There is a difference between "not illegal" and "appropriate."
Everything that Whitaker touches will be subject to critical review. He, himself, may be named in an obstruction of justice case if he performs as Trump expects him to do.
This is so characteristic of the low-life creature who lives in a transactional world versus a real leader with a sense of history and foundation in knowledge. "If it's not illegal on the face then I can do it, consequences be damned."
It's going to take years to unravel this mare's nest of crimes and disgusting acts. Thanks, GOP.
59
Ethics RULES? Come on! This is the new Transactional World according to the Trump Party.
1
In drafting his memorandum defending President Trump's appointment of Matthew Whitaker as Acting Attorney General, Steven Engel of the DOJ Office of Legal Counsel was forced to use Mr. Peabody's Way-Back Machine to dredge up any legal precedents supporting his position. His memorandum includes the following, among others.
-- Memo, p.1 -- "we have identified over 160 times before 1860 in which non-Senate-confirmed persons performed, on a temporary basis, the duties of ... high offices ..." These precedents all date from before the Civil War. The Department of Justice was not created until 1870, so precedents from before the Civil War do not appear apt.
Memo, p.2 -- "we have identified at least one period in 1866 when a non-Senate-confirmed Assistant Attorney General served as Acting Attorney General." While subsequent to the Civil War (by one year), this 152-year-old purported precedent occurred four years prior to the creation of the Department of Justice in 1870, and many decades prior to the enactment of the federal law providing that the Senate-approved Deputy Attorney General, and not just any random and lower-ranking Assistant Attorney General, is to serve as Acting Attorney General in the event of a vacancy.
-- Memo, p.2 -- The memo cites United States v. Eaton, decided in 1898, 120 years ago, as allowing an unconfirmed inferior officer to perform the duties of a principal officer -- "for a limited time ... and under special and temporary conditions."
So Trump could get rid of his Secretary of State, say, and because he doesn't need Senate confirmation, install the interim Steve Bannon?
What is to prevent him from entirely rearranging his cabinet without Senate hearings or a confirmation process? This isn't Constitutional, it can't be.
And we suppose the next blatantly un-American move will be to say that Mr. Clean (remember that guy who looked just like Whitaker?) doesn't have to recuse himself because of what he said about the investigation earlier.
Just amazing. Amazingly depressing.
How did President Trump arrange for Stormy Daniels attorney Michael Avenatti to be arrested for domestic abuse ?
2
Trump doesn't know or understand the law. He understands and knows how to break the law, and he is an expert at that.
If trump gets away with installing his own cronies like Whitaker - a scam artist - to the top law enforcement job, he'll be free to re-appoint them temporarily every 210 days. Indeed, he can fire his entire cabinet of Senate confirmed individuals and replace them all with unconfirmed cronies and keep renewing their temporary status. Even confirmed positions are really "temporary." Note all these appointed unconfirmed cronies all could come with the promise of a presidential pardon to boot.
A criminal appointed to the top law enforcement job at the DOJ - forget Orwellian - how trumpian.
Mueller should refuse to acknowledge any orders from Whitaker by claiming he is illegitimate and go to Rosenstein instead. Mueller can challenge Whitaker's authority in court and stall until Dems take power in the House.
4
The net result is Trump made a dumb political partisan appointment to serve his interests. It came with a pledge Whitaker would not recuse himself, otherwise Trump made two dumb moves.
Let Whitaker serve while Trump continues his 18 month search for a permanent replacement for his surprise firing of Beauregard. Whitaker may regret taking the job. He will be subject to scrutiny beyond the ordinary. Hearings before Congress will test is ability to think on his seat in front of glaring lights.
This may make for great theater. I look forward to his Marbury questioning and his biblical interpretations, his musings about how to derail the Mueller witch hunt. Let the show begin.
1
It appears that Whitaker, when he woke this morning, looked in the mirror and asked himself, "Hey, big guy, am I qualified to be the acting attorney general of the United States of America?" And the mirror image said in reply, "Of course, of course. You're a gifted politician and speaker. Show 'em what you can do, Matt!"
Ah, so Whitaker, who temporarily heads the DOJ, exclaims to himself that he's legally entitled to the job. Great, just great. Whitaker, who looks and acts like Benito Mussolini or the local bar bouncer, is now our chief of law enforcement. Well, now we'll certainly be safe from Russian meddling and domestic terrorists.
Please, Mr. Mueller, time's a wastin'. Drop the axe, already.
4
Today, Mitch McConnell refused to bring a the bill to the floor of the Senate by Senators, Jeff Flake and Chris Coons that would protect the Mueller Investigation! McConnell is acting as a sycophant of Donald's! Shame in him!
I am not an attorney, but everything I've heard about Whitaker....smells! What is a man under federal investigation doing as acting-AG?! And Engle sites a case in Bangkok as his reasoning?!
Our Justice Department is under siege by Trump's puppet! We should all be outraged!
4
Gee, I wonder what the Stolen Republican Supreme Court is going to decide?
2
So by this logic the president could run a nominee through the Senate, then fire him/her next day to install whomever he wishes.
I’m not even a lawyer and can identify the absurdity of such an argument. (Whoever made the argument is incompetent or corrupt? Or coerced by our bald eagle of constitutional ignorance?)
2
Corrupt, fraudulent, and self-serving. This administration and its “justice” department are wholly anti-American.
1
I admit the arguments on both sides sound logical and well reasoned. My question is this: If the president can do this legally, then what is to prevent him from getting rid of (firing, asking to resign, making them miserable on purpose) any duly approved cabinet member or appointee and replacing them with a "temporary" henchman? (A week or two is one thing, seven months is very different). It sounds very Hitlerian, Putinish, Chavez-like, etc.
2
The statute and the constitution and what it means will be for the Supreme Court to decide. Wow, I wonder how the supreme court will decide. Bush v Gore all over again and SC will claim it's decision is only for this case, because you never know when a Democrat President will be elected and then the ruling will be different.
3
Meantime McConnell once again blocks a bipartisan bill to protect Mueller. It’s almost as if this whole thing was planned before the new Congress takes oath.
4
Gee, the "Justice Department" headed by some utterly unqualified toady installed by Trump for this very purpose says that the appointment of this partisan toady is "legal"?
Surprise, surprise, surprise!
And of course all this does is further smirch the "Justice Department," justice and the rule of law in our nation, and public confidence (if any is left by now) in the workings of our government, system of justice, or laws.
4
Instead of tiptoeing around the law, perhaps Mr. Trump would be better advised to follow it. With all his bullying and considering the ethics of Whitaker, it would take a brave lawyer to speak out against those two bosses.
2
Bravo, Jeff Flake!
What if Merrick Garland, chief justice of the DC Circuit, is asked to rule on the legality of Matthew Whitaker's appointment as acting Attorney General?
4
Sorry, but DOJ is flat out wrong. Otherwise, any president could fire every senate confirmed officer on the day after confirmation and replace them with cronies, hacks, criminals and even foreign agents with impunity. So it now seems even the constitution is bending under the will of Vladimir Trump. I plan to be out of here well before the 2020 complete dismantling of our democracy.
4
This is baloney. There is no vacancy created by Sessions' ouster. Federal law provides a very clear rule of succession to ensure there is no vacancy in that position. The moment Session left that position, the law provides it to be immediately and automatically filled by Rosenstein.
By belaying that rule and unilaterally inserted Whitaker, Trump is in gross violation of federal law. In fact, it doesn't even reach the level of the Constitution!
7
his is doable for Mitch, the Don nominates, GOP Senate confirms, then Don dismisses, nominates, retracts and dismisses and replaces every 6 months or so until the Don departs !!
3
How amusingly unhinged that a Justice Department lead by a man who believes that the founding concept of Judicial Review (Marbury v. Madison, 1803) is illegitimate, yet specifically cites pre-1866 examples of theoretically similar vacancy filling as superior than more recent Congressional direction (1998) simply by virtue of their very antiquity. In other words, the man is a rube who fully expects that each and every one of us will be so astounded by his blindingly flat-footed reasoning that we'll call it brilliant.
2
There is a Senate approved Assistant Attorney General whose job description included filling this vacancy until a new AG is nominated and approved. Using temp help is no way to run a government and picking someone whose strength is that he doesn't think you should go to jail, is ludicrous. Can't wait for Nancy to help straighten this out.
4
Yes, this is a very objective rationalization. It reminds me of the objectivity of the president declaring that his son was a very fine boy.
2
This is the watering down of our constitutional democracy - and, what is the period of grace for "acting" before such an appointment has to be confirmed? If this had been done by Obama there would be such a hue and cry, you would think the sun had gone nova. But of course, now we know that Republicans are really cynical opportunist nihilists no different under the skin than any other international group of political crooks and criminals desperate to hang onto power. The fact that they have a battery of tax payer funded shysters to make their case doesn't make the appointment or them any less sleasy.
3
This arcane legal/constitutional argument is necessary, I guess, but jeez . . .
It feels a bit like an argument over whether your butcher has appropriate accreditation before you let him operate on your heart.
Whitaker is nearly, not quite, as unqualified to be AG as Trump is to be POTUS.
2
Of course the DOJ would say that, they are scared of Trump.
1
So if Senate confirmations are optional then please install Merrick Garland on the Supreme Court immediately.
3
Who wrote this memo from the DOJ supporting Whitaker's appointment?
It was Steven Engel, Trump's top WH lawyer, who is a member of the Federalist Society, same a Gorsuch, Noel Francisco (next in line to Rosenstein) and Kavanaugh. (all Trump appointees as recommended by FS)
Interestingly also is the fact that Leonard Leo, the HEAD of the Federalist Society recommended Mr. Whitaker for his job with Jeff Sessions at the DOJ in a position that could be translated as being legal for transfer by EO to the AG position using the obscure Vacancy Reform Act.
It should be noted that the Federalist Society co-founder Steven G. Calabresi has frequently argued that the Special Counsel Robert Mueller's investigation is unconstitutional.
It certainly appears that the Federalist Society has an end goal that does not fair well for the Special Counsel.
http://time.com/5292170/robert-mueller-special-counsel-unconstitutional-steven-calabresi/
3
Wow the same outfit that issued an "opinion" saying torture was legal now says an unconstitutional appointment is legal. I'm shocked, I tell you, shocked!
3
CNN just reported that Mitch McConnell blocked a vote on an amendment to protect Robert Mueller. McConnell is as corrupt as Trump. Can't wait to see his karma catch up with him.
3
Does it even matter to anyone that this dude under FBI investigation for duping investors with his scam company,..is anyone surprise that there's no morality left to speak of.
Justice department led by crook, yes my fellow americans we finally arrived.
3
Ronsenstein has endorsed Whitaker and Whitaker has endorsed Mueller; what's the beef?
1
By this selectively convenient argument (that is being made in a vacuum and bypasses a higher precedent and ethical rule of order) any president could simply fire an attorney general (who happens to be in charge of investigations of said president's criminal activities) and simply appoint a crony sympathizer who also happens to be currently under investigation for criminal activities...
Oh, wait. That's exactly what's happening.
19
DOJ argues the Constitution doesn't require it. Such a palpably false argument. So why does the Senate hold hearings to confirm senior officials of Cabinet depts? It seems constitutional and logical and commonsensical that the next officer in line - already confirmed by Senate - should succeed to the acting position.
Well, Well, who is in charge at DOJ? That guy is part of the Cabal the Congress is fighting.
1
"Critics of the appointment have argued that the more specific law that addresses the Justice Department makes the position of attorney general an exception to the procedures listed in the more general Vacancies Reform Act. But Mr. Engel argued that the better interpretation was that the president can pick either option."
Assuming that the statute does not expressly give the president the option of one or the other, that's really doubtful.
“[I]t is a commonplace of statutory construction that the specific governs the general, NLRB v. SW Gen., Inc., 137 S. Ct. 929, 941 (2017).
1
The comments are funny. All of them are frompurported legal experts, but somehow their legal conclusions are completely different, depending upon whose side they are on. Now, there is only one rght answer, regardless of whom you support. What is that answer? Darned if I know, and I’ve been practicing law for 40 years.
1
Having read the article and the below cited memorandum of law submitted to the court by the State of Maryland, I conclude that the appointment of Whitaker is unconstitutional and is in violation of The Attorney General's Succession Act. See below
Assuming, arguendo, that the court finds the utilization of the Federal Vacancies Reform Act 1998 as a valid means, in principal, to install Mr. Whitaker, it fails to meet the requirement specified in section 3345 Acting Officer, (a) If an officer of an Executive agency (including the Executive Office of the President, and other than the General Accounting Office) whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office-
Mr. Sessions did not resign, but was forced from his position by Mr. Trump in what is referred to commonly in employment law as a "constructive dismissal" In general, the term "constructive discharge" is realized when a worker's resignation or retirement may be found not to be voluntary because the employer [the President] has created a hostile or intolerable work environment or has applied other forms of pressure or coercion which forced the employee to quit or resign. There is an abundance of evidence on the record to support precisely that conclusion and the court should not permit the use of a 'legal fiction' to circumvent the requirements of the Act.
3
Unfortunately,even an “acting” Attorney General can inflict severe damage to our democracy and justice system. Whitaker has the DNA to do just that. We the people need to voice our loud and clear protest to have him removed now.
4
That background into how this memo came about needs to be the investigated by Congress.
Question 1: Is this part of an on-going conspiratorial attempt to suborn the DOJ?
Question 2: Why does McConnell refuse to bring a bill to the floor that would remedy this?
Let's deep search that, and prosecute where necessary.
4
"In support of that claim, Mr. Engel pointed to an 1898 Supreme Court case upholding the temporary appointment of a replacement consul in modern-day Thailand who had not been confirmed by the Senate after the consul in place grew dangerously ill and had to leave the country."
Right...so this is analogous to Trump declining to appoint a perfectly healthy, competent and Senate confirmed deputy AG Rod Rosenstein...how?
I now suspect Trump's primary goal was to get an AG mole in to the DOJ, even if temporary, to obtain as much information on what Mueller has and have that information fed back to him as quickly as possible.
The fear of Whitaker ending or financially strangling the investigation may be a ruse to distract. I suspect Whitaker will go out of his way to demonstrate that he's not interfering for the duration of whatever tenure he has...while secretly pulling a Nunes.
4
Forget the Vacancies Reform Act of 1998, this appointment opposes the spirit of the Constitution. Isn't anybody thinking anymore. This guy will have jurisdiction over an investigation that he wants to stop (similar to the EPA and Pruitt). This is an investigation that the nation needs to maintain their Democracy. It is critically important. Let's face it, the Constitution is flawed. To allow this lack of checks and balances between the Judicial, Executive and Congressional branches is baffling. I am surprised our Democracy has not fallen sooner.
3
Engel is a Trump appointee. What more needs to be said? Plus, he had to rely on a series of calcified precedents to justify his opinion, the most recent from 1898 and the others even older--from Washington's time, for God's sake! This was a purely political decision and I don't think anyone (except a fellow lawyer) could seriously maintain otherwise.
3
All it takes is one cheeseburger. I wake up every day hoping that this will be the day.
2
What sane American has any confidence in the Department of Justice?
Steven E. Engel might wish to consider Matthew Whitaker's lack of Senate vetting or confirmation, Mr. Whitaker's legal problems with the FBI investigation of his scam operation for patents in Florida, and Mr. Whitaker's conflicts of interest with Sam Clovis, and his lack of recusal on the Muller Investigation due to public statements critical to the investigation.
After Brett Kavanaugh's bizarre appointment to the former Supreme court, and Jeffery Sessions repeated acts of perjury before the senate, most Americans trust UBER drivers over our Department of injustice.
3
The Trump Administration was never a well oiled machine, though plenty of palms were being greased.
But since the mid terms, it looks more like a blender running on "liquify" with the lid off. Whitaker is a classic Trump pick, guaranteed to be an immediate court date.
There just aren't enough lawyers in the Western Hemisphere, much less DC, to defend Trump on all of his own and Administration Agency transgressions. He might have to resort to public defenders.
Expect chaos.
1
"In a 20-page memo to Mr. Trump’s top White House lawyer, Steven E. Engel, the head of the department’s Office of Legal Counsel, wrote..."
If we are to give serious weight to memos such as this, we will go blind reading memos from Trump's White House lawyers (whom he has consistently treated as his personal legal advocates) about individual actions, appointments, statements, subpoenas, etc. Engel should take pity on us and just scribble down what, in his opinion, Trump CANNOT do as president. Not as a general matter, but a specific list of actions Trump could take that his White House lawyers would consider wholly without legal justification, outside any presidential "immunity," not covered by any dubious assertions of "privilege" and for which the law (not politics) may hold President Trump accountable.
I would be genuinely interested to see what list Engel produced and I imagine it would not be nearly 20 pages long. I know murder isn't on that list because apparently a president is not subject to criminal processes. Sure, "MR. Trump" can be held accountable following impeachment, removal, resignation, etc... but it appears that, "PRESIDENT Trump," is beyond the reach of any earthly law or jurisdiction. The only true crime, apparently, is losing Congress.
Now if that's the situation, I'll consider myself warned, but don't speak to me of "checks and balances" at the same time. The only real protection in such a system is to stay beneath the sovereign's notice.
13
By this logic, the President could demand that the entire executive leadership "resign" and then replace them with toadies who could serve for months, long enough to save his hide and do his bidding. Republicans would furrow their brows and sit on their hands.
"Constitution? We don't need no stinking Constitution."
25
Fox will say it’s legal, MSNBC, illegal. That’s the only real truth I know of anymore. Judges may as well turn in their robes for lapel mics.
5
@John Doe
Actually, Judge Napolitano of Fox News said Whitaker’s appointment is illegal. I’m shocked.
5
The entire point of requiring Senate confirmation is to prevent a President from appointing a scoundrel like Whitaker.
The 1998 Vacancies Act is un-Constitutional if it is seen as allowing the President to bypass Senate confirmation.
40
@Broken
Typical Liberal, has to resort to name calling.
You seem to ignore that this is a temporary appointment, not a nomination for the senate to approve, or not.
1
@Steve You and other head-in-sand-"conservatives" apparently missed Whitaker sitting on the advisory board of "World Patent Marketing", which just settled with the FTC in May for $26 Million for “deceiving consumers and suppressing complaints about the company by using threats of criminal prosecution against dissatisfied customers.”
Whitaker's role included writing letters to customers of World Patent Marketing threatening them with legal action.
Describing Whitaker as a "scoundrel" is an understatement, if anything. "Fraud artist" is much more apt.
5
Nowhere does the DOJ address what I feel is a highly disqualifying aspect of the Whitaker appointment: he himself is under FBI investigation for his role in promoting a business scam regarding fees to promote inventions.
I've also heard he's been looked for other business roles that may or may not involve fraudulent activity.
Doesn't such a situation preclude being appointed as acting AG of the entire DOJ?
of course we know why Trump appointed him. Recusal from overseeing the Mueller investigation is, I suspect, a bare minimum--one which he's already said he would not do no matter what the DOJ ethics office recommends..
I can't wait till January 3. Of course, he can do an awful lot of damage before then..
I also wish there were a test aspiring AGs had to take regarding knowledge of the law, which includes ethics and ethics violations.
59
And he’s a best buddy with Sam Clovis, Trump campaign official and named in the Papadapolous indictment.
SO in a nutshell, the Engel memo sidesteps one major issue: the President himself created the vacancy, as even though Sessions technically resigned, it was at the behest of the President.
The Vacancies Reform Act - it would seem - provides for filling vacancies in situations where there is a void.
But the position of Attorney General wasn't left uncovered because of a disabling condition or unavoidable absence or removal, nor was it lacking a suitable, and traditional legal substitute, but was vacated because Trump had decided to replace Sessions with someone who mirrored his desire to stop the Mueller investigation.
It was a game plan allowing him to elude Senate review.
187
@cheryl
Exactly, he appointed Whittaker BECAUSE he opposes the Mueller investigation. He appointed a head of the Justice Department to obstruct Justice.
Trump appointed Kavanaugh BECAUSE he has said that a president can only be investigated by Congress. Trump appointed a Justice to obstruct justice.
He fired the FBI Director to obstruct justice.
And he accused Sessions for over a year, then fired him for refusing to obstruct justice, enough.
Notice a pattern?
4
One more agency diverted by Trump.
1
No to Mathew Whitaker. He is not fit to be Attorney General. Ray Sipe
The opinion is well-reasoned. The appointment complies with the Vacancies Reform Act of 1998. The opinion explains the need to have an acting officer in charge until a permanent office can be confirmed. If there were any Constitutional problem with the Vacancies Reform Act of 1998, it should have been resolved when the Act was adopted. It would be useful if Congress would adopt a law permitting such abstract review when a law is adopted.
If we are serious that we want judges that apply the law and not make it, then we should accept the lawfulness of this appointment, even if we would have preferred a different appointment had been made. If we do not like the choices allowed by the Reform Act, then it should be amended.
By turning immediately to a Constitutional argument we undermine statutes, the Executive and the Legislature all to give the undemocratic judiciary ever more power.
2
So, once again he gets to stack the deck with all his people. He continues to make his administration a partisan bunch of wackos, determined to destroy our democracy, our constitution, and our country. So far, he’s succeeding at what he intended to do. He’s fulfilling his promise to himself to rip it all apart. From coast to coast, northern border to southern border. He’s ripped apart any fleck of diversity that this country was built on. He’s made the US his kingdom. It’s sickening how much damage he’s done in 22 months. If we ever can climb out of this swamp he’s created, it’ll take decades to undo what he’s done.
8
Presidents routinely appoint those who support their policies, and never knowingly appoint those who oppose the president.
When did Pres Obama or Pres Clinton or Pres Carter appoint an opponent to high office?
1
Per the Constitution, Rosenstein is the AG.
Per the FBI, Whitaker is a white-collar criminal.
12
I think with respect to the claim that it has been done before, one must distinguish between cases in which it has been done before, but nobody complained, or challenged the appointment ones in which there was no complaint.
Your point shows the importance of objecting to government officers taking actions that are unconstitutional that we otherwise agree with.
Every step of the way keeps us going down a slippery slope towards authoritarianism. If the President can appoint anyone he wants on a "temporary basis," then who is to say he can't stack the deck in whatever direction he wants, regardless of it an being ethical appointment.
12
Subordinate employees to the Acting Attorney General are willing to publicly assert that his appointment was legal? Wow, I never could have seen that coming.
10
So Trump & Co - who are vigorously opposed to open borders - turn to an obscure occurrence in Thailand to justify their position? Appallingly juvenile and their motivations to obstruct justice and protect Trump at all costs wholly clear.
6
The Vacancy Reform Act only covers filling positions that are vacant due to death, inability to perform duty or resignation.
Technically, Sessions was fired. Anyone who resigns at the request of the boss is fired.
11
If your boss requests that you resign, that is not the same as being fired. Being fired is the same as being fired.
Here is practical advice to ordinary people.
In the case of a person collecting unemployment benefits, if one resigns because her boss requests the resignation, the employee who resigns is not eligible for unemployment benefits.
1
According to this memo from the Justice Department, while the Attorney General is a principal officer who requires Senate confirmation, an "Acting Attorney General" is not a principal, but an inferior, DOJ officer and thus does not require confirmation. See DOJ Memo at 6.
But only last week, the United States Court of Appeals for the DC Circuit heard oral argument on the question of whether Special Counsel Mueller required Senate confirmation under the Constitution's Appointments Clause. The reason he does not, the argument went, is that he reports to, is supervised by, and must obtain approval from a Senate-confirmed principal officer of the Justice Department: Deputy Attorney General Rod Rosenstein.
Putting these two issues together, doesn't it follow that Acting Attorney General Whittaker, an inferior DOJ officer according to the Department, cannot supervise Special Counsel Mueller? That only a Senate-confirmed principal DOJ officer can lawfully serve as Mueller's supervisor?
By Monday, Nov. 19, both sides must submit supplemental briefs to the DC Circuit addressing the question of how the Whittaker appointment affects Mueller's status under the Constitution's Appointments Clause. Let's see if today's DOJ memo factors into the DC Circuit's resolution of the case before it.
9
In Trump's view, his appointment of Whitaker fits nicely into his world view of governing. He believes, wrongly, that loyalty to him over- arches concerns about the rule of law. Of overriding importance to the president is his insistence that such appointments are dependent on loyalty alone and must reflect his stated positions on all matters emanating from the White House. All else is unimportant.
3
Both the head and their deputies are confirmed by Congress, in part to assure that someone who had been properly vetted is ready to take the helm if the #1 person leaves or is incapacitated. It's the same reason we vote for the Presidential ticket, not just the President.
2
Matthew G. Whitaker, self described 'tough guy' and trump sycophant, has no business getting anywhere near an investigation aimed at getting the truthful facts concerning Trump's campaign, Trump's administration, and Trump himself. If this sycophant appointee tries to do ANYTHING to the Mueller investigation he should be immediately removed. Congress must act to guarantee the investigation in unimpeded, or we might as well just admit the GOP has a third world partisan mentality.
6
Has Trump & Co EVER read the law honestly, and in a way that isn’t self-serving?
5
How did Whitaker even get into the Sessions office in the first place?
He was recommended by Leonard Leo, head of the Federalist Society two months after Whitaker’s opinion article debunking the Mueller investigation on CNN. No doubt there was a plan for this move using the Vacancy Act at a later date.
5
of course the DoJ office of legal counsel made this finding
On January 31, 2017, the White House announced that President Donald Trump intended to nominate Engel to serve as the Assistant Attorney General heading the Office of Legal Counsel. Engel's nomination was opposed by U.S. Senator John McCain, a former prisoner of war who was tortured while in captivity. McCain cited Engel's involvement in commenting on and reviewing one of the so-called "Torture memos" that signed off on six different "enhanced interrogation techniques". Various human rights groups expressed concerns about Engel's nomination, also citing his involvement with the July 20, 2007, memo authored by Steven G. Bradbury, then-head of the OLC. Engel was confirmed by a 51–47 vote, largely along party lines with one Democrat, Senator Joe Manchin (West Virginia), voting in favor of confirmation.
3
I don't see a problem with Mr. Whitaker serving as the AG. Now, let's get back to MAGA! Thank you.
1
If by MAGA you mean being a bastion of racist xenophobes who are easily taken in by a charlatan, duped by propaganda, manipulated by foreign adversaries and give their tax dollars away to the top tenth of one percent of the rich, then you’re welcome to it.
3
Do some research and you will find that Whittaker is a ...crook! Should not be serving in anywhere near the DOJ!
4
The fox says it's legal to guard the hen house. The daily Trump.
4
We look forward to the court putting an end to this nonsense. We don't do kings.
5
How long is temporary? Legal complexities aside, the Trumpers cannot seriously be taking the position that a temporary appointee can stay in office indefinitely without the Senate's oversight.
12
it doesn't matter how long he can serve without being confirmed, at N-1 Trump can just appoint a new lackey
That is what is inherently wrong with an unconfirmed appointment in the first place
1
The key question is whether he will recuse himself, despite saying he would not. If he doesn’t, he puts himself in a very tenuous situation. And it’s obvious that Trump knew Whitaker before choosing him for the post.
11
Relax, people.
Trump's appointee Engel said it was legal to circumvent the confirmation process for Trump appointee Whitaker.
12
Arguably Whitaker should be disbarred for unethical actions taken on behalf of World Patent Marketing. Then we would have an AG of dubious validity who does not have a license to practice law. That would fit perfectly with the Trump administration, which has put the least qualified people in positions of supreme importance (Betsy DeVos, Ben Carson, for example).
17
Undermining the Special Counsel investigation would be Obstruction of Justice, a felony. Looks like the statute of limitations is ten years.
15
Yet again, the plain language of the Constitution is found insufficient and it falls to President Trump's administration to provide what the founders should have said.
8
I just read the Eaton Case cited as the Constitutional basis for interpreting the appointments clause -- and am astounded that anyone who is good enough of a lawyer to serve in OLC (its considered extremely prestigious, usually attracting top grads of top law schools) would offer it as binding precedent in this way. The memo fails to note that Eaton (1) is really a case about compensation NOT power to appoint and (2) that it stresses that appointments for principal officers not approved by the Senate can only happen under "special and temporary conditions." It requires BOTH, not just temporary. The special condition in Eaton was the life-threatening illness of a US Cnsul in Bangkok in the 19th Century. Unable to remain on post, he designated his deputy to perform his official duties. In the era of ships (not planes), it was a special circumstance because, otherwise, no consular activities could take place -- and we all know they are pretty important. The memo fails to acknowledge the "special circumstance" requirement. And does not argue at all why Whittaker's appointment fits the bill as "special." The writer would probably get a B- or a C at any decent law school for missing that part of the analysis. I look forward to MD AG Frosh's able barristers taking this apart!
26
If Engel's memo holds water, then Trump could replace his whole cabinet by this same mechanism with anyone he chooses. That is an absurd result. The Constitution does not envision it (because it requires Senate advice and consent) and the Vacancies statute clearly did not intend such a result. So the memo does not hold water. Obviously forcing Sessions to resign is not analogous to replacing a consul who vacated a post due to extreme illness. The former involves the president abusing his power. The latter involves the president temporarily plugging an unforeseen gap until the required procedures can be completed. If such a historic example is the best Engel has to offer, he should be laughed out of court.
15
I read a comment somewhere saying if this is accepted and Whitaker refuses to recuse himself, or if he tries to choke off the people's taxes being used to fund Mueller (as he has suggested) a go-fund-me should be started for the Special Counsel's Office.
How rotten things have become that go-fund-me is seen as the only solution to enable justice and the rule of law to work free from Trumpian obstruction.
11
This is desperation time for Trump. Despite his incessant protestations of innocence, he's in trouble if the Mueller investigation reaches its natural conclusion.
He gave it his all during the midterm campaigns, but that was pretty pathetic with a predictable wipeout in the House. Now Devin Nunes is just a disgraced member of the House Intelligence Committee.
If Whitaker can't protect him, I predict Trump will begin working on his exit strategy. He didn't expect to win in 2016, and, aside from his rallies and signing photo ops, he's pretty miserable doing the little amount of work he does. He can offer to resign in favor of Mike Pence, but only on condition of full pardons for him and his family (and maybe a farewell military parade). If he's willing to spend the money, Trump can probably fight state charges to a standstill such that he can avoid jail time.
If things play out this way, 2020 will be a Republican wipeout. But it will be too late to save the Supreme Court from 5 or 6 radical conservative justices. Maybe the Dems, with filibuster proof majorities, can add 2 or 4 more justices. I know that's what Mitch would do if positions were reversed.
13
@Michael Tyndall
Trump's exit strategy seems to be to overturn the Constitution, with a civil war if necessary.
He keeps attacking the Constitution and claiming he can do whatever he wants. He says that he can decide who is a citizen by executive order, for example.
At the same time he keeps repeating memes that come from hate groups in the alt-right, reminding them he is on their side and encouraging them to more violence. Right-wing terrorists have killed more Americans than international terrorists, and they are all fans of the Confederacy, the Nazis, and Putin.
The Party of Trump opposes almost everything in the Constitution. Read it!!! And have been trying to block its implementation for over a hundred years.
Look at how they call the Bill off Rights "technicalities" and keep demanding exceptions to them, over and over. The prohibitions against testifying against yourself, and against cruel and unusual punishment clearly prohibit torture, but the right is for torture. Miranda is based on that, but Republicans think that if the government violates your rights, it shouldn't affect your case.
The Bill of Rights also demands that defendants are represented by a lawyer, but Republicans refuse to adequately fund public defenders.
The first thing required by the Constitution is Justice. Republicans constantly replace it with law and order. They are not the same.
Trump is a White Supremacist whisperer who thinks We the People are here to serve him.
He won't go quietly.
3
@McGloin
I agree Trump won't go quietly and will abuse our Constitution for his own ends as long as he's in office. But if he sees an imminent and significant threat from Mueller, I think he'll start to look for a deal. Alternatively, Congressional Republicans may give him a choice of jumping (with a small parachute) or being pushed.
2
The argument here is that the President and numerous people associated with him appear to be seriously compromised legally. The President should not be allowed to pick an AG that has already decided for the president,
9
Simple Scenario.
Dems take the Senate, Trump wins re-election and nominates cabinet candidates that are acceptable to the Dems, fires them once confirmed and simply replaces them with his handpicked swamp creatures.
GOP keeps the Senate, Dems take the Whitehouse and nominates cabinet candidates that are acceptable to the GOP, fires them once confirmed and simply replaces them with handpicked socialists.
Poof goes the constitution.
6
Maryland will win in District Court, the United States will appeal and the Supremes will vote for ...Maryland.
5
If Americans accept this reasoning, a President could perpetually circumvent the Constitution and Congress' "advice and consent" simply by rotating "acting" Cabinet members. While this scheme would obviously be disruptive to government, for the Trump Administration a 7 month stint represents a long shelf life!
Additionally we must assume Supreme Court judges who've portrayed themselves are originalists or strict constitutionalists would patently deny the Department of Justice argument so it should be DOA at SCOTUS.
33
It is a long-regarded rule of statutory construction that when two different statutes appear to address the same subject area, it is that statute that more specifically deals with the issue at hand that prevails. Thus, a statute of general application must give way to one that more directly deals with the question presented. Furthermore, the general Vacancies Reform Act was passed decades after that statute specifically dealing with the Attorney General's order of succession, and fails to curtail or address the continuing viability of the more specific law.
18
Of course ethics should require Whitaker to recuse himself. It could hardly be more obvious. Ethics would also require that Trump not make any public comments about the Mueller investigation, and especially not anything prejudicial, like referring to it as a witch hunt. But then ethics and the Trump Administration would appear to have nothing in common.
51
Article II, Section 2, of the Constitution puts judges of the Supreme Court, Ambassadors, and the heads of the departments of the Executive branch in exactly the same basket: all must be nominated by the President and confirmed by the Senate before they can assume the duties and powers of those positions. If a president can appoint an "acting" or "temporary" attorney general, then a president can appoint an "acting" or "temporary" Supreme Court Justice. But nobody thinks a president can do that. Under the Constitution, there is no such thing as an "acting" or "temporary" Supreme Court Justice, and there isn't such a thing as an "acting" or "temporary" Attorney General either.
What this means is that calling Whitaker an "acting" AG doesn't make him one, since under the Constitution there is no such thing. Whatever you call Whitaker, the bottom line is that under the Constitution, he cannot give a legal order to the Senate confirmed Deputy Attorney General, who is currently the Constitutional head of the Justice Department. The Deputy AG not only is not required to follow any orders from Whitaker, since he is not his legal superior, the Deputy Attorney General is constitutionally obligated to refuse to follow any orders from Whitaker.
47
I agree with your assessment about AG but not the analogy of Supreme Court Justice as the latter has term if good behavior so would have to be impeached and convicted to be kicked off Court.
@Wayne The Constitution simply makes no distinction between Supreme Court judges and heads of the executive departments. It also provides in Article II, Sec. 4, for the impeachment of the President, Vice-President and other "civil officers of the United States." An AG, unlike a Supreme Court Justice also isn't appointed for life. So what? That doesn't make any difference to how they have to be appointed, for their appointment to be Constitutional. The fact remains that Whitaker has no authority to give orders to the Deputy AG, the Deputy AG has a constitutional obligation not to follow orders given by Whitaker because he's not his boss, and he has a constitutional obligation to countermand any orders Whitaker attempts to give to justice employees which the Deputy AG disagrees with.
2
Just because Mr. Engel says it does not mean we have to accept it. I'd like to see it go through the courts. His reasoning is weak. A consul in Thailand in the 1800s is not the equivalent of an Attorney General appointment. A pre-Civil War statute is not necessarily applicable either.
The real problem is the current, remaining lack of checks and balances. Congress remains determined to keep party over country at least until the clock runs out on the Republican House of Nightmares.
32
readers should hit the link on the Democratic letter to DoJ Ethics Officer and in particular note the quote cited in footnote #4 about "the left".
The NYT seems to be ignoring some of the most egregious remarks by Whitaker, that display what is a disqualifying radical right wing political bias.
11
We have Trump laws and coming soon to a theater near you the Trump Constitution. Let's bend and break all of this stuff for Trump supporters. We only need the extreme right. It is fairly easy to challenge issues of law and the constitution when the extreme right has the only say. Now the Supreme Court is also turning extreme right, so don't look to them for support. I wonder how many employees in the Justice Department agree that Whitaker should be in this position. As he squeezes Muller out of his job, there is now no one to stop it. Unless it can wait until the new congress is in office.
9
Weaponizing the law has always been Trump's m.o. and how he has managed to evade prosecution for decades. This has been a set up from the get-go to give him immunity and impunity.
1. Kavanaugh: "a sitting president cannot be indicted during the term of office"
2. Whitaker: "It's a fishing expedition".
"I could see a scenario where Jeff Sessions is replaced, it would recess appointment and that attorney general [ME, I volunteer] doesn't fire Bob Mueller but he just reduces his budget to so low that his investigations grinds to almost a halt."
13
He’s evaded prosecution for decades, and Grand Jury appearances, because he was an informant for Giuliani during for all those mob cases. How else could he have avoided prosecution in the construction/cement industry during the 80’s and 90’s....and why do think the FBI NY office protected him and essentially rooted for his campaign?
2
Laws are for little people. Mr. Trump is enormous, perhaps the biggest person who has ever walked on the face of the earth.
End of discussion.
10
Made me laugh in a sad way...still nice to have a laugh. Thanks.
3
The appropriately discussed legal details here are the substance that theoretically hold together a society with many and diverse interests. The reality, however, is this: Trump and associates could not possibly care less about the specifics. They are not interested in where the law determines their claim to power ends. Their power ends exactly and only where they are stopped. Until they are stopped, they will continue to expand their power outwardly, generally,and exponentially. They are as addicted to expanding their power as termites are to expanding their nests. The insect metaphor is very intentional, btw. The only way to eliminate an insect infestation is to eliminate the insects. All of them.
13
> Mr. Engel argued that the better interpretation was that the president can pick either option.
Does this make any sense? If one of the options is that the president can pick whomever he wants, what is the point of the law specifying the order of succession?
35
The Constitution may not prohibit this but statute apparently does. It doesn’t make it unconstitutional to make a law to make sure the spirit of the Constitution is followed. The first assistant has been confirmed. He’s qualified. This guy Whitaker wasn’t even in a linear way put in the position to assume the office. Not to mention he is under investigation by this own department.
19
If it is legal for our President to appoint Matthew Whitaker as acting Attorney General, then it would be legal for him to choose anyone for that office. That means he could appoint Sean Hannity, Ivanka Trump, Jared Kushner or … fill in the blank. It is patently absurd that someone could hold such an important position without the approval of Congress.
53
The DOJ legal opinion claims that the Succession Act and Vacancies Reform Act are alternative methods to appoint a successor to temporarily succeed a vacancy in the office of a “principal officer” such as the Attorney General. The alternatives are coequal. In this case, the choice is at the president’s discretion.
Such a reconciliation of the two provisions is a figment of DOJ’s imagination. The two provisions are not alternative selections on a Chinese menu where a customer can choose either one from column A or one from column B. That is not how Congress legislates. Instead, a holistic reading of the two provisions would favor an unequal reconciliation. In this case, the Succession Act is predominant unless circumstances render its directed order of succession impracticable in which case the VRA would apply. To reverse that order of priority would produce an absurdity because it would render the Succession Act meaningless because the President can do whatever he wants. It is a bad principle of statutory construction to force an interpretation that would render legislation as flawed. If the latter result were intended by Congress, Congress would have enacted the VRA and repealed the Succession Act.
Regarding so-called past precedent, every one of the cited 160 examples requires careful scrutiny. In most cases, temporary appointments are inconsequential and involve delegation of responsibilities which are ministerial. That is hardly the fact in the instant case.
12
It's hard to read the "appointments clause" of the Constitution (in Art. II, Sec. 2) and not be convinced that a cabinet officer must obtain "the advice and consent" of the Senate. The whole point was to prevent the Executive (here Donald Trump) from asserting control or tyranny over the government. The choice of Matthew Whitaker to head the Department of Justice (DOJ) clearly violates the Founders' intent in that Mr. Whitaker's major qualification is that he will inhibit the investigation of the Executive by Special Counsel Robert Mueller. To argue that this is not a massive conflict of interest that the appointments clause is meant to prevent appears to be legal malpractice and enabling the subversion of the very "rule of law" that the Constitution requires the DOJ to protect.
22
@Paul Wortman
You are stating facts that are not in evidence "Mr. Whitaker's major qualification is that he will inhibit the investigation of the Executive by Special Counsel Robert Mueller".
Perhaps you can provide some evidence of actions, not words but actions, that anyone has taken to stop Mueller from proceeding with his investigation.
1
Next we will hear that ethics officials don't believe that Whitaker must recuse himself from overseeing the Mueller probe. The justice department is now a shame agency that works direct for Trump and his personal benefit. Expect the GOP and the SCOTUS to support the coup. It appears that we now have a king.
11
@Chris
Worst still ,you may hear that the ethics department of the DOJ has been disbanded by Whitaker.
2
Just count this as one more piece of evidence for obstruction of justice by Donald Trump.
I'm pretty certain that Robert Mueller is taking notes.
22
Say we're forced to accept the argument that hoary old precedent gives the president this particular power despite Congress' intent with the law of 1870... we still have a right to know what "temporarily" means.
Does it mean they hold the post only so long as the president is making a good-faith effort to get a permanent replacement approved? Or is it an open-ended invitation for the president to drag his feet?
And if an appointment is not meant to last, can limits be placed on the acting official's power? It seems to me a temporary official's mandate should go no further than preserving the status quo until a properly vetted replacement can take over.
That's not to say we should handcuff our officials so they can't respond to crises, but how can we have good government if presidents can ask any old bum to do his dirty work?
7
Finally, Trump administration found the adults in the room. Based on legal analysis and good faith, Trump can appoint whoever he wants as long as Acting Attorney General works temporarily.
3
@Ivan Define "temporarily" if you please.
So the Assistant Attorney General wrote a letter to the Acting White House Counsel expressing an opinion regarding the appointment of a temporary Acting Attorney General.
I feel so much better now.
7
Deat Mr. Engel,
I would like to congratulate you in ruining the rest of your career. The deputy AG (Rod Rosenstein) should become the AG. You are allowing a guy who was part a a company that defrauded millions of dollars from people, who was also all over TV stating Mueller needed to be stopped to become AG. The simple question you should ask yourself...are there no better candidates? At this point Cellino and Barnes would be a better pick!
17
@SteveNYC
The issue is, no one but the president gets to decide who the next AG will be. The Senate can confirm or not, but not congress as a whole, not you, not me.
The better candidates will be selected from for the nomination.
@Steve Don't you mean "only the best" candidates will be selected? How's that working out so far?
While it's plainly obvious this highly unqualified person was chosen to do Trump's bidding, I think the Mueller investigation is only a small piece of the puzzle.
Trump has made it clear that if the Dems investigate him that he will take a "war like" position, and he also said that he can investigate them better than they can investigate him...
Perhaps Trump has (once again) revealed his strategy by just blurting it out, but I imagine he wants his good-soldier as AG to investigate whomever is investigating him.
Banana Republic... isn't just a store - it's now a way of life in this White House
#sad
18
The U.S. Department of Justice has been compromised. Now what the heck to we do?
9
One of the benefits of all this is that come 2020, if the Dems win the White House, they can RICO Trump enterprises, sell off all his holdings, and throw the whole famn damily in jail. Then executive-order an increase of 4 more judges to the SCOTUS, and, finally, increase the House to the proportional seat-to-population that existed the last time the number of Members was set.
Trump has made everything possible, since the GOP is already on board with things.
13
"But Mr. Engel argued that the better interpretation was that the president can pick either option."
I bet Mr. Engel did think it that was better. But if you have a general law on filling Vacancies, and a specific law that applies directly to Attorney General succession, the logical choice is that the Attorney General Succession law is an exception to the general rule. That is especially true when the general law allows you to circumvent the more restrictive law. And then there is the sleazy and corrupt factual background. Bye, Mr. Whitacre.
5
So Trump could just pick anybody off the street to be Acting AG?
6
@Mary
I had the same thought. Why didn't Trump simply take some homeless person and give him a job since credentials don't seem to be required.
So the guy who was questionably appointed says there is no question about it... shocker...
6
why is the justice dept getting behind Trump???
5
@lshively
Follow the money.
So, the underlying basis for the MD lawsuit is “we don’t like Trump.”
4
@RS
Did you even read the article?
10
@RS Easy to see why.
1
@N. Smith
Do you understand the word "underlying"?
1
Maybe so, but he must recuse himself from the Russia probe.
Period.
Otherwise, the tern "conflict of interest" has no meaning. .
3
Lawyers defend their new boss! Wow, what a headline. Fake news? Then maybe better reporting could fix it: Lawyers defend the white guy who could be their new boss! There you go, now that’s accurate and should make everyone happy.
4
I would think that recess appointments would be relevant here. And the Supreme Court has held that such appointments are rarely authorized. It is difficult to determine why recess appointments should generally be impermissible while short term, acting appointments are generally permissible. There is little difference between the two.
What a compelling legal opinion! No 20th century precedent. The author has to go back to an 1898 case and the Washington Administration.
Remember, this is only a lawyer's opinion rendered at the request of his employer. This same office concluded that waterboarding was not torture - even though there was federal precedent on the books to the contrary.
38
So, it matters not that Mr. Whitaker has been referred to as being "stunningly unqualified" for the position. Can you imagine being described not simply as unqualified to perform a particular task but "stunningly" unqualified...and still getting the job.
Hooray for America! We have a "stunningly unqualified" individual presently filling the position of this nation's chief law enforcement officer but at least he attained the position legally!
Forgive me please but I find no relief in that realization.
45
Can you imagine any CEO of a Fortune 500 company saying at the end of the interview for his new COO or chief legal counsel: Congratulations, you’ve got the job as I see you are stunningly unqualified!
11
And of course, the president himself is stunningly unqualified.
20
Trump wants to bend and shape the Constitution to his personal needs. It's clear that he is spending a lot of time on this matter because his main goal is to find an indirect way to put a definitive end to the Mueller investigation.
29
@Armando He couldn't do this without the old boys in Congress bending to his whims. When push comes to shove they're going to line up like lemmings again, no doubt with Lindsey Graham screeching about how shamefully insulting it is to challenge Whitaker's fitness for the office.
9
This is the same office that looked the other way, ignoring our country's long-standing history of NOT allowing our highest officials the ability to reward family with coveted positions, when Trump, in a blatant act of nepotism, insisted on hiring his daughter and son-in-law for jobs they had neither the skills nor the experience for.
In other words, I don't put much stock in an Office that's become sadly partisan at the expense of tradition, law and ethical standards.
25
The reason that no precedent for this appointment of Whitaker exists for the last 150 years is there's no legal justification for it. The current Justice Department, as transformed by Jeff Sessions, improperly had to rely up the practices of the original office of the Attorney General as established by the Judiciary Act of 1789. That was a part-time job for only one person. The appointing of temporary replacements was deliberately lax because there was constant a need to replace the one part time attorney who fulfilled the role with someone else as no one could afford to hold the position for any set period of time. The idea of exploiting the revolving door of the original attorney general to subvert the need for Senate approval of a principal officer is preposterous. Further, the mandate of the original one person AG was entirely unrelated to the current AG and the DOJ.
The bill creating the DOJ was enacted in 1870 and consolidated a large number of federal bureaucracies. The post-Civil War Justice Department was original not only in fundamental structure but in fundamental purpose. The Department's primary function was changed to preserve civil rights. It set about fighting against domestic terrorist groups using violence and litigation to oppose the 13th, 14th and 15th Amendments. The Department of Justice's main role was to vigorously prosecute Ku Klux Klan members.
This current decision was only possible because the DOJ has been transformed by Sessions, a Klansman.
19
Members of Congress on both sides of the aisle have said they would introduce legislation to protect Mr. Mueller and his investigation. The actual facts of Russian meddling were disclosed to then President Obama and President-Elect Trump by John Brennan former CIA chief under Obama before Trump took office.
5
@DOUGLAS LLOYD MD MP I wholeheartedly agree with you but must offer the following sad enhancement.
Senator McConnell has refused to put this legislation to the floor for argument and vote. He is complicit in President Trumps crimes as s Mark Meadows, Devon Nunes and Jim Jordan among many others.
All have gone out of their way to block the due diligent analysis of potential crimes and misdemeanors committed by this administration!
7
@TDV Points well taken. Jeff Flake and Bob Corker are not running and may be expected to at least introduce legislation. Up to now, they have not been reticent in criticizing the President Even retiring Speaker Paul Ryan has said that nothing should stop the investigation. You are quite correct that the rank and file Republicans will try to block any legislation, But I would not rule out the introduction of legislation. It would be newsworthy if a bill is introduced. I'm sure the media would widely cover the legislation if introduced. Just the fact that it is in the hopper would cause many Americans to take notice. That might have some salutary effect.
@DOUGLAS LLOYD MD MPH
I missed that. Help me out with the factual reference. Thank you
If the president can choose whomever he likes, how come we can't choose someone we like to be president? Two Republican presidents (Bush 2000 and Trump 2016) were chosen by a supreme court justice and an electoral college. If the president has such direct access to staffing and employing who they want, then ought not the Constitution be amended so the Fourteenth Amendment isn't contradicted?
5
Rod Rosenstein said Whitaker will make a “superb” interim AG. Democrats will just have to deal with it. What are they worried about anyway? Their politically motivated, phony probe that still can’t prove Trump colluded with Russia is in jeopardy? You can’t prove a negative. But you can waste taxpayer dollars.
3
The Department of Justice also generated memos on the travel ban, voters rights, family separation at the border, emoluments, the census citizenship question ...
This is Mr. Trump asking the government's lawyers to do a deep dive in the law and case history to justify the breaking of norms and laws ... and just plain erratic and poor decision making.
18
From 28 U.S. Code § 508 - Vacancies:
"(a) In case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office".
According to this statute, Rod Rosenstein now has the authority to "exercise all duties" of the office of Attorney General. I don't know whether you would call that "acting Attorney General", but as long as Whitaker is employed by the DOJ, he is a subordinate to Rosenstein.
15
@George Bradly
The key word is "may" not "will". Nice try though.
Let’s be perfectly clear.
The Trump administration been researching and working on this for over a year. They were fully Weaponized and ready the fire Jeff sessions when they did, and I’m sure the lawyers have been working overtime to be ready for a response.
The reality also is that this is a scam and it will be the makings of a constitutional crisis. Those are facts. Now we have to live through them.
27
So, following Trump logic when Trump resigns we ibypass VP and Cabinet officers in line of succession a and appoint White house Chief of Staff without vetting to the Presidency.
19
What's being overlooked here is that the appointee is strikingly unqualified for the position.
22
@loveman0
Help me out here. Please list the position requirements for Acting AG, and which ones he lacks.
@Steve. that we know of: lawyer--on the board for an outfit just convicted of fraudulent activity, possibly facing a criminal indictment, being investigated for this; lack of impartiality in an ongoing DOJ investigation; limited legal experience
Add to that his appointment is plainly made to act as a Fixer for Trump. This is the way Trump has handled nearly all his personal prosecutions in the past. Senate confirmation is clearly related to Separation of Powers, vacancies in the distant past have to do with long distances for Senators to meet when out of session, and more recently, the Vacancies Act has not been adjudicated for Cabinet positions, especially when a regular constitutional process is readily available i.e. the intent of the Act is not to get around Advice and Consent; there is also a customary and normal process within the DOJ.
"Engel's nomination was opposed by U.S. Senator John McCain. McCain cited Engel's involvement in commenting on and reviewing one of the so-called "Torture memos" that signed off on six different "enhanced interrogation techniques"
John McCain's opposition to Engel is good enough for me. Engel is just another, "I was just following orders" individual.
No backbone.
33
Under this logic, the president could appoint me, or an axe murderer as Interim AG. I’m confident that’s not what the constitution or the Vacancies Reform Act intended, nor how they will be interpreted by a court of law.
18
Let's hope Mueller and company have digitized EVERYTHING.
11
@LMT
...and have multiple copies!
Trump's gov reminds me of the Untouchables Movie but in today's version it's the criminals who are untouchable and Al Capone rules the roost. It is laughable that the suspected felon gets to pick the fox who will guard the hen house.
The felonies aren't limited to the crooks who are perpetrating the crimes. The republican controlled senate bears an equal share of the blame and should be tried for conspiracy, aiding and abetting.
I didn't serve 5 years in the USMC to watch a bunch of crooks debase the country I swore to defend. Likewise, McCain & Eisenhower must be rolling over in their graves watching the horror that's become of their party.
13
Critical thought process of Trump's supporters.
Obama didn't make the appointment.
A Clinton didn't make the appointment.
Therefore it's Constitutional.
Scary.
16
This is ridiculous! Can the DOJ please use common sense?? Whitaker is a tool for Trump to use to discredit, or even halt, the Mueller investigation. We can't fight blatant corruption from a person with destructive intent (Trump) with legal arguments based on esoteric jargon and unrelated precedent. Simply outrageous!
15
And who would expect anything other than this coming from a Justice Department which has been in Donald Trump's back pocket ever since he first selected Jeff Sessions as Attorney General?
16
GoodnessGraciousSakesAlive! as Coach John Wooden would say. What is this long-winded gibberish all about? Article II, Section 2, Paragraph 3 of the U.S. Constitution clearly and unequivocally gives the president the power to fill up all vacancies when the Senate is in recess, as it was when Mr. Whitaker was appointed. Anything to the contrary would require a Constitutional amendment; legislative statutes can not amend a provision of the Constitution.
1
@John Cahill The Senate was not in recess. It had met the day before, in fact. See the calendar at https://www.gpo.gov/fdsys/pkg/CCAL-115scal-2018-11-06/pdf/CCAL-115scal-2018-11-06.pdf
5
@John Cahill
...so if I'm reading the constitution correctly, Whittaker can only be active AG until Friday when the next Senate session ends.
"The President shall have the power to fill up all Vacancies that may happen during the recess of the Senate, by granting Commissions which SHALL EXPIRE (my emphasis added) at the End of their next session."
Whittaker was appointed on November 7th. The next Senate session ends on November 16th.
https://www.senate.gov/legislative/resources/pdf/2018_calendar.pdf
5
But they can help to carry out roles where the Constitution places responsibility. Also it does say that inferior officers and judges can be hired without confirmation if the President by law is given that authority. The law indicates that it did not leave that wide open for the President to do what he did.
1
This article, also in today's NY Times, may bring hope from an unexpected quarter. It certainly underlines the profound seriousness of our present president's actions.
"Conservative Lawyers Say Trump Has Undermined the Rule of Law"
"Some members of the Federalist Society are urging their fellow conservatives to speak up about what they say are the Trump administration’s betrayals of bedrock legal norms."
9
he is the justice department... this administration is the most corrupt in history, at least my 4+ decades of voting age....
5
Much like references to the much ballyhooed memos on whether the traitorous-criminal-sub-moron-racist in chief could be indicted, the new OLC memo is both simply wrong and not legal precedent. That some Yale trained lawyercrat “authorizes” corrupt conduct among his corrupt politician classmates don’t make it true. Even war criminal and Times favorite guest columnist on the rule of law, torture guy extremist John Yoo, has to admit the truth. This appointment is unconstitutional under the plain text of the appointments clause of our constitution (“textualists” nod in agreement) and not permitted under the (Sutherlandly) more narrowly drawn succession statute directly pertinent to Justice. I believe you know Mr. Rosenstein.
4
It looks like it's legal to appoint someone under investigation for scamming military veterans out of their life savings to be acting Attorney General. Where does the corruption stop?
https://www.theguardian.com/us-news/2018/nov/09/matthew-whitaker-acting-attorney-general-wpm-scam
9
It may or may not be legal but it's clearly stupid and ill conceived. This stooge may be dumb enough to throw himself under a bus for trump, but both of them will be exposed and it won't be pretty.
16
Trump has been caught with his pants down (again), this time not while in hotel room with a woman not his wife.
The simple fact is he moved impulsively, with the plan of acting now and seeking justification later.
He has violated the Constitution and our underlying laws. His appointee has no more authority to run the DOJ than a staff attorney at that same Department.
If our Courts and Congress allows this to stand, they will have eviscerated our Constitution, and we will truly be subject to the whims of an idiot-king.
9
These sorts of push backs by a corrupt administration further erode the rule of law. If Congress does not step up or this action is not stopped, we are another step forward to becoming a fascist state. The Republican-led Senate will continue to confirm judges who will allow the rule of law to be eroded gradually, eventually destroying our beautiful and sometimes messy democracy. And what will be left: a tyrannical state that will eventually destroy itself from within as it destroys the diversity and intelligence of the people. I read with interest the letter that Einstein wrote in 1922 about the rise of anti-semitism in Germany, and 10 years later, the Nazis took over. Do we really want wanna-be despots like Trump to be in charge? If we allow this skirting of rule of law, that’s what we are giving to our children.
4
What a ridiculous farce. We have a memo from a lawyer who declares that the appointment of his new boss by his boss's boss is totally constitutional. Yeah, okay, that's totally unbiased and impartial. That's not totally sucking up to the new boss and the boss's boss.
Give me break.
Already we are seeing the Department of Justice being perverted to serve not the American people, but as Trump's personal legal team. Besides, the Office of the Legal Counsel has a tarnished past, what with memos assuring the Bush Administration that government-sponsored torture is totally legal.
13
Just another demonstration of the winning that comes from Trumpland-the appointment of lackeys and bootlickers willing to work in the best interest of Trump rather than the country.
I would like to ask Whittaker if he remembers his oath taken when he was hired.
6
What would Republicans be saying if Democrats tried to do something similar?
In fact, what would Republicans be saying if Hillary had been elected and refused to show her tax returns.
And the Whitewater investigation was about Bill Clinton's personal finances before being president. 4-1/2 years and $100 Million in today's dollars. And they impeached Clinton for lying about sex with Monica Lewinski.
Compare that to the Trump children saying in public they get all the money they need for investments from Russian investors.
And after this last Ryan / McConnell / Trump tax cut, the 2018 projected will go from $600 Billion to $1 Trillion and we will add $12 Trillion to the debt over the next ten years.
This is after 8 years of Republicans relentlessly complaining about the debt during Obama. All Republican senators voted for the tax bill. Not one Democratic senator voted for the tax bill.
Already Ryan and McConnell are talking about cuts to Social Security and Medicare.
Finally, I am old enough to remember when Republicans were pro-FBI and anti-Putin. That seems so quaint and a long time ago.
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@Independent
What would Republicans say? We know. They sued President Obama for abuse of his powers when he had to resort to executive orders to bypass a Republican controlled Congress who refused to do anything (except voting to repeal the ACA). But they have no problems with President Trump putting them to pastures and signing one executive order after the other.
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In related news, the proverbial fox vociferously defended its corrupt right to guard the hen house, eat the hens and rename it the fox house.
Robert Mueller, please activate the safety valves and prepare for the wide dissemination of exhaustive facts demonstrating Trumpian crimes against the American republic.
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@Socrates
And whatever Gods may be, please protect Robert Mueller.
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Lawyers of the highest pedigree can argue over whether, by ignoring context, a colorsble case can be articulated for the technical sufficiency of Trump’s decision, but fair-minded people guided by common sense will see this as a nothing other deliberate and calculated side step of the constitution. It is precisely the sort of accumulation of power the Founders sought to prevent.
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@Adan Schwartz, I agree, MOTIVE is the most important, indeed almost the only factor of importance here - and though motive is very difficult to prove {even the bible, of all sources, says so}, yet we can each make common sense judgments about motive, can we not? Hence my concurrence with your obvious conclusions.
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@Adan Schwartz
It depends...if Trump submits Whitaker to the Senate, then there is no sidestep. Remember, Whitaker is _Acting_ AG.
I'll leave the legal arguments to the experts but his appointment is still a massive conflict of interest. There are strong, convincing indications that he was appointed explicitly to protect the president. That should be enough to make him ineligible and/or to be recused from the Mueller investigation.
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Putting aside the question of legality, where is the leadership from the Republican-dominated Senate on holding hearings to confirm Whitaker? If they cared, they could hold them now
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@Thomas, true, and all the more reason that, come 2020, the Dems need to flip the Senate to harness this out of control regime that currently inhabits the White House. Only with an unquestionably Hostile Congress that is eager to exercise oversight, will true leadership and Congressional oversight be accomplished.
9
They don’t care.
As I like to say, "see you in court, and then we can have a legal argument."
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How ridiculous. So Engel honestly believes that the most logical way to interpret the Constitution is that the President can deliberately and completely defy the requirement of Senate confirmation simply by appointing and then firing a continuing series of "acting" heads of each cabinet position, federal judges, etc.?
What a great way to serve the American people!
Brilliant work, Engel.
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Alberto Gonzales is back!
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Re: "But the Constitution does not mandate that choice."
Did I miss the part of the constitution that speaks to appointing acting principals let alone the part about appointing acting principals without approval?
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Sadly, the Justice Department is under the jurisdiction of a so-called "administration" that does not recognize the US Constitution, the rule of law, democracy, ethics, morals, or anything but the mandates of a would-be dictator, who, by means of ego and ignorance, will lead us all to ruin.
Vladimir Trump, of course, is delighted.
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Trump surely has a knack for finding his political "soulmates". He did it with Kavanaugh and now this. It's quite obvious that Whitaker was installed to act as Trump's "bulldog" in protecting his interests. It's the way Trump has done things all of his life, it seems, but even though an installment such as this is "legal" and "Constitutional", how can this particular individual past muster when he-- himself-- has been under FBI investigation--the very office of which he now presides? (The oddity of this parallels the Trump presidency quite nicely, doesn't it?) Also, for obvious reasons, Whitaker has gone on the record with blatantly biased commentary on Fox,etc. as to the Mueller investigation. Okay, so such things are "Constitutional", but what of this particular individual? How does that stand? And also--just how long is this "temporary" installment, anyway?
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@spirited33, yet the Far Right continues to label the NY Times and WaPo as "fake news", while at the same time coronating Fox News & Entertainment, inc., an obvious Shill for and Propaganda Arm of the President {not to mention terrible journalism!, as the only true and reliable source of what is really going on with our government. :(
5
Nothing about this guy says he's here to do the right thing.
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@Andy
That's exactly why he got the position.
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In Trumpland, fealty to the King is what qualifies, and Constitutional niceties are to be rationalized away.
The Appointments Clause is clear, in that it exists to prevent a power grab by a President, contrary to legislative oversight and basic levels of qualification of candidates for positions that have national importance. This was not an emergency vacancy, but a well-planned take-out of someone Trump determined was not loyal enough. There are Constitutionally qualified people who could have been put into the acting AG role.
Could Whitaker get through Senate confirmation? Even with the current GOP leadership, it's hard to see that he could. So, why put him in charge of the DoJ? Because there's knife work that needs do'in, for Mr. Trump. That's why.
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Republicans would confirm him in a heartbeat. At the direction of their dear leader with any and all necessary carrots and sticks. Problem is it would take a precious week or 2 that the nation’s criminal-in-chief does not have. Tick tock. And tick tock for us, too. If he gets Mueller out then we have a king. One expect the incoming democratic house would be arrested. And one would expect republicans to assist with their ouster. Tick tock, folks.
Lawyers may argue over technicalities in various statutes, but one thing is clear. Installing Whitaker violates the spirit and intent of the constitution by disrupting the balance of power among different branches of government.
Furthermore, it is clear that Trump's intent was precisely to bypass a Senate confirmation process and subvert this constitutional requirement. Trump knows that appointing a Senate-confirmed AG would have likely resulted in protecting the Mueller investigation. He acted out of fear.
And this is much bigger than the Mueller investigation. We are at critical junction now in the path our democracy will take. Will our courts protect democracy or allow it to further erode? That's the key question.
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Would that be Trumpy's Justice Department? well gee
12
Absolute conflict of interest, same with Kavanaugh
This is pathetic.
Just look at the characters Trump is spoiling our nation with.
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@Getreal, true, this current regime and the corrupt Political Party controlling it, is morally bankrupt and utterly corrupt! This current, distasteful evolution of 'GOP' has succeeded in corrupting all three branches of the Federal Government, including the SCOTUS!
And I speak this sadly, as a former Republican of many years. :( So that the only solution is the Ballot Box, whereby we the people VOTE THEM OUT - and if we succeed in doing that in 2020 and beyond, good - and good riddance to such blatant and irresponsible corruption!
12
OUR justice department - under the direction of a man under FBI investigation for fraud - says his appointment was "legal".
More proof that the International Mafia Robber Baron/radical religion Good Old Boys' cabal has taken over OUR government.
OUR United States of America is in a Constitutional Crisis.
WE THE PEOPLE must DEMAND that this crook be ousted by whatever means necessary right now. WE must not let them destroy OUR government any further.
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@XLER
I heard Hillary is running a book of the month club out of a Starbucks -- perhaps Republicans can investigate that as well.
Well, there were toadies back at Yale Law when I was there 50 years ago. Steven's just a later edition. Sophistry at its best.
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@george eliot
"... Sophistry at its best...."
Sophistry? yes.
Best? get real.
One does NOT need a diploma from Yale to shoot down Engel's idiotic and transparent attempt at sophistry.
Of course the White House lawyers pushed back, cited precedents and generally interpreted this rule in the President's favor. However it doesn't take a genius to understand why Trump would choose Whitaker over Mr. Rosenstein, especially given his numerous statements speaking out against the Mueller investigation, he was literally auditioning for the job. Heaven help us if this has to be settled by the Supreme Court.
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I would really like to know what type of drugs Mr. Engel is taking.
The constitution reads "to administer the federal government, the president commissions all the offices of the federal government as Congress directs" and I do believe that means it does mandate the choice.
So Trump's head lawyer interpret's the constitution the same way Trump does, by saying it can mean whatever Trump wants it to say.
The states AG's need to jump on this so it can go before Trump's private court appointee Kavanaugh, then he can show the country how to kiss Trump's butt.
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What’s the point of having the senate confirm anyone if the president can simply fire them and put in whoever he wants?
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@Clayton Marlow
Bingo!
2
Assuming for the the moment that the apparent blizzard of precedent protecting Trump's action from direct constitutional violation proves unassailable, the crucial paragraph in this story is:
"The Vacancies Reform Act applies to the executive branch in general, raising the question the question of whether it is displaced by the more specific statute that addresses an order of succession for attorney general, or whether a president can choose to use either law. Mr. Engel argued that the better interpretation was that the president can pick either option."
In their NYT article, I believe Neal Katyal and George S. Conway argued that the Vacancies Reform Act (VRA), the legislation Trump relied on in appointed Whitaker, unambiguously asserted that statutes proscribing succession have priority over the VRA. Ergo, Whitaker's appointment is illegal.
This is going to SCOTUS; the conservatives are originalists.
I'm betting that Katyal/Conway are asserting the tight reading, and Engel is a asserting a more loose goosey reading.
With this assumption, the SCOTUS decision here may reveal whether the conservatives are principled originalists or Republican water carriers.
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@Dennis Galon Silly question. "Republican water carriers" is the answer. That's why they fought to seat Kavanaugh.
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@Dennis Galon
"... This is going to SCOTUS; the conservatives are originalists. …"
Conservatives CLAIM to be originalists, but the evidence shows otherwise. Two instances:
1) Conservatives edited the "well regulated militia" clause out of the 2nd amendment.
2) Conservatives redefined human personhood to include artificial legal construct known as corporations, and redefined human speech to include briefcases full of cash by said artificial legal construct corporations.
It is starting to look as if conservatives are about to redefine the president to be a banana republic dictator.
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@Dennis Galon
As far as I can tell "originalist" means they want to be a colony under the king again. At best it means, the mythical Constitution before any amendments, even though the Bill of Rights was ratified with the Constitution.
In practice Republican originalists put words in the mouths of the Founders, ignoring the obvious letter and spirit of our founding documents, to claim the Constitution does whatever they want it to.
By supporting Trump, 90% of the Republican Party has proven they don't care about, truth, logic, or science, and are against the rule of law, unless it favors them at the expense of others.
The Constitution calls for Justice and Tranquility, but they keep trying to replace them with unjust laws enforced by a militarized police state, that is anything but tranquil.
3
Regardless of the legality. There is one reason and one reason only that Trump put Whitaker in. To attack the Mueller investigation.
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And who is the head of the justice department right now?
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I am shocked, shocked, that the DOJ under Mr Whitaker would defend the appointment of Mr Whitaker.
12