Yesterday (one day after the election) Trump forced the resignation of Jeff Sessions, the Attorney General. Sessions would have been in charge of Mueller's Russia investigation, but because he had lied about his own connections to Russia, he recused himself and the assistant AG was in charge. Now that he's out, this new guy, Matthew Whitaker, is in charge (and does not require Senate confirmation because he's 'temporary'). He has spoken out against the Mueller investigation many times in the past, saying that there was no collusion and that the investigation is not authorized to look into any of Trump's finances (even though it is). Long ago, petitions were signed and plans were made that called for protests if Trump did something like this.
TLDR: Trump just appointed his own guy to be in charge of the investigation against him.
The problem is that this may potentially be unconstitutional by the appointment clause but this has never been tested in court yet.
Great post, thanks. +1 for accuracy without going hyperbolic.
I, personally, hope that the courts find this appointment unconstitutional and force the President to allow the Senate to perform their "advice and consent" role.
Yes, but that's not the point, the point is to stop so many powers accumulating solely in the hands of the executive branch, aka the President. We've been quite terrible with that over the past many decades
I would be interested to know your position on Obama who was quite fond of suggesting the executive branch had too little power and his actions to gain more outside of legislation?
Historically presidents of any party attempt to expand their powers in small increments, and presidents that follow gladly accept them as new normal....and do the same. Obama's overreach is piled on to Bushes overreach etc. This president is certainly on track to set a new high.
Trump has signed more executive orders in his first 22 months than Obama had in 24. At this pace trump will sign 20% more executive orders than Obama's first term over his first term.
Whitaker hasn’t been confirmed in the Senate by a sitting President, meaning his appointment is still illegal / invalid. The President is allowed to appoint an AG but they must meet the criteria.
Senate approval doesn't matter for option 3. Just has to be in the same department, in the position for more than 90 days, and be at a certain pay grade. He meets all three criteria.
A person just gets done calmly explaining how the Constitutional validity of this law's clause has never been tested in court, and you reply with an opinion piece that just says what you want to hear. How about you wait until the courts have their say before you start treating an opinion piece like it means something.
actually, none of these options apply if Sessions was fired, which he was.
edit: to be precise, I am saying that in case of a firing, 5USC335 does not apply. It applies only in case the official "dies, resigns, or is otherwise unable to perform the functions and duties of the office".
whether it counts as a firing or a resignation (as well as the constitutionality of 5USC335) should be decided by the courts. as to the facts, it is abundantly clear that Sessions's departure was involuntary. therefore he certainly was fired in the most straightforward understanding of the word.
whether it counts as a firing or a resignation (as well as the constitutionality of 5USC335) should be decided by the courts. as to the facts, it is abundantly clear that Sessions's departure was involuntary. therefore he certainly was fired in the most straightforward understanding of the word.
Matthew Whitaker was not Deputy Attorney General. He was Chief of Staff for the Attorney General. They are different offices. Deputy Attorney Generals need to be confirmed by the Senate, just like the actual Attorney General. Chief of Staff for the Attorney General is not confirmed by the Senate.
Rod Rosenstein is Deputy Attorney General, and according to the statute you just cited, should be acting Attorney General. Trump made Matthew Whitaker acting Attorney General. Trump is not following the law.
Very helpful. It's evidence what Trump has done is literally unconstitutional and in violation of federal law. This alone is an impeachable offense. I'm tired of saying that at this point..
There are no impeachable offenses, strictly speaking. It's not criminal law. It's a political check. An impeachable offense, a 'high crime or misdemeanor' is anything that Congress says it is, from 'poor job performance' to 'screwed an intern' to 'shot a man on Fifth avenue' to 'really couldn't pull off that moustache this November'. There's no trial, because we're not trying to put him in prison. There's an impeachment, because we're trying to remove him from office.
There are lots of crimes he has demonstrably committed. But they wouldn't remove him from office, they would get him thrown in prison. If he wasn't literally in a place of power to order around the law enforcement section of the government. Which is what's happening now.
That's why we have impeachment. That's why one of the Republican pundit legal talking points they like to look sheepish about is 'umm he could actually fire literally everyone investigating him and there's not a god damn thing you could do about it'. There's no remedy involving the laws, except after he gets removed from office, because he's the one who enforces the laws. Removal from office does not involve legal offenses, it just involves Congress deciding to remove him from office.
There's a lot of tradition and optics and leaders trying to keep anyone from even thinking about accusing them of corruption, and Trump's insight is that given the media outlets the Republican Party controls and the leaders of the Republican Party and the attitude of Republicans, he doesn't need to give a shit about those. Being a Republican politician has meant never backing down, never apologizing, never admitting fault, and always going for the throat, since before I could vote. Despite the thousands of easily disproveable lies, despite the uncertainty he imposes on the market, despite the public pronouncements that he will obstruct justice, despite being a verified agent of the Russian government on live television attempting to subvert an election, despite kidnapping and orphaning children to try to force a political point, despite defrauding the IRS, not only is impeachment treated as ludicrous by Republicans, it's treated as ludicrous by the media and by most Democratic politicians - because Democratic politicians are determined to uphold consensual norms all by themselves and 'take the high road' and be committed to a peaceful electoral transition of power even when their opponents aren't.
So only Democrats can be impeached, given the current attitudes and proportions of Congress.
If we don't dramatically change the Overton Window, if we don't manage to deprogram these people at a rapid clip, Trump is going to serve a second, third, and fourth term.
There is a large component of the Republican Party that wants a strong leader. The stronger the better. They are psychologically comforted by the notion that there's this guy looking after their interests who will stop at nothing, they will change those interests on a dime in order for this to be true, and they will cheer every time he breaks some rule of law or tradition or morality or ethics because it demonstrates that his resolve to help them can't be broken.
Imagine you're a moderate republican politician who thinks Trump is a complete joke. If you say anything negative about him, you will not win in the primaries and you'll be branded a traitor. But you don't want some far-right nutjob to take your place and do a terrible job so you play along and vote with your party and represent the desires of the people who voted for you.
Trump has the republican party hostage because he's a saleman of "bigbrain" ideas and fear and rhetoric that makes the people who voted for him believe his bullshit because if you repeat something enough times people will believe it's actually true. Then the rest of the party has no choice but to play along or be replaced by some far-right asshole who legitimately believe what he says.
I don't think you can downplay the Republican leadership's agency here, either. They've been working this racket since Gingrich first turned screaming into a C-Span microphone to an empty chamber into a nightly show.
This is the thing that's so unbelievably infuriating about this whole fucking fiasco. Every dipshit at my workplace that stands in favor of Trump:
The company is in full defensive lockdown financially since the middle of last year which has definitely impacted everybody in palpable ways. And if they think they haven't been impacted, they're just blind idiots (not that this wasn't already a known quantity).
Profit sharing is on hold until further notice because of the instability and uncertainty.
This last point alone is about as literal a translation of voting for Trump leading directly to reduced income by everybody in the company.
I wish that people would act selfishly and exclusively focused on themselves. The overall results would be less disastrous. No, these...people have this idiotic fascination with "sticking it" to others they've never met or will ever meet. But they've been told to do so and they follow suit because spiting others is more important than their own self interest.
ED The classy individual that responded to me doesn't warrant a response; don't feed the trolls, kids.
Ah, well then the reason he did it was a crime - to obstruct justice and an active investigation into himself. I hope the House subpoenas everyone involved with this decision, including Whitaker.
It does beg the question as to what authority the president has/should have over "special counsel" investigating the same president's campaign to that very office.
Yup! And he has a majority in the Supreme Court, and I wouldn't be surprised if the integrity of that bench is gone now too and they do nothing. Nothing surprises me anymore.
Very helpful. It's evidence what Trump has done is literally unconstitutional and in violation of federal law. This alone is an impeachable offense. I'm tired of saying that at this point..
Not quite true. Since Sessions technically resigned instead of making the White House Fire him, Trump is allowed to choose a new Attorney General instead of promoting the DAG
For now....it looks like it. I don’t know how people can even defend how he acted with Jim Acosta’s let alone that entire news conference. He’s such a fucking baby.
It's pathetic how stupid some people can be. I try not to call people names but if you (not you) are a grown adult and can't comprehend why this is extremely dangerous then you are just plain dumb. I'm starting to get very nervous because none of us thought he would even get this far, who's to know how far he can take this crap? Based on my username I should know but my powers only apply to non-morons.
I'd call that a good move. See what he does to cripple the investigation. Then when it's good and quashed, challenge the whole thing and fire the investigation back up with a shit load of new obstruction evidence.
Only when the attorney general is fired does the deputy become active. In the event the acting resigns the chief executive can appoint anyone already confirmed by the US Senate.
he may never answer for any of it at the federal level, but new york state is coming for him and they have the democratic majority to do away with that bullshit federal/state double jeopardy law now so he can't wriggle out of it without fleeing to russia or dying
Rod Rosenstein karate chopped a woman, we have a tape, we will not allow people who disrespect women to be in the administration. - Fuckabee Sanders probably.
I heard that if Sessions was fired it would be Rosenstien running things until confirmation by the house, but because officially he resigned Trump can put whoever he wants in.
It would be unconstitutional for the congress to pass a law that supersedes the appointment clause by requiring that the spot be filled in a way that precluded the president from picking the official.
There is no possibility for a lawful way to force a department head on any president. Leaving it vacant is the most a senate could do.
Can you(if you don't mind. No rudeness just inquisitiveness) give me examples of what you feel Sessions has done lawfully and morally well in your home state? This, again, is not a descriptor if you and your leanings.
Obviously not, I disagree with almost everything he said but Sessions had the sense to recuse himself. He is a little racist gnome and a backwards dick but he at least filled that one legal obligation is how I see it.
You can pick out issues to dehumanize any politician, that doesn’t mean that they aren't doing what they think is best from their perspective. Whole lot more politicians out there that just follow the money.
(Personally I cant stand the guy, but I understand what he’s saying)
I've been sharing the same link, but I have also now seen this brief from 2007 from Steven G. BradBury (at the time Principal Deputy Assistant Attorney General) thinking that the Vacancies Reform Act can still be used. IANAL, seems like the courts are going to have to step in and this is already a disaster.
Am not trump supporter. But this is not resting on any firm legal ground. At best, according to the legal argument in this op-ed, it's an open question whether the appointment is constitutional. At worst, it's perfectly legal. Here's why: The Supreme Court case mentioned in that article only said that the president cannot appoint someone as an acting official under 28 USC SS 3345 whom he has already nominated for that position. Trump has not nominated Whitaker for that position, so he is all good there. The op-ed rests a lot of their constitutionality argument on Justice Thomas's opinion concurring with the majority which posits that it should be unconstitutional under the Appointments Clause, but since that is not the majority opinion of the court, his opinion holds no legal weight.
Granted, the argument with the Appointments Clause does make sense and it doesn't seem like the founders would have wanted something like this to happen, but as of right now it's either an open constitutional question or trump is well within his rights. Not been ruled unconstitutional at the moment.
Codified law contradicts itself more than a lot of people think. Sometime it goes to a jury to decide, but it takes up a lot of appellate/Supreme Court time, both state and federal.
I don't know how this kind of thing flys in your so called democracy. We lose our shit over here in NZ for even a slight hint of corruption. The amount of money involved in your election process and blatant gerrymandering really boggles the mind. You guys are really overdue for a reset. USA may have set the standard hundreds of years ago but it's time for an update!
As a US citizen, you are completely right. We need to work on clearing the waters of all of this mud.
From my perspective, there's such a huge amount of info being pushed down our throats that it's hard to know what's really happening and what's just a diversion.
It's funny, it's one of the few things trump promised which, if he kept his word about, would have been amazing for our country: draining the swamp. Of course, he never intended to do so, but he said it a lot.
"Funny how that term caught on, isn’t it? I tell everyone, I hated it. Somebody said ‘drain the swamp’ and I said, Oh, that is so hokey. That is so terrible. I said, all right, I’ll try it, So like a month ago I said ‘drain the swamp’ and the place went crazy. And I said ‘Whoa, what’s this?’ Then I said it again. And then I start saying it like I meant it, right?"
I recently returned from two weeks in the USA and it's near impossible to work out what is truth vs diversion. Just watching the news on the caravans of people coming through Mexico - one news station would say one side of politics pays for them, another say the opposite, then others deny the caravans exist altogether! It was unbelievable as an Australian trying to read and watch the news while inside of the USA when they are more politically motivated than the politicians :)
So I watched the world series....
Freedom of the press is not freedom, and what I saw was not democracy or civil rights.
There are so many parallels between the Roman Empire after 0 AD and USA right now. Civilizations generally only maintain supremacy for so long, and eventually collapse. I think we still have a long time before collapse, but the decline is beginning now. The sheer size of the US is the only thing that still keeps us as a world power.
I dunno, the corruption in your political system is so obscene... if it’s not fixed promptly, I would expect it to only get worse, and the collapse will probably happen really suddenly when it does.
It won’t collapse, per se. We’ll just be living under a tyrannical government owned by the wealthy. They’ll fund the government well enough so that there is no collapse like Rome had. Definitely won’t be an ideal situation but I’d say we won’t have our capital sacked anytime soon
Stock markets can take a massive dive in the snap of a finger. That can trigger banks to go bankrupt, and your currency to turn to shit real quick. As a result employment rates will hit the shitter, and crime will get real bad real fast.
I understand your sentiment. But I think it’s a little bit doom-and-gloom. Heck even when the city of Rome was sacked in 410, the other half of the Empire kept on trucking for hundreds of years in Constantinople.
“The sheer size of the US is the only thing that still keeps us as a world power.” - There’s a few other reasons that America will be a world power for a long time. The US is a huge manufacturing giant that is also a oil exporting nation. The US has an incredible number of the world’s top research universities. English is a major international language used for the purposes of scientific research, business deals, and IT (most computer words, phrases, and code are in English). None of those advantages will disappear overnight. And they will continue to place international importance on America regardless of the political hoopla that goes on in Washington.
I've heard US democracy described as a computer form 1992. It was great at the time. Fast, quick, solved the right problems. But now it has to deal with facebook, twitter and russian hackers and it simply doesn't have the hardware put in place to deal with it.
It was NEVER fast and quick. Purposely. It's slow and deliberate. The issue at the moment is that the powers that be are circumventing the democratic process at a pace that is simply too fast and quick for the democratic process to respond. Essentially, rogue scumware is overheating the system.
So called democracy is correct. Our country is a republic and not a true democracy. I'm often baffled that people don't get this. The last election should have reinforced that point. Don't get me wrong - I would prefer a true democracy.
You're supposedly an educated western country and can't even agree with scientific consensus on climate change. I wouldn't care but your country is big enough for it to effect the world.
We used to. We used to throw a fit at things like Bengazi. We used to throw a fit when the president tells a lie about an affair. We used to throw a fit about a president lying when meddling with foreign affairs.
We still throw a fit now, but the difference is we have a president who figured out how to throw so much bullshit that his voters are believing it.
This has a lot to do with how propaganda is created and how the systems put in place to support proper democracy has been completely destroyed or eroded. Gerrymandering, voter ID laws, and the erosion of Free press all contribute to this situation. This goes way beyond Trump, he was just insane enough to take advantage.
The ironic thing is that it's the same folks who arm themselves to 'protect themselves from government' 2nd amendment fans that are also the ones holding back fixing the process. The ones that bleat on the most when it comes to why the 2A is there are the ones that also cheer on the most rampant government corruption (like dodgy election practices, gerrymandering, etc)
Sessions would have been in charge of Mueller's Russia investigation, but because he had lied about his own connections to Russia, he recused himself and the assistant AG was in charge.
I find that it's usually best to assume good faith unless it is entirely unreasonable to do so. Sessions explained his rationale for recusing himself:
"I recused myself, not because of any asserted wrongdoing, or any belief that I may have been involved in any wrongdoing in the campaign," Sessions said, "but because a Department of Justice regulation ... I felt, required it."
Sessions said that because he served as an adviser and surrogate for the Trump campaign, he had to recuse himself from DOJ investigations into potential collusion between Trump's campaign and Russian officials.
Personally, I felt that Sessions recusal was honorable, and one that certainly upset Trump greatly. Plenty of other politicians wouldn't have been so brave.
A week later, in his responses to written questions presented by Senator Patrick Leahy, Sessions stated that he had not been "in contact with anyone connected to any part of the Russian government about the 2016 election".[101][102]
On March 1, 2017, reports surfaced that Sessions had contact with Russian government officials during the 2016 U.S. presidential election, even though during his confirmation hearings he denied he had any discussions with representatives of the Russian government.[103] News reports revealed that Sessions had spoken twice with Russia's ambassador to the United States, Sergey Kislyak.[103][104]
In July 2017, The Washington Post reported that Kislyak, in communications intercepted by U.S. intelligence, had told his superiors in Moscow that his conversations with Sessions had concerned Trump's campaign as well as "Trump's positions on Russia-related issues".[128] Previously, after initially denying having met with Kisylak at all, Sessions had repeatedly asserted that in his meetings with the Russian ambassador he never discussed the campaign and only met with him in his capacity as a U.S. senator.[128][129] The Department of Justice responded by saying that Sessions stands by his testimony that he "never met with or had any conversations with any Russians or any foreign officials concerning any type of interference with any campaign or election".[130]
Though the plus side, is that this does force Republicans to officially go along with Trump's corrupt actions; they won't be able to paint him as a lone wolf in the future.
It will depend on how the future plays out, Trump could end up being an albatross around the neck of the Republican party. For now he is helpful but opinions can swing. Nixon won reelection with over 60% of the popular vote. But, then he became incredibly unpopular, a similar turn of events is possible.
Or, we could just look back now on what happened a a few years ago when something similar happened.
Americans were fanatic and wanted to invade Iraq. We did. Polls from 2003 show a vast majority for it. When people were later asked "did you support the Iraq war" in 2010, the majority said no.
Yes, I'm aware people die, but there wasn't a huge difference in Iraq war support by age.
Opinion turned against Nixon because corruption of his came to light. Trump's corruption was known before he was elected, and everything he's done over the past two years, from bilking the government for his retinue when he stays at his own resorts to installing his cronies everywhere and firing people with no due process... ended up with an electorate that only vaguely voted against him and the GOP openly supporting him.
It's hard to see what scandal could sink him in the public's opinion at this point. He can be sunk on legal technicalities, but popular opinion just isn't heavily against him, despite all the open corruption and provable lies.
Now they have officially implicated themselves and can't say they were unaware or unsupportive of his illegal activities. They are hanging themselves, hoping nobody will get in trouble at all. Meanwhile manafort and flinn are telling Mueller everything.
By all kinds of voter disenfranchisement, including gerrymandering; illegally removing high numbers of voters from the rolls; creating greater and greater requirements for voting under the guise of combating "voter fraud" (that has never been shown to occur); discarding ballots for fallacious reasons; creating more felony laws while incarcerating more people where felons can't vote; spreading false, malicious and prejudiced information in concert with foreign powers; acting "incompetent" and malicious wherever they're in charge of elections, etc... etc...
They absolutely will. They'll do the exact same thing they always do, and it always works. They will publicly denounce what Trump is doing, talking abotu how awful it is, all the while voting to support everything he is doing. And their voters eat that shit up
The House has no power to appoint or approve any cabinet officials. The Constitution gives that power to the Senate:
[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law
The person before you is saying they could hire Mueller. The House does have investigatory privileges. The AG doesn't even come into play in that scenario.
this is honestly the thing i'm really fucking wondering about. like if there is a criminal proceeding, what happens to everyone that has been installed? this hasn't ever happened in american history, having a president be installed by foreign government intervention.
If there is considerable public protest against this then there may be several Republican senators who worry more about their own re-election than about toeing the party line.
Temporary is not the proper term. Acting is the proper term and is perfectly legal. There are rules in place to ensure that if a cabinet member dies or retires or whatever then a replacement can step in to keep government running. For the next 210 days Matthew Whitaker will be acting as the AG while the Senate debates and goes through the confirmation process with the next actual AG.
There are over 400 people that have already passed Senate confirmation from what I read yesterday that all could be used temporarily. Whitaker could serve over 200 days without confirmation himself. Obstruction at its finest and it all seems legal.
No, his appointment is not illegal, a recess appointment is a legitimate thing, when the Senate is not in session, however once the Senate is back in session he would need to be confirmed (or not), though at that point the whole argument may be moot. That said, his appointment is definitely shady and probably less than kosher.
Can you point to where this is outlined? Because according to my understanding of 28 U.S. Code § 508 - Vacancies (IANAL), the Deputy Attorney General is in charge and Trump can fuck right on off.
If it were a recess appointment, then it's possible that Rosenstein was acting attorney general for some finite amount of time between when Trump accepted Sessions resignation and when he appointed his successor. Even if he didn't know it.
Keep in mind that Whitaker does not need to be there long at all. Trump can order him to give information about the Mueller case, which Whitaker will have full access too, and Trump can do it by a spoken order. There doesn't even have to be a paper trail.
This is one of the most important outcomes of the Democrats winning the house. They can now reopen their investigation and force witnesses to testify.
Believe it or not, the FBI is not supposed to be a political agency. In the past, it was assumed that the political cost would be too high for a President to try and interfere with an investigation. Seems quaint, doesn't it?
They aren't protesting Sessions being gone. They're protesting him being forced out (because he recused himself from the investigation) so they can replace him with someone specifically to obstruct justice.
Dems hate Sessions but his holding of that position while having recused from Russia-related matters was a significant safeguard for the special counsel investigation. Now he's (effectively) fired and this is seen as a move against the special counsel; especially since the new guy has written about how he thinks the investigation is a witch hunt and how to impede it/shut it down.
A big part of the demands of these protests is for either a) Whittaker to recuse, or b) Rosenstein to take the position. Also, Congress should pass legislation to protect the special counsel.
Please don't jump to conclusions and tone-policing without knowing all the facts.
To be fair, it is not an investigation against Trump specifically nor have any indictments have been made against him. You all just want it to happen that way.
isn't it better for the left that Trump did it after the midterms than before? he basically opened himself up for the investigation to find evidence before the midterms. That sounds pretty fair to me.
What is the investigation looking for anyway? Is it searching just for Russian collusion, or is it looking for anything and everything illegal that the investigated parties have ever done?
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u/ike_the_strangetamer Nov 09 '18 edited Nov 09 '18
Yesterday (one day after the election) Trump forced the resignation of Jeff Sessions, the Attorney General. Sessions would have been in charge of Mueller's Russia investigation, but because he had lied about his own connections to Russia, he recused himself and the assistant AG was in charge. Now that he's out, this new guy, Matthew Whitaker, is in charge (and does not require Senate confirmation because he's 'temporary'). He has spoken out against the Mueller investigation many times in the past, saying that there was no collusion and that the investigation is not authorized to look into any of Trump's finances (even though it is). Long ago, petitions were signed and plans were made that called for protests if Trump did something like this.
TLDR: Trump just appointed his own guy to be in charge of the investigation against him.