The Constitutional Crisis Is Upon Us

A couple of lawyers have written an op ed for the New York Times saying that the appointment of Matthew Whitaker as acting Attorney General is unconstitutional. The primary issue is that Whitaker has never been confirmed by the Senate to do anything, and apparently this makes him ineligible to be AG, even temporarily.

See also Marty Lederman at Just Security:

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

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

John Bies writing at Lawfare calls this an unresolved constitutional question.

The Appointments Clause of the Constitution provides that the president can nominate, and “by and with the Advice and Consent of the Senate,” appoint officers of the United States, and further allows that “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.” Consequently, while the clause permits Congress to authorize the appointment of “inferior officers” by the president alone or by the head of a department, it requires that any “principal officer” be appointed by and with the advice and consent of the Senate.

The attorney general—a Cabinet-level official who is the head of a major executive department and reports only to the president—is plainly a principal officer. The chief of staff to the attorney general, on the other hand, is an inferior officer appointed by the head of a department, and not subject to the Senate’s advice and consent, so Whitaker has not been confirmed to his current position by and with the advice and consent of the Senate. While the FVRA allows the president to appoint another Senate-confirmed official to fill a vacancy, here the president has elected to rely on another FVRA provision that allows him to appoint a senior Department of Justice official who was not Senate-confirmed.

There remains an open question of whether it is constitutional to rely on of the FVRA to appoint an official not serving in a Senate-confirmed position to act as a principal officer, such as the attorney general. Some—including Justice Clarence Thomas—have argued that an acting principal officer must be appointed in conformance with the Appointments Clause, i.e., by and with the advice and consent of the Senate: “Appointing principal officers under the FVRA . . . raises grave constitutional concerns because the Appointments Clause forbids the President to appoint principal officers without the advice and consent of the Senate.”

Of course, how the current SCOTUS would rule on that is anybody’s guess. The Notorious RGB is in the hospital with rib fractures, btw. I propose we keep her in bubble wrap for a while.

It’s plain as day that Whitaker was chosen to shut down the Mueller investigation. He’s expressed hostility to it and says he won’t recuse himself from it. There appears to be a difference of opinion among legal experts whether Whitaker would be guilty of obstructing justice if he shut down the investigation.

Elura Nanos writes for Law & Crime,

Let’s face it. Mueller has known from the start that Trump might fire (or order someone else to fire) him.  There’s no way Mueller would be blindsided. Mueller, a veteran prosecutor, has always been a step ahead of Trump; when the state prosecutions ramp up, Trump will have no power to either inhibit them or to shield himself from the consequences. As we’ve discussed before, the Attorneys General of New York and California have already made significant headway in filling in any prosecutorial gaps left by a Mueller firing.

In other news, yesterday CNN’s Jim Acosta was banned from the White House for doing his job, and today Sarah “Mouth of Sauron” Sanders released a doctored video that purported to show Acosta being aggressive with a woman intern who was attempting to take a microphone away from him while he was asking questions of The Creature. No shame. Various people are calling for the White House Press Corp to boycott White House briefings, which are all a pack of lies anyway.

People are so upset about the Attorney General situation that a mass shooting in California barely made headlines. The shooter is a former marine, and this may be one of those rare times in which the perp really did have mental health proplems.  The weapon used was a .45-caliber handgun with an “extended magazine,” which I’m taking to mean it was a semiauto.

19 thoughts on “The Constitutional Crisis Is Upon Us

  1. I’m running into die hard progressives (or those faking that they’re such) who think that “Russia!” is some kind of Dem establishment trick trying to shift the focus away from the real reason Hillary lost.  Yet I don’t know of a single damned thing Trump has done that could be considered any more progressive than what she might’ve done.  If he’s trying to drain the elite establishment swamp, trying to shift things towards his own personal benefit is a strange way to do it.  I don’t think POTUS was meant to be an imperial position regardless of the condition of the nation or populist moods.

    I need more to say to these anti-Mueller investigation "progressives".


  2. In point of fact, I'm not sure if there are any magazine fed pistols that aren't semi-auto. In this case, yes, it was definitely semi-auto – the .45 ACP was a standard military sidearm for a long time (I believe the initial designation was the "M1911" when 1911 is exactly what you'd guess, the year.)

  3. Bill, technically, we know there is a crime that was committed by the Trump team. Despite what Trumpies claim, "taking the meeting" with people claiming to have Russian support  is making a plan to break the law, and taking one (very!) overt action toward doing so – that's what it takes to make it "conspiracy to…".

    I doubt that's all, though. JK wanted a backdoor to Russia without US oversight. Only the dumbest of dolts would do that *without* ugly intent. I don't have any respect for JK's brainpower, but he's not the *dumbest* of dolts.

  4. Bill: "”die hard progressives who think that “Russia!” is some kind of Dem establishment trick trying to shift the focus away from the real reason Hillary lost"

    What a load of crap that is. Hillary lost yeah she ran a crappy campaign, get over it, sometimes I can't decide who is more annoying, people who can't stop attacking the "democratic establishment" or the rabid MAGATS? We have a wrecking ball in the white house the relevance of the lefty purity pony is absolute zero.

  5. Their excuse is that since we’ve done it to other nations, including Russia, they get to do it to us.  It’s most prevalent amongst non-Americans of the hate-the-US imperialism kind, which has ironically, been more of a Republican behavior. (Iran1953, Guatamala1954, Reagan, Bush…) Compared to them Clinton family "imperialism" has been small potatoes.

    I'm suspecting these commenters are fake.


  6. Anonymous… Oh, no. Jarred is a "hidden genius". And a very, very well hidden genius according to all appearances. I'm just wondering whether he hides it intentionally or mother nature hide it?

  7. THIS IS IT!!!

    The poo-poo is hitting the oscillating blades!

    To the memory foam mattresses!

  8. Paul Joseph Watson, the editor of the clip, is a fascist and Alex Jones worshipper. He posts dozens of edited videos that deceptively make liberals appear to be violent/hypocritical/stupid. He seems to believe he's really good at what he does, but even someone with a limited understanding of digital media can see his sloppy work, or with the capability of research can see the full story that he usually edits out.

  9. All kidding aside.

    We are at a tipping point.  A seriously dangerous one.  An existential one.

    The Cold Civil War may be about to become hot (more tomorrow on this, maybe.  I'm kinda tired).

    Before talking about impeachment, realize that the current House isn't likely to even consider talking out loud in public about it, let alone acting on tRUMP's high crimes & misdemeanors.

    We have to wait 2 months until D's have subpeona power.  

    What if in the meantime Mueller issues a subpoena for tRUMP?  Or, against all odds, even this current House issues one for him?

    What if tRUMP laughs and wipes his fat, pitted, orange cottage cheese ass with it?  He's tired of using copies of the Constitution (the original is gone because it couldn't be cleaned after W got done wiping with it) – it's a short document, AND HAVE YOU EVER NOTICED THE SIZE OF HIS ASS?  It takes more than one copy!  tRUMP's ass  is bored!  It needs new reading material (his ass is better read than the rest of him), so, 'Thanks, Bob!'

    And then, when the Sargeant at Arm, or whoever, goes to take the POTUS to… 

    First, where?  (Yeah, I know about the holding area).

    Second, how?  He can order the military to intervene. 

    That, ladies and gentlemen, is no longer a constitutional crisis.  It's a…

    I hope in the next 2 months, like with Nixon and Al Haig, there's a respected military leader (Mattis?) put/kept to act as an intermediary between the POTUS and said military – to make sure he doesn't nuke the world, or some poor "sh*t-hole country.  Or decide he wants to invade Belgium.

    In '74, there were real worries that Nixon would try to use our military to pull a coup – hence, Haig, then WH CoS, was asked to keep (more than an) eye on Tricky Dick.

    Yup.  Constitutional crisis indeed!


    What now?

  10. The constitutional crisis cannot occur until someone with authority makes it happen.  That means that, while this is prima facie unconstitutional, no one in the House or the Senate is going to do anything about it.  By the time the Dems take over in January, the damage will be done.

    My biggest fear is they will start shredding documents.  Remember Fawn Hill?

  11. If Whitaker's appointment is unconstitutional. then he has no legitimate power, so why should anybody follow his orders? Anyone who does is also acting unconstitutionally.

  12. Whether or not the appointment stands depends on the legal challenge that makes it to the USSC. I'm really not sure what would happen if everyone in the DOJ just ignored Whitaker. I saw that done one time in the Navy – the petty officer was ignored by about thirty of us marching in formation and we marched back to the barracks when he wanted to drill us as punishment. He didn't know what to do when everyone defied him. 

    On a more practical note, is there a provision short of the USSC to "stay" (stop) his appointment until judicial review is complete? Haven't heard any commentary on that – it may be such a bad idea even the media won't discuss it.

    There's no way for a sane person to review this person and conclude the appointment was for anything other than "corrupt intent". That's the only element in question since Comey was fired and obstruction first surfaced. Anything Whitaker does to impede the investigation further proves corrupt intent (and makes Whitaker subject to indictment for obstruction.) Does anyone think Whitaker won't sing like a bird about any instructions he received from the West Wing if he's looking at several years in prison?

    Trump can pardon Whitaker but that takes Trump further into obstruction. From a legal point of view, it's like Trump is borrowing from one credit card to pay on another. He keeps committing obstruction to try to prevent being charged for obstruction. The interest   forces Trump to get more credit cards to stay ahead of default. There's only one possible ending to the scenario. Unless Trump succeeds in becoming dictator, he's going to be proven guilty of high crimes. Will the case go to court or only be reviewed in the court of public opinion?

  13. Bill – having run for office as a Green, I'm a "certifiable" progressive.  I want the Mueller Probe to continue – (imagine proctology joke here) – but I'm skeptical about what they will report, for two reasons:

    1. MSM has painted Mueller, Comey, and the FBI as pillars of American Democracy, when all have bad history of siding with GOP against Progressive causes and people.  Mueller might not report every treasonous thing he finds, and the Commission may have studiously avoided looking for things they don't want to find (ie. larger issues of GOP corruption).

    2. Collusion between Trump campaign and agents of the Russian government may have been sparse, abortive, or non-existent. 


    I strongly believe that Trump's history of shady business includes prosecutable transactions with Russian ScumbOligarchs (among others), and I hope that Mueller exposes those. 

    I believe that agents of the Russian government have carried out Information Operations to undermine Americans' trust in our government, and that some these operations have succeeded.  Our government has done – and continues to do – similar things.  This is regrettable but not stoppable (sans effective Planetary government).  The best antidote is to have a good government, and the GOP has foreclosed that option in this country, perhaps permanently. 

    I'm exasperated by professional Democrats singular focus on Russian "hacking", while they've allowed the GOP to fix elections for decades.  Gerrymandering and (brown) Voter Purges are just the tip of the iceberg.  Manipulation of results via non-auditable electronic voting machines – unique to Red States – is the Big One, and it has been consistently ignored by professional Democrats and the MSM. 

    The focus on Russian interference is an overblown, dangerous, hypocritical, obfuscatory, escapist distraction from our big problem: our Republic has collapsed into Empire


    BTW, I vowed years ago that I would never vote for anybody who voted for the invasion of Iraq, but in 2016, I did.

  14. hey, what happened to my avatar?  Now I look like a pink Grinch; I liked my Pissed-Off Pentagon better…

    (partly just sending this comment to see which picture I get)

  15. Whitaker most likely will defund the investigation. Short of that, he may take the report and not release it. Either way, next year when the Dems take charge, they can subpoena Mueller and ask him what he found. 

  16. Chris, 

    From what I learned, Mueller and his investigation are already funded – thru 9/19.

    Not to say that there's no creative end around.

    But this Whitaker is considered a "fucking fool" by others in the DoJ, so he's unlikely to come up ith one.

  17. I wonder if Whitaker will try to sell Clarence Thomas one of his masculine toilets®? Maybe even an XL model? Come to think of it..If Pruitt can get his own private phone booth paid for by the taxpayers, then why can't Thomas get a much needed custom made toilet at taxpayer expense.

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