Thomas, Alito and Kavanaugh react to trump's brazen disregard for the constitution. Do I hear crickets?
12
Mueller and Rosenstein can rightfully reject any interference Whitaker may inject into the prob. Mueller may carry on his appointment and investigation, seeking a judicial declaration that Rosenstein, not Whitaker, is the only constitutionally authorized person to restrict the investigation. Great!...
Trumps end-run around the electoral process, firing Sessions not even before all of the votes are counted but simply after they were cast, reflects his disdain and pure contempt for congressional, constitutional, or election oversight of his frauds, thefts, and illegal presidency.
6
People are not seeing the bigger picture being played here by the novice chess players--Trump and Whitaker.
Whitaker has been installed temporarily to get the intelligence which Special Counsel Robert Mueller has obtained against this corrupt dictator in our White House. Whitaker has been installed to also kill the investigation from progressing any further.
We can feel secure that Mueller is a Master Class chess player who anticipated something similar to this monkey wrench being thrown into his very serious, thorough investigation into the corruption of this grifter, all three of his children, his son-in-law, and all of their U S. and international ties who have broken so many of our laws. Mueller has had sealed indictments just waiting for such an event as what was pulled yesterday with firing Session's and installing this "nobody."
Let the good times roll. As usual, Trump is his own worst enemy and there is a very likely chance that he just sped up the timeline for his ultimate demise as 45th President of these United States of America bypassing his 'get out of jail card' with Congress.
8
Well, Whitaker is in, so who is going to stop Trump?? Not the GOP Senate. That's for sure. Lindsey Graham is hiding lots and lots of stuff in his closet, he isn't going to stop this.
Only the Courts will and I don't trust Clarence Thomas to step on Trump. This is what happens when you don't trust your Supreme Court.
4
If Whittaker has not been approved by Congress, then legally, he is not "in" yet. It will be interesting to see how this plays out.
4
Having read through the readers' comments about this essay, I'm reminded of the film 'The Adventure of Sherlock Holmes' Smarter Brother'. The connection? A book cries to be written, entitled 'Machiavelli's Dumber Brother'.
The title character would of course be D.J. Trump.
We live in interesting times! How far will our very own George III go in his drive to seize all the marbles? Will the Senate and McConnell play along in ultimo? Will there be martial law? And if so, who will play the role of "Tank Man"?
Sic SemperTyrannis!
2
Not even Brazil is as banana republican as the US is right now. Think of all the presidents in Brazil brought down for corruption. Not one did what trump is doing right now.
Trump is a criminal. He’s got to go.
12
Trump and his vile Republican cohorts commit an unconstitutional act? Well, before this criminal act of abuse to our Constitution can be adjudicated upon, they're going to have to TAKE A NUMBER, aren't they? In other words, one of many (with more, alas, to come).
3
In Trump's defense, he doesn't know anything about government and has never read the Constitution.
8
Ignorance of the law is not a valid defence, especially for the president. He has a legal and moral responsibility to consult with experts before challenging the Constitution.
7
My question is: does an ACTING principal officer require Senate consent?
The Democrats should still seek in writing to protect Mueller regardless. Trump is attempting a Saturday night massacre...in slow motion.
6
@Steve Yes. Any "principal officer" (which includes the AG) is required to undergo an "advice and consent" vote by the Senate, regardless of when appointed (i.e., "recess appointment" is irrelevant in the case of a principal officer.)
Although not in the Constitution, Senate rules require that any nominee for a principal office must undergo rigorous "vetting", including full financial disclosure and other bona fides.
In short, it would take a blizzard of paperwork, many straight party line votes and a total suspension of conscience for Whittaker to be approved in less than at least a month. During that month (or longer) he'd have no more authority than you 'n' me.
2
A "loyal" acting attorney general is not an ethical lawyer.
10
Who would have thought trump would do anything illegal & unconstitutional??? The Senate & (Not So) Supreme Court will back him anyway. Have to prove the loyalty at all costs. trump will shut down Mr. Mueller before anyone has time to react.
1
The words in the headline and sub-head say it all: "unconstitutional," "evading the law"...
All part and parcel, of Trump's disdain for the law, legal processes, and democracy.
How in the world can the object of a criminal, civil, and treason investigation possibly claim that HE gets to pick who enforces the law?
Which of course means that there's NO enforcement when it comes to him and his family!
4
Waiting to hear Calabresi's strident disapproval of a much more egregious example of his principles being violated.
1
And where are the senators today? Why aren't they taking action to stop this unconstitutional illegal act by Trump? Where is McConnell? Cat got his tongue?
4
It’s glaringly obvious that Mr. Whitaker is disqualified from the position of AG by his prior public statements damning the special counsel’s investigation. He clearly exhibits a conflict of interest as regards the manner and scope of the inquiry, thus he should have no oversight responsibility. As bad as Sessions was, he at least had the integrity to recuse himself from the Mueller probe. Trump will never change. He is a third rate Putin wannabe and as he sinks into the sludge of his own history he will gladly take our republic down with him.
The only question now is, will the Senate, under the despicable McConnell, perform their constitutional duty? I am not holding my breath for that.
6
With Trump's unconstitutional installation of a 'loyalist' (ahem, minion) attorney general, we now have a wolf guarding the sheep guarding the wolf. How secure for all of us and our democracy and the rule of law. Just fantastic.
5
Yeah, but, does anyone in Washington care about the law any more? Please tell me there is hope.
4
Hey, I just heard Jerald Nadler respond to Trump's threat of the Senate investigating Congressional Democrats by saying, "They can investigate all they want; they're not going to find anything." See, Prez? THAT is how innocent people act.
8
So, now I have to ask...are we sure Justice Ruth Bader Ginsberg wasn't pushed?
9
Whitaker was involved in a major banking corporate affair in South Florida before becoming Session's Assistant.
3
Is there precedent for appointment of a non-sentate confirmed Attorney General?
So then is the National Security Advisor an unconstitutional position?
I just found out that the National Security Advisor is not a principal officer, and so is not unconstitutional. But it is an important position and deserves confirmation by the Senate.
1
"Neal K. Katyal (@neal_katyal) was an acting solicitor general under President Barack Obama"
All I needed to know. This is a partisan piece and tells me nothing about whether the Trump action was constitutional or not.
1
Who he previously worked for is totally irrelevant. The Constitution is crystal clear on this point. The appointment of the attorney general MUST be approved by Congress. When Trump became president, he wore an oath to uphold the Constitution. He must now stand by that oath and seek the approval of Congress. Your personal opinion of Obama or Trump have no bearing on this point.
4
@Ludwig
And George T. Conway III is the husband of Kellyanne Conway.
Partisan piece my foot.
7
@Ludwig
Excuse me? Did you see who the co-writer is?
7
"...Because Mr. Whitaker has not undergone the process of Senate confirmation, there has been no mechanism for scrutinizing whether he has the character and ability to evenhandedly enforce the law in a position of such grave responsibility. The public is entitled to that assurance...
So - assume the Kavanaugh hearing was a shining recent example of such scrutiny...
And your ambulance-chasing colleague a shining recent example of how your profession self-enforces ethical behavior – given such grave responsibility...
.....
Thought the precedent in such situations was to just get some traffic court judge in Seattle to issue an injunction prohibiting Whitaker from taking on the job...Or taking in his next breath...Or whatever...
For clarity, had given CBF a pass on mistaken identity...
After all was said and done – looked more like a least-likely-to-be-disproven synthetic narrative based on the (other) drunken lout's book...
Came out of things thinking more highly of Grassley – and less so of Feinstein, Booker, and Harris...
Though that’d make a splendid troikan billboard moniker for an ambulance-chasing law firm...
Appearances do have impact. This guy has all the physical charm of a professional wrestler. Is he a nice guy after all or another Trump loudmouth? When will he start becoming a Fox News regular?
3
So, just who is going to give the house and senate a shout out to let them know that t-Rump is back at more illegal stuff. Now that the Dems are a few more than before, let's get their ear and stop the pipe line from Mueller to t-Rump before it is too late. Act now. Our democracy depends on it.
3
Mr. Trump is channeling Andrew Johnson and will be impeached, just like he was.
2
I doubt Trump knows or cares about anything in the Constitution.
4
My guess is Trump and Co.'s attitude is, "So what? Take us to court." McConnell's spine must be like his chin--non-existent. They'll just rubber stamp this one in the middle of the night. January can't come soon enough.
2
It's pretty clear to me that Donald McGahn's departure as White House Counsel left a rather large and gaping hole in legal advice for the POTUS.
Here we go, just like an unguided missile.
1
So what. What are you going to do about it... Nothing. The Rdpublicans won't challenge it, the Democrats won't challenge it, the lawyers in the Justice Dept won't protest
So again, I say so what. If there is no mechanism to stop an illegal act, is it illegal?
I gave up thinking that the rule of law applied to this tyrant or republicans starting with Merrick Garland.
Laws and norms only apply to Democrats.
5
We've let this man run rough shod over us for 2 years and now you say he's doing something unconstitutional? Was putting children in concentration camps constitutional? Did they get the 5th Amendment guarantee of not having the government take their life, liberty, or property "without due process of law"? Did he give up running his business as the Constitution demands? NO. Now you want him to obey the constitution. You're a few years too late.
3
Trump always act like an owner of the USA;this guy is utterly unfit for a president and he is destroying the country day by day...
1
What is everyone complaining about? This article can be written. We can comment on it without fear of arrest or being murdered. At least for now.
1
Read "Article II, the Vacancies Act and the Appointmentof “Acting” Executive Branch Officials" in the 1998 Washington University Law Review, and 5 U.S. Code § 3345-3349 referenced therein.
1
Sorry, most people don’t care.
You may not care. The fact that there are a thousand comments here indicates that a lot of people do care if Trump tries to defy the Constitution. You should care.
4
The point of the plain language of the US Constitution is that the "principal officers" of the United States must be named by the President (which has occurred) and confirmed by the Senate (has not happened on this plane of reality). Elsewhere the Constitution makes provision for two exceptions. One exception is for war, which is not currently happening. The other is for when the Senate is in recess more than just a few days. McConnell has seen to it that this is not the case. The Senate goes in and out of hokey scheduling (two Senators gavel the chamber in order often enough that officially it's in order), even though most GOP
Senators are gone, spending time with their families or their contributors or their mistresses, whichever they prefer. So that does not apply. Officially the Senate is in session and so a recess appointment is not available. Even if a recess appointment was available, the appointment would expire early in January.
3
Who now can challenge this appointment officially and get an interpretation other than the Supreme Court. Who has standing to make that challenge and appeal this highly questionable appointment?
3
Just add this to the long list of Trump's actions that are unconstitutional. The grounds for impeachment grows with everyday he is in office.
3
I know a lot of legal professionals are following this, I have a couple of questions. Would the general public be within their rights to file mass ethics violations with the American Bar Association for mis representation on their behalf, since the attorney general is an employee of the country and not the president's personal attorney? Disbarment would take the attorney out of attorney general. Second question, would he be allowed to function as an attorney general if he were not an attorney?
3
The ABA does not disbar attorneys.
So what are you people down there in Trumpland going to do about this?
Nothing, I expect.
There will be huffing and puffing from both sides of the political spectrum, bloviating and pomposity from the media's talking heads, with lawyers delving into the legal weeds to defend or attack Trump, along with the uselessly passionate recourse to social media by all and sundry.
Meanwhile Trump will continue to defile the Constitution, confident in the knowledge that he will be able to move unhindered behind all the hoo-hah he's unleashed to achieve his aim of one-man rule in America.
2
I do not believe Mr. Trump understands or cares to follow the law unless it suits him. He believes that anything that goes against his wishes, like recusing yourself when required by law, is a personal betrayal and an act of war. He is going to push our government to the limit, with his hubris.
2
The Constitution, don't you know, is just a document with a lot of suggestions for good government that can be ignored when convenient.
2
Seems like a tempest in a teapot. Sessions has clearly been on his way out for a long time. My impression is that it is hardly unusual for a president to appoint an "acting" principal officer to run a department while taking time to choose a permanent replacement with the advice and consent of the Senate.
I'm sure Trump already has someone in mind. The question is how quickly he moves to send a name to the Senate. Presumably he will want to sit down with his pick and make sure he's getting a toady. Sessions was evil enough, but not obedient enough, for the job.
1
@Thomas L. Knapp -- I suspect Trump is waiting for the far more comfortable margin of control in the Senate he'll have in January, before an appointment he knows will generate maximum political noise.
Okay, I agree. Case closed. How do we get the guy out of there?
2
thanks for this enlightening article. So is the US congress stand up to defend the constitution? I am certain McConnell and GOP senates won't do anything as they are busy kissing up to Trump. I hope there are adults in the congress to stand against the ignorance and unruliness of Donald Trump.
How about that. Who said that Trump was NOT above the law, according to his abusing the power with no apparent consequences? He appointed, without Congress's input, Mr Whitaker, as the faithful vehicle to do his bidding, the disembowelment of Mr Mueller;s investigation. And why, exactly? Because Trump is wetting his pants, scared crazy of being indicted for obstructing justice. Conniving, at the end, doesn't pay.
1
"The Office of Legal Counsel has opined that someone acting in the role of a principal officer is nonetheless an inferior officer and, thus, does not require appointment by and with the advice and consent of the Senate in light of the temporary nature of the assigned duties."
That seems particularly on point as it destroys the authors main point about the acting AG being a "principle officer".
This not nearly as clear cut as the authors so disingenuously state. Trump may very well be on firm ground,
Wouldn't it be nice if people making such inflammatory charges at least tip their hat by at least alluding to the fact that what they are saying is not universally agreed to be true? Rather makes me think they seek to deceive rather than to illuminate.
1
Are we ever going to reach a point at which our president has to obey the law? Or does the law simply not matter so much any more?
2
Okay, I agree. Case closed. How do we get the guy out of there?
Clarence Thomas will be the first to tell you that his views limiting power only are relevant to Democratic actions. His words of executive limits do not apply when Republicans and especially Trump are in office. Silly!
2
Yes, the president can put Whitaker in at AG, but may ultimately be impeached for obstruction. There's a better way, appoint Sen. Lindsey Graham at AG. He can probably get confirmed before Thanksgiving.
1
This is by-the-book Trump, the same Donald that told the russians in the oval office that he was under alot of pressure so he had to fire the FBI director. It's Trump we are talking about, he wants to see the Russia probe go away. You can see it coming from a mile away, and yes, it is unconstitutional.
The purpose of Rod Rosenstein is to be the acting AG until a new one is found, not some MAGA hat-wearing clerk in Sessions office.
I predict is going to get much worse going forward between now and january.
2
Nice argument, but it's a good question whether the current Senate would actually be perfectly OK confirming this flunky. Susan Collins and Jeff Flake would publicly agonize, and then go ahead and vote for him. And that's if Mitch McConnell didn't pull his "will of the people" routine again and say it had to wait till January, when the Republican majority will be larger and more rabid.
Your thought process would be correct if he were permanent. He is named Interim, and pending a permanent appointment and Senate confirmation. No story here, kids, bring your outrage elsewhere. next.
2
@Joe yohka Your snide, insulting tone does you no credit. You've not answered the arguments in the article, only attacked those who disagree with you. Bullying isn't legitimate discourse.
Matthew Whitaker, the Devin Nunes of the Justice Department. So amazing that it is under Republicans that our democracy is being shredded and rapidly turned into a country being not about the law/Constitution but rather about a king.
5
Is anyone else concerned that since whitaker is a trump synchopant that his sole purpose is to be briefed on the investigation, then turn over the info to trump and his attys and then it does not make a difference if whitaker, resigns or recuses himself. It does not appear that Whitaker will have any independence from trump
3
If this appointment is unconstitutional, then what interventions need to come next?? And by whom??
1
We can argue about what is and isn't constitutional, but obviously the framers never intended for the President to be his own prosecutor, judge and jury, especially when he is manifestly a foreign agent. We are living through a hitherto slow-moving coup d'etat that is picking up steam.
3
The only question in my mind is: what can be done about it?
5
By Trumps interpretation of his appointment powers he could, if he wanted to, appoint Sean Hannity AG.
4
What can we do?! I'll go to the protest tonite but don't think that's going to matter to a cornered nihilistic narcissist. We'll turn out but it's not like the 60s when we were in the streets, it hadn't really been done before so systematically (still took long time to stop the war & civil rights weren't automatically granted). Has a '68 feel to it though, x10.
This is a constitutional crisis, we're not waiting for one we're in it.
GOP Congress majority: protect from enemies from within as well as without. Protect your country!
Press please stick together, don't allow bullying of any reporter & don't take DT's bait to distract.
3
So does that mean if Whitaker attempts to stymie Murklerborvfire him, he can legally ignore him or file a lawsuit?
Anybody have standing to file?
1
Matthew Whitaker is now listed as #7 in the line of succession to the president. He has no senate confirmation and no known qualifications except his willingness to interfere with an investigation of the "president" who installed him in the position, despite the availability of the (senate-confirmed, obviously next in line) Deputy AG.
If you don't smell a rat, there's something wrong with your nose.
5
@DoTheMath -- "Matthew Whitaker is now listed as #7 in the line of succession to the president."
No, he is not. He's only "acting," not the holder of the office.
This is a question. Has this kind of forced resignation then appointment been done before by any president?
The Solicitor General has a serious conflict of interest. CREW uncovered a previously-undisclosed ethics waiver that would potentially clear Solicitor General Noel Francisco to oversee Special Counsel Mueller’s investigation if Deputy Attorney General Rod Rosenstein resigns or is fired.
Francisco’s former law firm, Jones Day, represents the Trump Presidential Campaign in the Special Counsel investigation, and the firm owes Francisco more than half a million dollars. Because of these ties, Francisco had previously signed an ethics pledge that would have required him to stay out of any investigation in which Jones Day represents a client for two years after joining the administration.
However, this waiver, dated April 24, 2018, relieves Francisco from the pledge to recuse himself from investigations in which Jones Day represents a client, nearly a year before the pledge would have expired. The waiver includes no justification for this reversal, and was not disclosed on the Office of Government Ethics’ online list of ethics pledge waivers until days after CREW made the discovery.
This means that if Rod Rosenstein is fired or resigns, one of the obstacles to Francisco replacing him as the official overseeing the Russia investigation has already been removed. It also means that conflicts of interest are being ignored.
No surprise in the Trump Administration.
2
Okay, Mr. Whitaker needs confirmation.
So now the question is: does he like beer?
1
Dear Mr. Mueller, I hope you and all your staff have everything under lock and key. Kindly fail to report your progress to Mr. Whitaker. A grateful nation will understand.
4
Do voters who booted out mcaskill care? What about those that voted in ted Cruz? I'm sorry, but apparently constitutionality and propriety are not major issues
2
The New York Times casually dismisses the law on interim appointments in regard to the new acting Attorney General Matthew Whitaker offering an apples and oranges comparison between previously confirmed Whittaker and a never confirmed NLRB General Attorney.
Whittaker was confirmed Attorney General for the Southern District of Iowa by a voice vote of the 108th Senate in 2004 including Chuck Schmer (D-NY), Feinstein (D-CA) and Durbin (D-IL). The statute is silent as to whether the interim appointment must still be serving in the same position.
New York Times editors would have no objection at all if Trump selected James Comey, Andrew McCabe, or Sally Yates as interim Attorney General.
42 U.S. Code § 7342 - Interim appointments
In the event that one or more officers required by this chapter to be appointed by and with the advice and consent of the Senate shall not have entered upon office on October 1, 1977, the President may designate any officer, whose appointment was required to be made, by and with the advice and consent of the Senate, and who was such an officer immediately prior to October 1, 1977, to act in such office until the office is filled as provided in this chapter. While so acting such persons shall receive compensation at the rates provided by this chapter for the respective offices in which they act.
1
Talbot has it right: There is a long history of Temporary Acting Attorneys General, going back 55 years. This Op-Ed would be stronger if it addressed that. Some slack in the joints is fine. But if Whitaker was used for something very significant, then I'd agree a constitutional challenge would be in order. I.e., This is not facially unconstitutional, but as applied it can be.
1
Whittaker is not confirmed by the Senate, and must step down.
There is a huge, HUGE, conflict of interest in this appointment.
We need to proceed with the rule of law, not the rule of Trump. I just returned from a vigil in Brunswick, Maine, where we all gathered at 5pm local time, to "Protect Mueller."
3
So which branch among the vaunted separate powers bears responsibility for filing lawsuits to challenge this unconstitutional appointment. Until there is an office of the Ombudsman, it looks to me like it will fall, yet again, to us, the People.
Put him in front of the Senate. What makes anyone think that body, as currently construed or how it will be construed in the coming months, will perform its oversight duties as stipulated by the Constitution? Especially since they’ve been absent thus far.
2
Where were the authors when Sally Yates was appointed Acting AG?
Constitutional?
True, she was previously approved for Deputy AG, but that makes no difference, any more than the fact that Kavanaugh's earlier confirmation as an Appeals Court judge gave him a free pass to skip confirmation.
3
What Trump understands, and apparently no one else is TIME DELAY.
He does X and by the time the courts adjudicate, it's a year later. TOO LATE.
We need an EMERGENCY RULING.
1
Then, some entity needs to sue the United States and bring this to judicial review.
1
Trump is challenging and making a mockery of laws each day, yet the law has not been able to stop him. What’s the point if these discussions are merely theoretical fodder for legal scholars?
4
@kat perkins
What's the difference, trump could declare a "National Emergency" and suspend the Constitution. Legal? No.
But that's never stopped trump before so why would anyone expect anything different?
At this stage in our country's history, the Constitution is the only thing saving us from tyranny. Even Jeff Sessions recognized this. The Nations Founders provided the structure for government, but only if the people continue to support it will our nation survive.
2
Yes, it is very concerning and disturbing. But in the end, if Trump had followed the law and had Whitaker's appointment confirmed by the Senate, he would have been confirmed. Understood that the Presindent should not be permitted to ignore laws; his actions are disturbing. But the end result is going to be the same. A person's character no longer matters to serving in a public office. America accepts morally bankrupt and financially bankrupt leaders.
The news of the day that disturbs me much more than Whitaker's appointment is the revoking of credentials of one of the members of the White House press corps. Control of the press is the first step in creating an autocracy. We are headed down a dangerous path as a nation that we may not be able to reverse.
8
@justagirlfrmOH - Have a look at SA , your comment on leaders applies to the entire government.
“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.”
Does Trump care? Who is going to make Trump act in a constitutional fashion? What if Trump refuses or ignores his responsibility to act legally? How can we ameliorate this abuse of presidential excess?
3
But the Senate is held firmly by Republicans. Not sure going through the senate would be any different than not.
3
Nothing will happen about this obviously unconstitutional behavior until after Jan 3.
Republicans who wish to keep their jobs and their careers under Emperor Trump have learned that their job is not to advise the President, but to run interference for him in implementing his every whim, legal, constitutional or not.
That is the role Michael Cohen filled as Donald Trump's "personal lawyer". Cohen was not a real lawyer, but a "fixer" in most people's lexicon. He didn't advise Trump on the law, he simply did everything he could to "fix" the illegal situations Trump got into. Trump could afford to pay, which means do anything he wants.
3
When the Senate is not in session, the President is entitled to make a recess appointment. The appointment remains un place until a new Senate is seated in January.
In contrast, and what Justice Thomas spoke to in his criticism, is that Obama made his recess appointment to the NLRB while Congress was in session, not in recess.
Obama could have made a recess appointment of Merrick Garland had he wanted, but he preferred to rile up his followers.
This article constitutes fake news. The leftist lawyers are telling a lie when they say Trump cannot make a recess appointment, and equating it to Obama making recess appointments when Congress was in session.
When the Democrats attain the majority in January, if they choose, they will be able to prevent Trump from making any recess appointments by never officially going out of session, a device Democrats invented during the Bush administration.
1
@ebmem, I assure you that George Conway, whose wife is Kellyanne Conway, is no leftist lawyer.
3
It is important that we recognize this is an opinion from a single legal scholar, as evidenced by its appearance in the opinion section. Therefore the claim that this somehow represents “fake news” is just that- fake!
Could you please provide a source?
1
Sally Yates was confirmed by the Senate. On May 13, 2015, the United States Senate voted 84–12 to confirm Yates as Deputy Attorney General of the United States.
The US Constitution is pretty clear. A principal officer (one who only reports to the President) must have the confirmation of the Senate. The appointment of Mr. Whitaker, by King Trump is "UNCONSTITUTIONAL".
Sounds like it's time to pass this up to the Supreme Court.
2
Laws have become increasingly irrelevant. The previous question asked was, "What is the law? Is x legal?" Now, the question most asked by Republicans is, "What do we want and what law can we use to get it?" No voter should silently stand by and watch as the Constitution is trampled and its intentions distorted. We should insist that the law be followed. However, unless there are more Republican Senators who plan to retire and therefore, decide they have little to lose, Congress will continue to back Trump. "So sad, so pitiful, such losers, so incompetent," as Trump would say.
4
I'm curious: even if, as the authors claim, Trump's action is unconstitutional, how will this get translated into action? We've seen so many breaches of policy, law, constitutionality, not to mention common decency...
Nothing happens, NOTHING HAPPENS.
The president and his buddies in the GOP-controlled Senate go on and on doing whatever they want. As do the enablers in the White House, including the wife of Mr. George T. Conway III.
I supposed if they were asked, they would all say they were just following orders.
We the people are not all stupid, and this shell game that's being played in our faces is getting beyond disgusting.
3
I just can't figure out how the general counsel of the NLRB is considered a 'principal' employee.
George Conway seems to be a very ethical person. How he stays married to Kellyanne, who has no ethics, is sad & appalling.
10
"For the president to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document," you write.
Are you expecting Mr. Trump to be more reverent towards enforcing the law than to the law itself?
The immediate situation may be of more concern, but he did worse just a couple of weeks ago. A president who believes an executive order can override one of its amendments either doesn't grasp the whole idea of having a constitution or doesn't care. Or understand any part of the process or why this country doesn't let a law be something that exists only in a president's mind.
By the same logic, non-drinker Trump could overrule the amendment necessary to void the amendment that prohibited alcohol manufacture and sales. Hey, Brett Kavenaugh (or any other GOP attorney who is not a non-drinker), would that hit closer to home?
The authors of this piece should not be, but have been, outliers in the GOP legal community. If anybody thinks it's beyond ridiculous to imagine a president could even think about issuing an order to switch two to twenty in the amendment about presidential terms or add "dog" between 18 and years of the youth voting amendment, well, yes.
1
It is clear the people who support, work for or voted for Trump see no issue with his corrupt path to maintain power. His 40 to 45 percent of approving people are themselves complicit. They clear the way for his lawlessness and they think it is funny. They are entertained by this overt corruption. I met two of them at a party last weekend and they were genuinely hurt when the rest of the group gave them the cold shoulder after hearing their unguarded opinion of Mueller.
7
This beautifully-argued article brings to mind the fact that a president should be able to make good arguments to the people.
Trump is incapable of an extended line of reasoning. He has the cognitive focus of a TV viewer. For him—and his base—persuasion hinges on degree of spectacle
Indeed, mental competence isn't a requirement for being awarded the presidency. I don't say that merely as cynical comment. "We, the people" don't have to be deliberative to cast a vote. Last-minute campaign ads work just fine.
But the serious dimension is that the power of the presidency is supposed to be ENTRUSTABLE to the candidate/president, which presumes trustworthiness: reliability of competence.
We don't have that. We have, as Tom Friedman wrote last week, "a disturbed man," proven again yesterday in his press conference.
How do we ensure competence for elected office when marketing wins elections and consumers can vote for whatever knee-jerk "reason" they choose?
Ok. So who is going to take this issue to Federal Court?
4
An excellent essay. The Constitution is not just in shreds, it has been dissolved. Therefore, there is no United States. We were conceived as a country united by our agreement to live under the authority of a _document_: The Constitution. We don't need to secede because there's nothing there to secede from. But we do need to set up escrow accounts so that all payments to the federal government, taxes, withholding, etc. etc. are safe from those for whose will to 'preserve, protect and defend the Constitution' is nil.
Is there anything more transparent and corrupt than the president essentially putting into position a prosecutor to oversee his own case? And further, a prosecutor who has declared his disagreement with the investigation?
I guess this president can step over the line unless ad until members of his own party stand up to this abuse of power. Is he so deluded that he thinks his actions will go unnoticed and permitted? And will that be the case?
1
Thank you Mr. Conway and Mr. Katyal. Two amazing constitutional minds working together for the greater good.
We need the Senate to stand up to this abuse.
2
Since when did Trump care if something was unconstitutional or not? He obviously feels emboldened to do whatever he feels like doing. I don't know what Bob Mueller's plans or findings are, but obviously they have Trump running scared. I thought Tuesday would have been more solidly against the Republicans; I guess people like corruption and racism.
Will it matter that this appointment defies the checks and balances in the Constitution --- if the courts and the SC don't rule it as such?
Your rights, freedoms, and laws are only as good as the judges who uphold them.
Holding lawbreakers in high office accountable is only as good as the Attorney Generals who prosecute them (or not).
Remember this next time you're voting for a president who will fill lower courts. Remember this when you're voting for a Senator who will vote on SCJs. Stay informed. Your vote matters. Every time.
1
Well done.
You expose Mr. Whitaker's shame appointment as nothing less than attempted coup - an overthrow of our constitutional government.
We need to continue to call it an attempted coup.
That will help us start to understand and accept what we may need to rein it in.
3
Rules and ethics no longer matter, the only thing that matters is what Trump wants and he seems to be able to get away with anything and the Republicans who still control everything don't care. I just can not believe what is happening to this country. Where are the marches? Where is the outcry from the public? Crickets. Folks we are on our way to an autocracy.
It’s impossible to overstate how dire this situation is. The rule of law is becoming the rule of Trump.
3
A fly on the wall of Kellyanne and George Conway III’s private residence must feel like polarized dead meat. Their marriage survives, even flourishes, as two giant, industrial magnets slam together in an attraction of opposites.
Both of the Conways are lawyers, and both originally liked Trump.
Kellyanne’s paycheck requires Presidental approval.
George Conway III now trolls Trump with the truth while he works as a Washington litigator.
George Conway III believes that the president’s appointment of acting Attorney General Mathew Whitaker is illegal, and he has the Appointments Clause in our Constitution to back him up. Whitaker, as a principal officer answering directly to the President of the United States, must be confirmed by the Senate.
Litigator George might win the argument in his household, maybe not.
In the White House, however, he’s polarized dead meat. There is only room for one ruler in the Oval Office, and he speaks loudly and carries a large flyswatter (my apologies to Teddy Roosevelt).
I thank the authors and the people commenting here in agreement with them. It is again cold comfort but still some comfort to know that there are some people--likely many concerned citizens--who are still willing to voice defense of the rule of law, in respect for the Constitution. Trump will never change. He will not stop his aggressive trampling of the Constitution, at the very least through a seemingly endless attempt at covering things up, until his is stopped through all lawful means. This monstrosity squatting in the Oval Office must be gone, a.s.a.p.
This is how American democracy dies. Like a frog in a saucer with the hatred, fear, and willful ignorance of nearly half our people slowly incited to boiling.
Trump's fans and the Trump GOP have shown no concern for the Constitution, much less the brilliant checks and balances in it that have, until now, kept our government strong and fair. The founding fathers seem not to have considered that an entire party would put personal power and wealth above country to follow an autocratic fool styled after the worst of the cruel, incompetent royals we founded this country to escape.
3
Everything donald trump does is illegal and unconstitutional .
Lie after lie as if he is the Monarch .
He needs to know that he works for us not the other way around.
4
America will either continue as a democratic republic with a constitution, or it will have a KING named Donald, who is above the law.
Even if Trump fires every employee in the FBI and the Justice Department, and every Republican in Congress remains too treasonous, frightened and corrupt to act, the evidence has been gathered and will come out, just as it always eventually does. The career Justice Department agents who are faithful to the Constitutional oath that they swore will leak like the Titanic, but its Trump that will sink. His presidency is toast, no matter what and Americans will punish his Republican accomplices.
1
I think this president has assaulted the norms and protocols of our government daily. The question is, at what point does Senator Grassley make a call and inform the president that he is infringing on his rights as an elected US Senator and the Chairman of the Judiciary Committee. Was Grassley even consulted on this appointment? If not, then we have more than just a constitutional problem, we have a president who will act unilaterally and complete disregard an entire branch of government. That is both reckless and corrodes the very checks and balances enshrined in the Constitution which he swore to uphold and defend.
Oh dear. Poor Mr Trump. Clearly he is innocent of any wrongdoing in the context of Mr Mueller's investigation. So why is he so concerned about the conclusions Mr Mueller may come up with? Why doesn't he relax and wait for Mr Mueller's report which should be nothing beyond a stack of empty pages? OK, the investigation has cost and continues to cost a bunch of public money, and we all hate government waste, but is it much more than a couple of round trips to Mar E Largo, or whatever it's called?
To the credit of the Mueller inquiry it has been remarkably leak proof. I imagine that will change now given that the protections provided by Sessions and Rosenstein have been torn away.
With all due respect @Barooby as they say your argument is like 'the dog that does not hunt'.
The previous AG's firing without cause precipitated the need for an appointment and there are constitutionally compliant individuals available in succession to fill the role. The president's selection is not compliant.
The president's choice can be brought into compliance through the senate approval process. Proceed with that process and don't assume the outcome. In sports, the game's outcome can be hypothesized like number 2 Kentucky beating number 4 Duke (NCAA basketball)(and getting well beaten instead) but the game needs to be played. Play it.
First step before anything would be to have an ethics review of the non-compliant individual. When is that review and who will be able to review the results? Congress needs to get on this, stat! Clarify this ambiguity.
Finally, if the reason that the two individuals that are qualified already have not been appointed, force the political issue. Maybe the appointment was made in this way because those two individuals will have a change of role or position soon themselves. Force the issue. As my father used to say, 'punch the bully in the nose first and take the beating that ensues...he will not bother you after that.'
Good luck or as Mueller would say, 'what have we got planned for tomorrow...'
To our new Congressional representatives. We voted for you as a check on this hostile authoritarian regime.
This is a demented man's game for Trump to play - he even declared as much.
But he is not entitled to toy with our democracy.
Even if they volunteer and present their terms to make it appear as though they are cooperating, surely you've caught on by now that they're not.you must subpoena his son, his son-in-law, Giuliani, Roger Stone, and Jeff Sessions, his former counsel, and and t his mad king TO TESTIFY UNDER OATH -and get all documents from Mueller, now.
What are you gonna do about it, take your argument to the Supreme Court? And then what? I don't think anyone gets it, Trump can do, say, what ever he pleases, he's waiting for someone to stop him, and he doesn't think anyone can. after all he's now declaring war on the United Staes Congress. Yes he means it!
5
It is crucial that Constitutional experts address this crisis. It is a crisis because of the President and those who support him believe that he is a king and not the President of the oldest democracy. Kings can make up anything that they want, say anything that they want and contradict evidence, facts, and reality itself because they and their supporters are delusional imagining authority that does not exist except through brutality and force as in Saudi Arabia. God is frequently invoked as the author of their authority and who can contradict god?
If Trump’s ignorance of the Constitution is a sufficient reason to discard the Constitutional requirements is he and are his supporters“domestic enemies”? Are all officials who swore to protect and defend the Constitution compelled to arrest Trump and his supporters? We are still a country of Laws as long as we confront men who place themselves above Law.
Whittaker is a sycophant unfit to sit in the DOJ under any guise. He is invalid. Any action he takes is invalid. His appointment is obstruction of justice.
2
Can nothing be done when the President fails to carry out his oath of office? To, "...the best of my Ability, preserve, protect and defend the Constitution of the United States."
2
Nobody is saying it yet, but all things considered, we are in a full-fledged constitutional crisis.
3
Sessions was on the chopping block for at least a year. Trump had more than sufficient time to appoint a permanent replacement. He chose this route for reasons that are obvious. Whitaker and Trump share disdain for Mueller and his probe.
1
Oath of office of the President of the United States: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States." Trump's only defense: "to the best of my Ability."
Trump doesn't care about the law. Trump doesn't care about the Constitution. Trump makes things up as he goes along to suit his own personal immediate need.
2
Law Professor Lawrence Tribe, from Harvard, said this morning the appointment is illegal. Good enough for this non-lawyer.
3
Well, how grave a situation this is.
A president has appointed an acting Attorney General, and two lawyers who are partisan Democrats are here to help us understand how evil Trump is for doing such a thing.
It would be more impressive, if they had also spoken up when Sally Yates was made acting Attorney General without a Senate hearing.
But they didn't.
Because, she was one of "ours" and not one of "theirs".
I am amazed that these two hypocrites got any editorial space.
First, Sally Yates was confirmed by the Senate. Also, one of the co-writers of this opinion piece, George Conway, is a conservative. His wife is Kellyanne Conway who works for the Trump Administration.
It is interesting that you assumed that both writers were Democrats. It is possible -- and common -- for Republicans to disagree with Donald Trump's decisions, his attacks on the press, and his inflammatory remarks. Every American, regardless of party, should be concerned about a president who seems to disregard our constitution and our laws.
Not only...but also.
The attorney general is #7 in the list of presidential succession. How about them apples?
1
Is it a must that a President appoint a cabinet secretary? Can he run it himself?
I noticed how these two political lawyers, one an Obama admin lackey, glossed over the Federal Vacancies Reform Act (FVRA), the controlling legal authority in this case. There's nothing unconstitutional about Whitaker's appointment.
1
Seems right. But the Yates case is inapposite. Like Kavanaugh, approval for a lower status position doesn’t count.
Excellent article. My thoughts:
All of this is extremely concerning and disturbing. It is reaching a level now where all reasonable and rational Americans need to stand up - let alone the Republican lawmakers in Congress and elsewhere who are paid and have sworn an oath to do do.
It is time to stand up for our country, placing and demanding country over party - country over ideology. No one man shall be allowed to circumvent the laws and the constitutional protections we enjoy and which have made this country the envy of the world.
Justice must prevail if crimes have been committed, A fair level playing field is required - if no crimes are found then rejoice and breath a sigh of relief.
I stared at the flag today blowing in the wind outside my home. My mind thought of all those who have fought and died for my right to fly it proudly. What it means to me and how lucky I am to be an American. It is now time for all of us to collectively protect and preserve our constitution and our ideals. The time has come.
3
Must be said again: for an innocent man, Trump sure is acting guilty...to the point of abdicating his responsibilities as president and making decisions based solely on his own personal interest, not that of the country. Regardless, based on prior statements, Whitaker must recuse himself.
7
If the appointment is unconstitutional that is interesting but irrelevant.
Which federal judge is going to issue an injunction? Who is going to bring suit? Will the Supreme Court uphold it? Will the Senate just pass it anyhow?
Constitutionality doesn't matter much unless someone cares about the rule of law. The only time the GOP gets hopped up about the rule of law is in immigration rants.
1
This is an informative and cogent piece - I very much appreciated reading it.
To say that "Constitutionally, Matthew Whitaker is a nobody" seems a bit over the top. The authors' excellent case would have stood just as well without it.
1
I read this article, and the other about Kemp in Georgia, and I reflect on Trump's outburst against the press yesterday and I have to think, this is how our democracy dies, stitch by stitch. How do we pull out of this nosedive?
12
Appointing an acting attorney general is not unconstitutional. Period.
4
Pretty explicit examples.....normally the next in line who was confirmed by the Senate would be acting AG. What could be Trump's motivation for not doing that?
1
@Thomas Smith Did you bother to read the article to find out why they say this appointment is unconstitutional?
3
Question: If the authors are correct, who then has the standing to file the suit for an injunction against this illegal appointment (I'm not a lawyer) and how soon can it occur? Maybe direct to Justice Thomas? This is the only way we find out.
Whenever he could, or even when he could not, Mr. Trump has tried to hoodwink the Constitution. Since there is no mechanism provided by the Constitution to quickly restrain him, it devolves on the Senate to be vigilant and promptly step in to exercise its authority and responsibility. Mr. McConnell tends to be asleep at the wheel whenever Mr. Trump exhibits erratic behavior which is not infrequent.
By appointing Mr. Matthew Whitaker as Acting Attorney General without the consent of the Senate, Mr. Trump has resorted to bypassing the Constitution in order to muzzle Mr. Robert S. Mueller III, the Special Consul.
The public is correctly abhorrent of Mr. Trump acting outside of his Constitutional authority. He must remember that he is not a monarch; he is the President of the Republic with a written Constitution.
6
It is very likely that Donald Trump has not read the Constitution of the United States. If he has read it he may not have understood it. To be reliant on staff is one thing, to be flying bind is another. Matters have become serious and dangerous and this danger can no longer be ignored or tolerated.
6
Progressives love using the courts to get what they can't get at the ballot box.
So, by all means, bring a lawsuit.
It ought to be settled by the time Trump is sworn in for a second term.
1
George Conway is no progressive. He is, however, an American who has actually read the Constitution.
4
@Senate27
Well those pesky progressives won't be able to bother Trump much more. He's stacking the courts with Republican loyalists. Lucky you. Unlucky America.
@Senate27
"Progressives love using the courts to get what they can't get at the ballot box."
The current crop of Republicans love getting what they want through brute force. Merrick Garland, for example. Pure power plays, the Constitution (and precedent and institutions) be damned.
Can we get away with it? Great, let's do it. Thanks, Machiavelli. Just remember, what comes around, goes around.
I thought you GOP'ers loved the Constitution. That false claim is out the window, along with the "Party of Fiscal Responsibility" mantle you all gave up with your deficit-funded tax plan.
Hypocrites.
2020 is coming.
2
Not sure why this needs to be an either/or analysis. The Whitaker appointment violates both the Appointments Clause and the Justice Department succession statutes. The succession statutes override conflicting general provisions of the Vacancies Reform Act because their specificity evinces a more compelling targeted legislative intent. Plus this interpretation harmonizes better with the Appointments Clause in recognizing the exceptional importance of the Justice Department hierarchy in the constitutional scheme.
This outcome is both logical in structure and originalist in tenor. As noted by the authors, even Clarence Thomas would be hard put to reject it.
7
Of course it's not as clear as the authors make it out to be. They don't mention the immediately following clause:
3: The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
@Concerned
The senate is not in recess now. Hope this clarifies.
1
It’s kind of like writing a letter, Greetings to recipient first, then the body of your letter, then your signature. You may put all the info on the paper, but if you haven’t followed the basic rules, you really only have info on the page. Yes, the President is authorized to make recess appointments, but his perspective pool of applicants must have a previous Senate confirmation under this administration.
Constitutional or not is subjected to the interpretation of the court. It is always a guessing game on which way the court will go- follow the precedent or overrule it. Constitution is fluid and had been changed, overruled and reinterpretation many times since the founding of this country.
1
@Ted chyn: So what? Trump is not the (Supreme) Court.
Katyal and Conway are speaking truth to power. Where are the Wise Men (aka Elder Statesmen) in America? Senate Republicans? former Presidents? former Secretaries of State?
We the people will take to the streets today at 5pm to demonstrate our displeasure to Trump's power grab.
10
trump always states that he likes people who look the part and if this guy is not out of central casting for the role he is about to play I don't know who is. trump could always find work as a casting agent.
7
Even if some group sues over this issue do you really think that the Supreme Court will rule against Trump? Gorsuch and Kavanaugh are beholden to Trump for their lifetime appointments and the rest of the conservative bloc are enamored of the idea of unfettered presidential powers as long as the GOP holds the presidency. Trump will probably just make a recess appointment if political pressure mounts. The Trump autocracy-oligarchy-kleptocracy will be untouchable once he has finished packing the courts with candidates vetted so carefully by the Federalist Society and Big Business.
7
As a Canadian without perfect knowledge of how to proceed now, I would have liked to see some ideas expressed of how
the situation can be rectified.
Can anything be done about this unconstitutional matter?
All my life I have lived with with a belief that there are checks and balances that work in the US. But the last two years have made me much less certain that this is so. If a president wants to over rule what the constitution says nothing much seems to happen. This certainly is not what the scool books taught us. Not in Canada at least.
9
I agree with the authors of this editorial. An Acting Attorney General needs to have been approved by the Senate, since quite clearly this person will be acting in Principal Officer that reports ONLY to the President.
Furthermore, President Trump appointing this man to be the Acting Attorney General, by fiat, poses an obvious conflict of interest. This man has written and spoken publicly and vocally, criticizing the special counsel's legitimacy. His appointment by the President as Acting Attorney General seems to pose an obvious conflict of interest since the President, his close aides and potentially members of his family may become targets of this investigation.
This situation MUST not be allowed to continue, in my opinion.
18
Since he is acting AG confirmation by the Senate is not required but, were he to become the AG, the Senate, as controlled by the GOP will not hesitate to confirm him or anyone else that Trump wants.
He could appoint the WH restroom attendant and he would be confirmed by the Senate. After Kavanaugh,the bar for appointments has dropped through the floor.
The Senate will do whatever the Master commands.
And with alacrity.
6
This article by Mr. Katyal and Mr. Conway confirms what certainly must have been obvious to Matthew Whitaker – an Acting Attorney General cannot be promoted to Attorney General without a presidential nomination being submitted to the Senate Judiciary Committee, a background check by the F.B.I. at the behest of the Committee, a hearing before the Committee, a bipartisan vote of approval, submission to the entire Senate for a vote with each Senator having a brief opportunity to question the candidate, and then a vote of consent.
That process would be impossible to complete before adjournment. In other words, Whitaker would be confirmed in 2019. That’s a little too close to the beginning of jockeying for the 2020 general election. Republicans seeking re-election to their Senate seats don’t want the horse collar of a Whitaker confirmation around their necks.
Trump doesn't really care about the Constitution. Unfortunately, neither do the Republicans currently in the Senate.
34
No
One does
By bringing in Mr. Whittaker and not utilizing Rod Rosenstein, Donald Trump is telegraphing that he is up to something. That something, based upon all actions that have preceded it, is to foil or end the Robert Mueller investigative team effort. It is as simple as that to me, and anything that is done to foil Trump is right and good. I want to see his financial dealings revealed via his tax returns. Trump has from the beginning sought to keep them from public view. This is unacceptable in a President.
22
No doubt Thomas will find some way to distinguish Whitaker's situation from his previous decision.
7
There is an easy solution for Trump. Just wait for the Senate to adjourn and appoint Whitaker then. That worked fairly well for Obama when he wanted to avoid Senate confirmation.
2
@J. Waddell
President Obama made 32 recess appointments, all to full-time positions. During his presidency, President Clinton made 139 recess appointments, 95 to full-time positions and 44 to part-time positions. President George W. Bush made 171 recess appointments, 99 to full-time positions and 72 to part-time positions. Each of Obama's appointments were people who had been nominated. And none were loyalists overseeing an investigation into him.
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"Autocracy - a system of government by one person with absolute power".
Congress has completely abdicated its responsibilities, the judiciary has been captured, and the free press is under daily assault. Can there be any legitimate debate as to where we now are? All we're missing are the bananas. All this winning...is killing us. Osama has to be laughing from the beyond. Never in his wildest dreams could he have conceived of such success as this.
19
The question this editorial doesn't address is who has standing to sue the administration to force the President to go to the Senate for its "advice and consent?"
And yes, I know the Republican Senate might rubber stamp Whitaker, but just getting this issue aired out in public hearings may have real value.
9
Can any of you attorneys speak to motive? Doesn’t it matter? I see no plausible, innocent motive on Trump’s behalf. His only plausible motive is to avoid accountability and place himself above the rule of law.
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The authors are, of course, entitled to their opinion, but that is up to the Supreme Court to decide on constitutionality of such a matter and no one else. And we all know what the decision would be, should anyone even bring up that case. So what is then the point of raising this brilliant argument? Only throwing more fuel on the fire of anti-Trump hysteria. And those are the Russians who want to divide the country?
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@David : Way to give up on the rule of law without a fight!
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You're absolutely right. There is no other interpretation. Rosenstein should be acting AG, not Whitaker. Trump acted without the advice and consent of the Senate, and he is obviously trying, once again, to obstruct justice. The problem is, this Senate will do nothing. I've written both of mine with this same argument, and I encourage everyone to do so as well. It may not help, but it's got to be tried.
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It's important for readers to detect the sleight of hand the authors of this article are using. They referred to Thomas' separate but concurring appointment in the NLRB case last year, but fail to note that he did NOT write the majority opinion. Thomas wrote an opinion that argued the majority did not go far enough. But that doesn't mean his opinion is the decision in the NLRB case; it wasn't.
The authors are positing their legal opinion. And it's reasonable, and some future Supreme Court case may find they're correct. But until that time, Trump's appointment of Whitaker to this office is perfectly legal under existing law. You and I may not like it, but to say it's unconstitutional is only an opinion at this point.
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@Kasey : There's no sleight of hand. The authors have cited Justice Thomas's separately written concurring opinion, clearly labeled as such, to support their argument. It's convincing support because Thomas is (or was?) Trump's favorite and because the quoted passage so clearly and forcefully explains why the Constitution’s drafters intended to prevent the exact type of appointment that Trump has just made.
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Yup
@Kasey Even IF there was no previous Supreme Court decision, there is the clear language of the CONSTITUTION.
I don't agree with your analysis, but that's OK. Let's assume you are correct that the original intent behind the Constitution prohibited this appointment. I argue in response that the current conservative majority on the Court abandon the originalist interpretation that they promote (and that you also promote in this article) and adopt the liberal justices' view that the meaning of the Constitution can change over time. It can be, as liberal justices advocate, a "living" document. Once they accept that interpretive principle, the majority conservative justices can simply decide that the constitution has started "living" in a manner more beneficial to Donald Trump.
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I think Whitaker is Acting attorney general, until a new, permanent one is chosen.
Similar to Sally Yates as acting AG starting Jan 2017 until Lynch's successor was chosen (Sessions).
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@Talbot Not a similar situation - Yates had been vetted and confirmed by the Senate to her previous post as deputy attorney general. The main point here is that an acting attorney general should, according to the Constitution, be subject to a formal vetting process in the Senate. Whitaker has not been subject to any such process.
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@Talbot Why isn't the deputy AG the acting AG? Wouldn't that make far more sense? And, as this article states, that is someone who has been approved by senate confirmation...same as Ms. Yates. Mr. Whitaker is a guy who works for DOJ. Given that requirement, Trump could have appointed the janitor.
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@Talbot NO. She had been Senate confirmed. This guy hasn't been. Not the same at all.
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Is anybody going to stop this president from taking our democracy off the rails? Or do we just write and read op-ed pieces and comment on them? Truly I see " Dictator Wanna Be" written all over the guy. He is a spoiled man child bullying his destructiveness all over our great country. His cabinet is filled with white supremists and shady people. He appoints the very people to positions we are trying to be protected from. Well thank you voters for at least a balance in the house. Hopefully it is a surge towards 2020 and something far better in our highest office. From babies in cages separated and then lost to his transparency in the Mueller investigation I could go on and on but why? LOCK HIM UP already he's a crook always has been.
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Following the hiring process as outlined by the Constitution, the acting AG is Deputy Rod Rosenstein. Mr. Rosenstein was interviewed and approved by majority members the Senate Judiciary Committee and the majority of full Senate. Mr. Whittaker has not been interviewed or approved. This is beyond absurdity and credulity. Mr. Trump likes to trumpet his business background, but his was a sole proprietorship. No company with a responsible Board of Directors allows it’s CEO to summarily appoint the Chief Legal Office (CLO), knowing they are answerable to their shareholders when litigation arises and loss from said litigation. The BOD has corporate bylaws that must be followed. If the CEO is irresponsible the BOD can remove him before he bankrupts and ruins the corporation. It's school house rules, when the head principal leaves the vice-principal takes over, maybe temporarily or permanently upon approval. If the rules don’t apply then Mr. Pence may have dreams dashed.
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If true, then what's the next step?
This vacancy occurs through no necessity other than the President wanting to derail an investigation into his behavior. Sessions was in the job and doing it competently. His sudden removal was forced expressly to put Whittaker in the job without Senate deliberation and consent.
It is another instance of obstruction of justice.
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For those wondering how the Whitaker appointment ought to be confronted, why not just ignore Whitaker's alleged authority. Let Mueller continue as before, issuing subpoenas, interviewing witnesses, and seeking indictments. Let the Trump side take it to court. Subpoena Whitaker first.
4
Question / Concern: Can a prosecutor, such as Whitaker, legally provide information from an ongoing federal investigation, with the subject of that investigation, such as the President?
6
Sessions was confirmed. His power should be limited to daily business until the next GA is there.
Once again, I feel helpless and hopeless. I did vote on Tuesday. What else can be done by the ordinary citizen to reverse this travesty?
5
So, will one of the authors of this piece do something about this condition and file a case in the District Court for the District of Columbia seeking an injunction against Mr. Whitaker's taking any official action until his nomination has been submitted to the US Senate??
Actions, gentlemen, not just words.
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It's obvious that Trump has been "gunning" for this very opportunity to appoint someone who will finally "protect" him. So transparent.
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At best, we can hope that Trump's Mr. Whitaker is not a reincarnation of Nixon's AG John Mitchell.
Bet dinner at the Conway home is a ton of fun these days.
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An impressive amount of people are attacking Mr. Conway on this op-Ed. I am wondering how many of those people would have the guts to write, sign and stand up for their opinion, stand up against the president, put their carrier at stake, being K. Conway’s husband. He is just being professional and righteous. The issue here is not who he’s married to. Read the content
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Mitch McConnell will give Trump a rubber stamp that says APPROVED and the congressional majority will bow in acquiescence.
Makes you wonder why the people of the USA are paying these useless articles salaries.
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@KJ
Senate. This whole thing is making my brain crazy.
@KJ Mc Connell , therein lies the problem - both his miserable self and his miserable wife.
Stop calling the Constitution bipartisan. It's nonpartisan.
3
Trump follows the advice of the deranged committee in his own head and he always gets away with it. I'm disgusted that no one with the power to do so has called him out on the rules and laws he has broken. He will continue doing as he pleases until it finally has the people up in arms. (Many literally.) By then it may be too late.
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Don’t ya just love attorneys? One of my favorite Bill Clinton quotes... “that depends upon what the meaning of the word ‘is’ is.”
Parse ad nauseam to your heart’s delight. The fact remains that Jeff Sessions ‘formally resigned’. Therefore, Trump can replace him as per the The Federal Vacancies Reform Act of 1998.
It’s going to be a long two years ahead...Democrats still laboring in vain to defeat their nemesis.
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@Shenoa I think the point is that the Federal Vacancies Reform Act is unconstitutional as applied to a person who has not been confirmed by the Senate. Statutes can be unconsititutional or unconsitutional as applied. That isn't "parsing"; it's just standard constitutional law.
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@Shenoa
Unclear on the rules of engagement. The issue is that he is not vetted and not confirmed for the position. The rules are that the deputy attorney takes over until another AG is confirmed. Arbitrarily appointing a crony of trump who's position was as Sessions secretary is not legal.
We can not have a democracy if the president flaunts the rules, instead we will have a dictatorship, and if you think wearing a MAGA hat will protect you, think again.
1
So what happens at the beginning of an administration, before any cabinet officers are confirmed? It seems that the designated people begin to serve before confirmation.
@John Lentini I don't think so. Instead the acting deputy---who has been confirmed by the Senate---takes over as acting AG until the nominee is confirmed by the Senate and takes the oath of office. Remember Sally Yates?
2
To everyone who has taken the time to share their thoughts here, may I ask that you also share them with your senators and the White House? You may not be aware of it, but every one phone call or email is taken to represent the opinion of 100 people. That makes your effort more than worth it.
I think we all understand the days for being quiet are over.
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If this is a grounds for impeachment, I don’t know what is. Trump has no respect for the constitution or the rule of law. He needs to go.
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@Tom B Be careful what you wish for... if he gets removed we get Pence, who is a snake in the grass. I'd rather see Trump indicted after he's out of office.
1
An excellent analysis of this matter. The problem is President Trump does not give a damn about the rule of law and would love to be challenged on this so that he could unleash his, as well as his toadies, full fury, power and hate against the challenger. America is facing another nightmare due to the maniacal king sitting in the Oval Office.
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Loose lips sink ships. The current head of the ship of state has lips looser than any of his predecessors and a relationship with reality and language that can be best described as flexible (or perhaps loose). Has he made an appointment or has he merely claimed to make an appointment or expressed a desire to make an appointment without knowing what the process is?
An official appointment as argued here may be unconstitutional but our embiggened executive may claim that it was merely a perfectly cromulent turn of phrase.
Dude is unfit to operate an umbrella let alone a branch of government.
7
In the end, what difference does it make? With Republicans controlling the Senate (and more obliquely, the Supreme Court), any nomination Trump makes will likely be approved.
4
Can a court put an emergency block on this appointment until it is confirmed by the Senate?
2
People are going backwards and forwards to rebut or interpret the author's legal argument.
I would just point out that, regardless of the legal ramifications of Trump's appointing Whitaker, his every action (announcing that his displeasure with Sessions was his recusal. attempting to get Clinton re-investigated, claiming he can end the Russia probe anytime he wants to, fudging about firing him after the midterms, naming Whitaker without Senate approval, etc.) is itself evidence of obstruction.
If presidential actions were judged only on technical questions (leaving out, for instance, the president's monumental conflict of interest in getting rid of his AG), we would have no rule of law.
The Supreme Court has to weigh in on this. And since the Senate is still in the hands of the radical, judicial power-grabbing obstructionist, Mitch McConnell, so does the House.
5
Good points, although perhaps arguable. The weakest part of the case, though, is reliance on the opinion of Justice Thomas. No doubt the authors hoped to catch the conscience of a conservative or two with that part of the case. Rest assured that neither Trump nor McConnell nor any significant conservative player, including Thomas himself, attaches more than zero importance to such an opinion. Partisanship, not law, power, not principle, Trump, not the nation, rule all decisions left to Republicans.
3
First, it must be said this is just outrageous. Trump reportedly talked Anthony Kennedy into retiring. Then he shopped for a Supreme Court Justice who had about the most expansive view of presidential power to be found in the land.
Meanwhile, Matthew Whitaker auditioned for Trump's DOJ by going on cable news shows and opining that Mueller's investigation should be curtailed, starved of funds if need be, and that the Special Counsel did not have the authority to look at the President or his family's finances. Wow!
Too bad the President doesn't do this sort of strategic and tactical planning when it comes to public policy and governance.
Anyway, Surely Meuller knew this was coming. That Trump's efforts to reel in the Special Counsel begin immediately after the midterm speaks of the urgency Trump felt to act. He is reportedly of the belief his son, Don, Jr., is about to be indicted.
We have so far seen one half of this legal chess match. I have a feeling we are in very short order going to find out what steps Mueller took to inoculate his investigation. Can it be Trump out maneuvered Mueller . . . I find that very hard to believe.
Regardless, it should not really have to come to that. Just how much obstruction of justice does Trump need to engage in before enough Repub Senators wake up and put country over party to put an end to this obscenity.
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@Teamco The republican senators will not step in to stop Trump no matter what he does. I think they have already amply demonstrated that.
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@Teamco Indeed! What I don't understand is how the blue wave did not flip the Senate as well as the House. Do people not see what is going on before our very eyes??!! Trump does not try to hide his intentions, or he lies blatantly. The People have the power to control the government! This is not a normal situation; what Trump and Republicans are doing is a serious threat to our Constitution, democracy and national security. It is helpful that the House is now in the hands of the Democrats, but the Senate is still empowered to do great damage at the bidding of the President and not The People.
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@Jeanne "The People have the power to control the government": Apparently not, as long as Congress fails to check the executive's power, because its members fear loss of campaign money from the 1%, because the Supreme Court has pronounced that corporations and PACs are "persons" whose right to "speak" with unlimited money can't be restrained.
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This makes it pretty clear that the Deputy AG now has all powers of the AG until another appointment can be confirmed:
https://www.law.cornell.edu/uscode/text/28/508
3
Make no mistake. This play is all about, Trump appoints Whitaker, Whitaker takes all the files and every memo, scrap and bit of information that both Sessions and Rosenstein have accumulated about what Mueller has been doing since day one, literally everything in the files, so to speak, and Whitaker under the president's order will deliver them directly to Trump and his attorneys. If this hasn't happened already, it is only a matter of hours.
5
Why didn't we see this coming?
https://m.youtube.com/watch?v=MMKFIHRpe7I
Actually, a little more than half of all voting Americans did, which is why they voted against Trump.
Actually, the little more than half must also have seen it coming, consuming their favorite form of culture. They knew exactly what they were voting for.
"PANDEMONIUM!"
1
oops: "the little less than half also must have seen it coming..."
If the next 2 years is going to be a Democrat controlled House attempting to further criminalize politics, then expect another special prosecutor to be appointed by Trump to go after the Clinton Foundation and Clinton/DNC role in trying to influence the 2016 election and the FBI with the Fusion fiction. Fusion was the REAL election and law enforcement meddling. Let's also see Lois Lehner, Loretta Lynch, Eric "Kick Em" Holder, and Hillary "Shred the Evidence" Clinton all hire criminal defense attorneys. Why govern when you can please the antifa rabble with the Coliseum games?
1
Putin just can't seem to wipe that cheshire cat grin off his face.
3
The Deep State, if you are listening, it is time to act! The Republic is in grave danger with this Russian asset in the Oval Office.
2
Why say the deep state? It’s just the ordinary normal state - you know, the United States of America.
We’re being overthrown. Oaths to uphold the constitution are not being abided by.
What say you, U.S. military? Whose side are you on?
The implication here is that Trump has declared himself as the Führer and the Senate appears to be giving in, which means the USA no longer has a functioning democratic government.
3
ah this man is the perfect heavy Trump would love
2
Another shoot-from-the-hip knee-jerk, illegal action by President Trump. He'll need to backtrack.
1
Trump is losing his mind altogether. The reality of losing the midterms is causing his psychosis to kick into high gear. It is going to be very difficult for Republicans to stand by him as he shreds our democracy to pieces.
1
"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."
For the record, Trump didn't "force" his resignation--he fired him--something he should have done some time ago. And unfortunately, or fortunately, neither Katyal nor Conway sit on the Court, so who cares what their opinions are.
NYT needs to hope Ginsburg is still there if it reaches the Court.
4
Thank you, Thank you! Like many of the comments here, I was fearful that this POTUS if left unchecked as he has been, would eventually be able to erode or even eliminate those checks and balances in our system of government that he did not agree with and worst, do it without our knowledge. I say this because, to date, our Republican Congressional Leaders have not been willing to challenge this President. Why?
- they do not want to risk their own personal interests/agenda or,
- they silently agree with him w/o alienating their constituencies.
2
I'll bet dinner at the Conway house is laughs and giggles.
1
Test this matter with the Supreme Court (expedited case). Let's see what Gorsuch and Kavanaugh think. I expect tortured logic will trump the constitution.
2
Don't miss this report: "Acting Attorney General Once Declared Courts ‘Inferior’ and Criticized Supreme Court’s Power"
https://www.nytimes.com/2018/11/08/us/politics/matthew-whitaker-courts-inferior.html
This morning, Amy Goodman on DemocracyNow.org reported that "The Miami New Times reports Matthew Whitaker was also involved in a Miami-based invention marketing company the Federal Trade Commission shut down last year after calling it a scam. The paper reported Whitaker not only sat on the board of World Patent Marketing, but also once sent a threatening email to a former customer who had complained after he spent thousands of dollars and did not receive the promised services. I mean, we’re just learning about Matthew Whitaker right now."
The Miami New Times also reported that "The new acting attorney general also evaluated a razor invention submitted to World Patent Marketing in a video the company shared on its Vimeo account three years ago, proclaiming that it had a "simple design but a unique design."
Scott Cooper, the CEO and founder of World Patent Marketing, donated $2,600 to Whitaker's 2014 Senate campaign — just $100 shy of the limit for an individual to donate to a candidate. Internal records show the company paid him nearly $10,000 before the company was shuttered."
Read it all on https://www.miaminewtimes.com/news/trumps-acting-attorney-general-matthew-whitaker-was-part-of-world-patent-marketing-a-miami-based-invention-scam-company-10893091
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@Jim Unfortunately, as we have witnessed since January 20, 2016, Trump really does not "hire the best people."
What a laughing stock he is.
So, who do we call to get rid of tis bogey man, Ghost Busters ?
2