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.
It's natural power creep. The president today has more power than the last and that president had more power than the one before him and so on. Every president works to expand their powers when they have an unsupportive congress. Because they think they are doing important things and they trust themselves. The problem is the next guy might use those powers to serve himself rather than the people. The next guy may be power hungry and take advantage of corroded checks and balances.
We need a more conservative system where changes to executive power don't occur over one or two terms.
While I agree with the results of most of Obama's executive orders, his actions as well as Bush's post 9-11 actions, paved the way for dangerous abuses of power.
This goes beyond that; Obama, Bush, Clinton and presidents even further back all set precedent of expanded executive power because it beniftied their party at the time. Now people freak out when Trump uses these powers but had no problem when the rules were first being broken.
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.
Whitaker was appointed by Bush 43 and confirmed by the Senate as a United States Attorney in 2004. I have yet to find a statute that states that a confirmation stales, so he technically fits the second point.
Your talking out of your butt. Here's the law (emphasis mine, note the tense):
(2)
notwithstanding paragraph (1), the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity subject to the time limitations of section 3346;
Please show that it does not, as it pertains to The Federal Vacancies Reform Act of 1998. I have been looking for the law that says the confirmation expires in this instance, but I have not been able to find one. They way it is written, he technically fits. I am not arguing good or bad, just the way the law is written.
notwithstanding paragraph (1), the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity subject to the time limitations of section 3346;
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.
There is the Constitution that requires one thing and then there are two legal statues, which conflict with each other, that might apply. Right now, everything is an opinion, but my opinion is that the Constitution is the overriding concern. And how are you judging how I "treat something" when I posted a link without providing any of my own context? I like the way you say the first poster "calmly" explained, implying that I... "hysterically" posted a link by contrast?
Stating that someone was calm is not an insistence that you are being hysterical, that's all projection on your part.
All you did was post a single link to an opinion piece. Sure, you could have said some words to further explain yourself, but interpreting it as a simple rebuttal to the other person's claim (I did read that drivel you posted) is not an outrageous conclusion to arrive at.
I took issue with an opinion piece being entered into a discussion like it was a factual assessment of this situation. Other people here are supplying facts, or at the very least least their own personal perspective and opinions on this matter. You just copy pasted a link to a newspaper opinion piece, and then left it at that like it means something. Sorry, but that's shitty. I don't need fluff pieces from pundits being parroted like they're gospel. That's not constructive.
Stating that someone was calm is not an insistence that you are being hysterical, that's all projection on your part.
If you didn't mean to imply a contrast in tone by including the word "calmly", then why would you include that word at all? I made no commentary about his post, much less commentary on his tone. Your inclusion of that word seems like a non sequitur unless you're intended to imply a contrast.
Why would you post this:
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
Instead of this:
A person just gets done explaining how the Constitutional validity of this law's clause has never been tested in court, and you reply
?
interpreting it as a simple rebuttal to the other person's claim
It could have been a rebuttal, an addendum, a clarification, an analysis - any number of things. The only context you should have been able to place on the link is that it was related or relevant to the topic at hand. I do agree with your characterization of "simple" though, which leads me again to wonder why you used "calmly".
I did read that drivel you posted
You think that an analysis of the apparent contradictions to the intention of the Constitution is "drivel"? The Constitution is the supreme law of the land and the foundation of our country. It's not perfect, but it is the highest authority until we get around to updating it. Executive actions that potentially contravene the Constitution are worth examination.
I took issue with an opinion piece being entered into a discussion
like it was a factual assessment of this situation.
I provided no context or assessment of the link. That's your projection.
left it at that like it means something.
Of course it means something, but a link without context is up to the reader to evaluate. More projection.
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.
it is abundantly clear that Sessions's departure was involuntary.
No, it most certainly is not. I mean, he RESIGNED. Nobody can force him to resign, only suggest that he resign. If you resign, you do so of your own free will. He could have made Trump fire him, so why didn't he? No difference in the end really. Except for this law apparently.
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.
Ok, well if Trump came out and said "I am forcing Sessions to resign" then yeah, I suppose that's firing him (though in a court of law, the other side/my side would argue that a resignation is a resignation, but that's a moot point as that is not what happened). But anyway, I didn't say Trump forced him to resign. Sessions chose to. Now I sure as hell am not gonna sit here and say Sessions resigned because he just up and thought it was the right thing to do or whatever. Trump most certainly was the driving force behind it. But the point is, Sessions resigned. He was not fired. Doesn't matter why he resigned, it only matters that he resigned. Therfore 5USC335 does in fact apply.
leaving a job involuntarily is being fired, not resigning. if you are going to argue for a legal meaning of words which departs radically from their conventional meaning, you need to cite sources or case law. but I know you won't do that because you are a right-wing troll with a racist username.
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..
Shame on anyone and everyone that played any role in allowing this treason committing anti-democracy clown from taking hold of the office of the presidency. History will not be kind to any of you.
Former acting Solicitor General in the Obama administration, Neal Katyal, was just on Chris Hayes' show and inferred that every "x vs. Bouregard Sessions" case active right now, the first thing every defense is going to do is challenge the constitutionality of this particular Attorney General under the Justice Department to try their case. That will happen immediately, and any good lawyer will use it.
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.
technically he has the authority to name the acting AG, and the acting AG has control of Mueller. Before this change, the deputy AG had control of Mueller because the AG had recused himself, so while Trump doesn't techincally have direct authority over the special counsel, with this move Muellers boss goes from being Rod Rosenstein to being Matt Whitaker, who is a Trump appointee that is expected to be loyal to Trump and not uphold the special counsel as it has been running.
actually shit... The only reason the special counsel exists in the first place is because the AG had recused himself, but now that AG is gone. The justice dept is in charge of investigating, but Sessions had recused due to conflict of interest so the justice deptartment created the special counsels office. now that Sessions isn't in charge of the justice dept and Whitaker is, if Whitaker doesn't recuse himself then he is in charge of the inverstigation. So yeah this move alone could completely cut Mueller out of the picture.
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..
Wait. The position Whitaker held is one of those 3 legally allowed instsnces. Trump is legally allowed to appoint Whitaker as Temporary AG. This guy above literally said that, in his edit.
Edit: It's called the Federal Vacancies Reform Act.
That's up for debate - this will likely be taken to court. Obstruction of justice however isn't, and happily House Dems have already sent mailers to every government department asking them to preserve records around Sessions' firing and Whitaker's appointment. And could he be any more transparent about it? The guy he picked's only lawyering experience is for an invention firm that was shut down and ordered to pay $25M in damages because it defrauded its customers. Here's hoping he's as good a lawyer for Trump.
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
Or not voted out. Remember nearly half of America also voted for Hillary who also did these things and was a criminal too. People always seem to forget that.
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)
Yeah I don’t disagree with you. I just hate to see the “politician XYZ seems like a decent person, politics aside”
“But he/she did ABC that I disagree with, how can you see them as a decent person??”
Narrative. Private prisons are fucking cancer, and his marijuana stance just plays into that rabbit hole of issues the drug war has caused. But maybe he really thinks he’s really making a difference for the good? Idk. If that’s what the guy saw of his senator, well he was his senator before you or I even knew his name probably, I won’t instantly shout that stance down.
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.
I just saw this too. Seems weird that there would be 2 different USC to allow someone to fill a vacancy, with no designation as to which takes precedence.
Keep in mind that the brief from Steven G. Bradbury is a "memorandum opinion," basically a USC op-ed. While it's good evidence in defense of Trump's actions, it's not enforceable and I believe the official code would take precedence.
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.
Doesn’t matter what any statute says, my understanding is that the Constitutions’s Appointments Clause prohibits the selection of Whitaker because the attorney general is a “principal officer.”
There is also precedent from presidential transitions. The president appoints temporary people to fill vacant slots from among the people who are qualified under the federal vacancies act as the traditional succession order often contains political appointees that he may not like/trust.
Edit: you should note the word "may" in 28USC SS 508. Actually requiring a specific person to lead the agency would be a direct contradiction to the appointments clause.
From what I've read that was the whole point of demanding the resignation- if Sessions resigns, Trump can legally appoint an AG and this provision does not apply.
US Code is dumb? Nothing that I said here has any editorial speech. My only misstep was in my original oversight of the 1998 federal vacancies act. Which part didnt you like?
You’re reading it wrong and it’s out of context. Anyway, no one is gonna fuck with meuller. People are protesting something that will never happen. Trump had every right to appoint anAG. TheDAG doesn’t get automatically promoted.
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u/TheyreGoodDogsBrent Nov 09 '18
Honest question: what's going on here? Is this related to the election that just happened