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Trumpís Brazen Move to Stop Muellerís Russia Investigation

Jeff Sessions is out as Attorney General. At the request of John Kelly, he submitted this resignation letter. The most interesting sentence is the first, which states, "At your request, I am submitting my resignation." How is that different than being fired? In any event, there's no reason to feel badly about Sessions' exit. Goodbye and good riddance to him.

But what about Trump's appointment of Sessions' Chief of Staff, Matthew Whitaker, to temporarily take Sessions' place as Acting Attorney General, a move intended to transfer oversight of Special Counsel Robert Mueller and the Russia investigation from Rod Rosenstein to Whitaker? Is Whitaker's appointment legal? [More…]

One issue is whether Trump may name a replacement for Sessions using the Vacancies Reform Act instead of the more specific DOJ succession statute? It may be an open question, according to this 2017 article by John Blies at Lawfare. Blies updated his article at LawFare today and continues to say it's an open question.

Last night, former Acting Solicitor General of the U.S. and law professor Neal Kaytal pointed to this concurring opinion of Clarence Thomas three years ago (at p. 25) to argue Whittaker's appointment is unconstitutional.

Neal Kaytal and George Conway (the husband of Trump's adviser with the same last name) explain further today in an op-ed in the New York Times. Based on Clarence Thomas' concurring opinion, they argue that Trump's appointment of Whittaker is unconstitutional because it violates the Constitution’s Appointments Clause.

Marty Lederman has this Quick Primer. And prominent ethics professor Stephen Gillers explains why Whittaker should recuse himself.

This all seems like a very academic exercise to me, since Whittaker is already on the job. It would take months for any legal challenge to Whittaker's appointment to make its way through the courts, during which time Whittaker could wreak havoc with Mueller's investigation.

The main question I have is: What was so urgent that the Sessions "resignation" had to be yesterday.

My theory is, as it has been for weeks, that Trump is obsessed with trying to prevent Mueller from indicting his son, Don, Jr. for false statements, perjury or obstruction in the Russia probe, and in particular, for claiming he didn't tell his father in advance about the June, 2016 meeting with the Russian lawyer in hopes of getting dirt on Hillary. According to Roger Stone, he may also have issues with his communications with Wikileaks. (Even Don,Jr. reportedly fears indictment by Mueller.)

As Acting AG, Politico reports that Whitaker can put the brakes on Mueller by firing him, restricting his funding, or refusing to approve subpoenas and indictments. Here is the DOJ regulation on oversight of a special prosecutor. (You can read all the regulations beginning here, they are very short. When done with one, just click on through to the next).

I wonder what Whitaker do if Mueller was a step ahead and already obtained an Indictment against Trump Jr. and filed it with the Court under seal? He can move to dismiss the sealed Indictment, but would he dare? What is there to stop him? That he would have to tell Congress? 28 CFR 600.7 (b) states:

(b) The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department. However, the Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued. In conducting that review, the Attorney General will give great weight to the views of the Special Counsel. If the Attorney General concludes that a proposed action by a Special Counsel should not be pursued, the Attorney General shall notify Congress as specified in § 600.9(a)(3). (my emphasis)

Considering how Whitaker stepped on his boss (Sessions) to get his job, which is not a very loyal act, and Whitaker's repeated punditry criticizing the Mueller investigation while parroting the positions of Donald Trump and Don Jr. all over cable TV, I suspect the answer is yes, Whitaker would do that. I think he could care less what Congress has to say about it.

Trump and Whitaker, the former U.S. Attorney who plays a legal pundit on TV and caught Trump's fancy when Trump watched him, seem made for each other. I would cast Whitaker as Mr. Jones in the Counting Crows' video (at 3 min 57 sec]

Mr Jones and me
Starin' at the video
When I look at the television, I wanna see me
Staring right back at me
We all wanna be big stars
But we don't know why, and we don't know how
.....Mr. Jones and me, we're gonna be big stars

As to whether Don, Jr. has been indicted, I couldn't resist going through PACER last night for the District of Columbia to see how many sealed cases have been filed in the past several weeks. Here's the list (and approximate date they were filed, based on case numbers of unsealed cases filed before and after the sealed cases.)

  • 18-cr-312, SEALED v. SEALED;(10/16)
  • 18-cr-316 SEALED v. SEALED; (10/16 to 10/22)
  • 18-cr-317 SEALED v. SEALED; (10/22)
  • 18-cr-321 SEALED v. SEALED; (10/24)
  • 18-cr-326 SEALED v. SEALED; (10/30-31)
  • 18-cr-327 SEALED v. SEALED; (10/30-31)

Keep in mind every grand jury indictment is filed under seal until at least one defendant in the case makes a first appearance, so the fact that a case is sealed does not mean it's related to Mueller's investigation. It could be a run of the mill drug, gun or fraud crime. Then again, any one of them could be a Mueller indictment.

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  • Display: Sort:
    Ben Wittes (5.00 / 1) (#20)
    by CaptHowdy on Fri Nov 09, 2018 at 02:16:59 PM EST
    Whitaker is yet another... (none / 0) (#1)
    by MileHi Hawkeye on Thu Nov 08, 2018 at 08:53:05 PM EST
    black eye for the State of Iowa. My birth state has fallen so far in the years I've been away.

    Whitaker might have suffered brain damage from playing football at Iowa but I still hope he ends up out on his a$$.

    From a few days ago (none / 0) (#2)
    by CaptHowdy on Thu Nov 08, 2018 at 08:54:57 PM EST
    A former federal prosecutor thinks Mueller's quiet period before the midterms may not have been so quiet after all


    Former federal prosecutor Nelson Cunningham wrote in Politico that although October was an outwardly quiet month in the Russia investigation, the special counsel Robert Mueller may have made his most significant move yet.

    Cunningham wrote that based on a series of under-the-radar developments at two Washington, DC, courts, he believes Mueller may have moved to subpoena President Donald Trump.

    Jeff Cramer, another DOJ veteran, said Cunningham's theory was "consistent" with how he believed Mueller's decision to subpoena the president might play out.



    John Yoo (no liberal) (none / 0) (#3)
    by CaptHowdy on Thu Nov 08, 2018 at 09:22:05 PM EST
    And Clarence Thomas? (none / 0) (#4)
    by CaptHowdy on Thu Nov 08, 2018 at 09:26:05 PM EST
    I put a link to Thomas' (none / 0) (#5)
    by Jeralyn on Thu Nov 08, 2018 at 10:01:15 PM EST
    opinion in the post.

    Parent
    Yeah (none / 0) (#6)
    by CaptHowdy on Thu Nov 08, 2018 at 10:15:06 PM EST
    Sorry

    I saw that after the comment

    Parent

    They were just saying on tv (none / 0) (#7)
    by CaptHowdy on Thu Nov 08, 2018 at 10:18:43 PM EST
    He would have to go back to court to stop any sealed indictments.  To actually reverse them?

    True?

    Parent

    Being a non lawyer (5.00 / 1) (#8)
    by CaptHowdy on Thu Nov 08, 2018 at 10:26:11 PM EST
    And not entirely clear what

     

    He can move to dismiss the sealed Indictment,

    Means.

    going back to court or the GJ seems like a pretty large deal

    Parent

    Once a federal grand jury returns an indictment (5.00 / 3) (#14)
    by Peter G on Fri Nov 09, 2018 at 11:52:50 AM EST
    (even if it is sealed), the indictment can only be dropped (dismissed) by order or express consent of the court, not by unilateral action of the prosecutors (DoJ).  

    Parent
    Thanks (5.00 / 1) (#15)
    by CaptHowdy on Fri Nov 09, 2018 at 12:20:38 PM EST
    Ever know of this being done in your work?

    Parent
    There are many cases where the US Atty (5.00 / 1) (#17)
    by Peter G on Fri Nov 09, 2018 at 12:36:23 PM EST
    for one reason or another seeks voluntarily to dismiss an indictment. But I have never seen a situation where Main Justice (DoJ in Washington, that is) comes in to seek dismissal of an indictment brought by the local US Atty, for example, over the local prosecutors' objection or without their consent. I suppose that would be the analogy.

    Parent
    Rule 48 of the (5.00 / 5) (#16)
    by Jeralyn on Fri Nov 09, 2018 at 12:31:26 PM EST
    Rule 48 (a) of the Federal Rules of Criminal Procedure allow the government to move to dismiss an indictment. They don't really have to give a reason, but the judge has to sign off on it for it to be effective.  Only if the Court thinks the request to dismiss was made in bad faith, would the court consider denying the motion to dismiss.

    Rule 48. Dismissal

    (a) By the Government. The government may, with leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant's consent.

    A couple of cases: here and here.

    While I think a case could be made for "in bad faith" if Whitaker were to move to dismiss a Mueller-returned indictment, I'm not sure who would have standing to object (certainly the person indicted would want it dismissed). The Judge could make a fuss, but in the end, it's really the prosecutor's decision, absent some glaring bad faith.

    Mueller is capable of having thought this all out, knowing that Sessions' days were numbered.

    Parent

    Mitch (none / 0) (#9)
    by CaptHowdy on Fri Nov 09, 2018 at 07:14:59 AM EST
    Senate Majority Leader Mitch McConnell (R-Ky.) said Thursday after attending a classified briefing that he continues to support special counsel Robert Mueller's investigation into Russian meddling in the 2016 presidential election, including possible collusion between the Trump campaign and Moscow.

    McConnell told NPR that Mueller's investigation and a separate probe by the Justice Department's inspector general into the FBI's actions during the 2016 election will ultimately provide answers to a number of questions swirling around the presidential race.

    "The two investigations going on that I think will give us the answers to the questions that you raise -- the [inspector general] investigation in the Justice Department and the Mueller investigation," McConnell told NPR.

    "I support both of them, and I don't really have anything to add to this subject based upon the Gang of Eight briefing that we had today, which was classified."

    the hill

    The White House had initially pushed for Justice Department officials to brief a select group of Republican lawmakers on Thursday, but arranged for a second, broader bipartisan briefing after facing pressure from Democrats and some Republicans.


    Yeah (none / 0) (#29)
    by FlJoe on Sat Nov 10, 2018 at 12:38:06 PM EST
    Mitch, then pass the protect Mueller bill that you have been sitting on.

    How about inviting Whittaker to clarify his position on this? His public statements are diametrically opposed to yours, it's your duty to clear that up.

    Words are cheap, Mitch, there is no other person in the country who could support Mueller through direct actions you can take immediately, there is no other person in the country who could endanger Mueller through inaction.

    I'm putting my money on inaction.

     

    Parent

    I (none / 0) (#32)
    by FlJoe on Wed Nov 14, 2018 at 04:15:40 PM EST
    win
    Flake made the new judicial threat after he and Sen. Chris Coons, a Delaware Democrat, unsuccessfully attempted to force a Senate vote on the special counsel legislation Senate Wednesday. Senate Majority Leader Mitch McConnell objected to the request for a vote from Flake.
     Flake faking a spine is just a bonus track, these people are so predictable.

    Parent
    You win on Mitch (none / 0) (#33)
    by CaptHowdy on Wed Nov 14, 2018 at 06:02:22 PM EST
    Tho I wasn't really arguing the over under, just reporting.

    The Flake thing is interesting only if he get a wingman (or woman) or two.

    Collins, yeah, I know, has said she wants a vote.  

    It would in fact be really easy to grab Mitch by the short hairs.  Just requires the will.

    I kind of think it might be moot.  I think Mueller is going to drop some more bombs any day now that are likely to change everything.

    Flake is running for 2020.  His Kavanaugh highjinx made it look like he was planning to run as a republican.  Which would be a pointless joke.  But if he is going to really threaten judges he is more likely thinking about a third party

    He and Koons maybe.  Like seemed likely back at Kavanaugh.


    Parent

    Flake said in the presser with Coons (none / 0) (#34)
    by CaptHowdy on Wed Nov 14, 2018 at 06:17:19 PM EST
    He could and would stop them out of committee.

    Not entirely sure he can do that tho I think technically he is supposed to have that power.

    Parent

    Flake (none / 0) (#35)
    by FlJoe on Wed Nov 14, 2018 at 09:24:32 PM EST
    is a day late and dollar short, he has mere weeks to obstruct while Mitch has years to ram through judges.

    Flake is betting on a total tRump meltdown and he will spin this as "stout" opposition to tRumpism and claim the smoldering ruins of the Republican party in 2020.

    Like I said these people are so predictable.

    Parent

    Frank Figliuzzi shared a theory last night (none / 0) (#10)
    by CaptHowdy on Fri Nov 09, 2018 at 07:32:56 AM EST
    He said he thinks Mueller, having seen this coming for months, has a slew of sealed indictments.  He said they will be like previous Mueller indictments, storys.  He said he thinks Mueller has decided, knowing there would be attempts the stop or curtail the investigation, to drop the sealed indictments that are designed to tell the story of a corrupted president though cases playing out in court so even they try to bury the report they can't stop the story from coming out through the courts while the House and White House fight over subpoenas.

    He said this will happen soon because firing Sessions has accelerated the process

    Maybe even today.

    Trump is distancing himself (none / 0) (#11)
    by CaptHowdy on Fri Nov 09, 2018 at 09:00:14 AM EST
    From Whitaker.  "I don't really know him but they say he was well thought of"

    He said this on his way out of the country.  Another reason it's thought things might happen today.  He's out of the country.

    Well (none / 0) (#12)
    by Ga6thDem on Fri Nov 09, 2018 at 10:31:25 AM EST
    I certainly hope it is today. It would be a great cap to this week. So far nothing though.

    Parent
    Matthew (none / 0) (#13)
    by FlJoe on Fri Nov 09, 2018 at 11:02:09 AM EST
    Who?
    "I don't know Matt Whitaker," Trump claimed. "Matt Whitaker worked for Jeff Sessions. And he was always extremely highly thought of, and he still is. But I didn't know Matt Whitaker."
    another one of Clovis's coffee boys perhaps.

    Katyal and Conway (none / 0) (#18)
    by KeysDan on Fri Nov 09, 2018 at 01:10:45 PM EST
    assert that Trump's installation of Whitaker as acting attorney general is unconstitutional and illegal.  Moreover, and critically, they state that this means anything Whitaker does or tries to do in that fake position is invalid.   Critically, since after a prolonged but successful challenge in accord with Katyal and Conway arguments, havoc would surely be exacted in the undoing of any Whitaker/Trump misadventures.

    Under ordinary circumstances, this potential havoc might have a chilling effect on recklessness otherwise envisioned by Whitaker (Trump's reincarnation of Roy Cohen). However this thought may be undermined by the questionable legal chops of Whitaker, if we consider (as reported in the NYTimes) that Whitaker believes that the Supreme Court has made many bad decisions, the first of which, in his line-up, is the "idea" of Marbury v Madison"---an 1803 SC decision (v. idea)that established judicial review and a check on congressional power.

     And, seemingly at odds with his Marbury "idea", other bad SC decisions are all New Deal cases that were expansive of federal government by congress (including ACA).

    What was at stake in Marbury, in fact (none / 0) (#19)
    by Peter G on Fri Nov 09, 2018 at 01:53:01 PM EST
    was whether the Supreme Court could declare executive action unconstitutional, not Congressional legislation. But it's the heretofore-unquestioned source of the latter authority as well, that is, the entire (quintessentially American) notion of judicial review (part of "the judicial power" under Article III of the Constitution) being the final word on contested legal issues.

    Parent
    Whitaker is also disqualified from acting as AG (none / 0) (#22)
    by Peter G on Fri Nov 09, 2018 at 05:36:21 PM EST
    because he apparently cannot in good faith take an oath, or affirm (as required) to "support and defend the Constitution of the United States." This is because he says that his own religion would prevent him from supporting any candidate for judicial office who is "secular," that is, not traditionally religious. But Article VI, clause 3, of the Constitution promises that "no religious Test shall ever be required as a Qualification to any Office of public Trust under the United States."

    Parent
    the 9th circuit (none / 0) (#23)
    by Jeralyn on Fri Nov 09, 2018 at 06:04:27 PM EST
    changed Sessions name to Whitaker in court opinions starting yesterday. I saw 2  opinions, XXX v. Whitaker. Both were immigration cases where Sessions had been the defendant. I agree with you -- but seeing how fast the appeals court installed his name (1 day) means unconstitutional or not, until this winds its way through the courts, or Trump picks a permanent successor, he's in.

    Parent
    I think it might be (none / 0) (#27)
    by KeysDan on Sat Nov 10, 2018 at 11:52:38 AM EST
    easier to find what qualifies Whitaker from acting as Attorney General, despite the curious applaud by Rod Rosenstein that Whitaker is "a superb choice to replace Jeff Sessions."   Although, in the abstract, it is probably true that replacing Jeff Sessions with a fire plug would also be a superb choice.

    Whitaker has advocated for the position that the states have the right to nullify federal law, but they lack the political courage to do so.  Whitaker takes a position that did not survive the Civil War or the Constitutional Amendments that followed.  And, then there is the Supremacy Clause of the Constitution and obligation of state courts to apply it.

    That anyone in the position of DOJ leadership holds such a position, along with his objection to the Marbury decision is frightening. My hope is that his tenure will be no longer than that of the Mooch.

    Parent

    see Richard Ben-Veniste's oped in todays (none / 0) (#21)
    by Jeralyn on Fri Nov 09, 2018 at 02:49:02 PM EST
    I (none / 0) (#24)
    by FlJoe on Fri Nov 09, 2018 at 06:50:22 PM EST
    am not sure about the sourcing, but it seems very believable
    Matthew Whitaker, whom President Donald Trump named as his acting attorney general on Wednesday, privately provided advice to the president last year on how the White House might be able to pressure the Justice Department to investigate the president's political adversaries, Vox has learned.
    quite the mole
    Sources say that Whitaker presented himself as a sympathetic ear to both Sessions and Rosenstein -- telling them he supported their efforts to prevent the president from politicizing the Justice Department. A person close to Whitaker suggested to me that the then-chief of staff was only attempting to diffuse the tension between the president and his attorney general and deputy attorney general, and facilitate an agreement between the two sides.

    But two other people with firsthand information about the matter told me that Whitaker, in his conversations with the president, presented himself as a vigorous supporter of Trump's position and "committed to extract as much as he could from the Justice Department on the president's behalf."

    From the lock her up crowd, of course
    Whitaker also counseled the president in private on how the White House might be able to pressure the Justice Department to name a special counsel to investigate not only allegations of FBI wrongdoing but also Hillary Clinton. Trump wanted the Justice Department to investigate the role that Clinton purportedly played, as secretary of state, in approving the Russian nuclear energy agency's (Rosatom) purchase of a US uranium mining company.
    I hope Peter Strozk is taking is BP meds.

    It's a crazy world (none / 0) (#25)
    by CaptHowdy on Fri Nov 09, 2018 at 07:14:46 PM EST
    In any sane one this

    Trump had central role in hush money payments to women

    Would be a massive stop the presses story. Just watched Chris Hayes corner democrat on the house judiciary committee and almost literally forced him to say this

    (I rewound to get the quote right)

    "...(deep sigh) ...well..again...I think you have to look in the context of everything else happening in the campaign but...I would think that deliberate violations of federal campaign finance laws that have been in place for decades and are well understood could constitute a high crime and misdemeanor"

    Which is about as tortured an answer to what should have been a yes or no question as one can imagine.

    Parent

    Yes, I, too, saw (none / 0) (#26)
    by KeysDan on Sat Nov 10, 2018 at 11:40:07 AM EST
    that exchange.  It was a little surprising to see the Congressman (Jamie Raskin, D. MD) be so reluctant to provide a straight forward answer to Chris's question.  Raskin is a Harvard law graduate and a former law professor so the answer should have been an easy one. And, he is the congressman who objected to certifying the election of Trump as president because of Russian intervention/voter suppression.  

    It seems, therefore, that the Democratic caucus does not want to make public impeachment as their overarching focus. Since they all know that checks and accountability were foundational to the blue wave, it seems that investigations, concurrent with legislative actions, are to be their tactic.

     It is likely that the events to come: continuing revelations, results of their own investigations and the work of Mueller, will make impeachment obligatory.  There has been a reluctance for Democrats to talk openly, sticking with their "off the table" position derived from the electoral hit taken by the Republicans for the Clinton impeachment.

     However, the majority of the electorate these days sees the existential threat to democracy and can discern between engaging in extramarital affairs and criminal/anti-constitutional actions.  

    Parent

    It (5.00 / 2) (#28)
    by FlJoe on Sat Nov 10, 2018 at 12:09:30 PM EST
    would be silly for the Democrats to lay any of their cards on the table at this time, right now they should concentrate on stopping any lame duck efforts of the Republicans.

    We are still on defense for the next 52 days and the political landscape is changing by the hour. Who even knows what Jan 3rd will look like?

    Parent

    I fully get what he was doing (5.00 / 1) (#30)
    by CaptHowdy on Sat Nov 10, 2018 at 04:21:15 PM EST
    I understand that in every interview lazy stupid talking heads will be trying to get them to "say" impeachment

    I get it.  Still, it seems they - demos who want to be on tv - should also get this and should know how to respond without making the average viewer want to gouge their eyes out.

    Parent

    Jerry Nadler (none / 0) (#31)
    by CaptHowdy on Sun Nov 11, 2018 at 08:35:41 AM EST
    Just asked the very same question on CNN

    "It might very well be an impeachable offense"

    And proceeds to explain why.

    This is my point.  Just tell the truth.

    Parent