Category Archives: Trump

“Constitutionally, Matthew Whitaker is a Nobody”

If Neal K. Katyal and George T. Conway III write an op-ed together, you have to figure it’s going to be good.  And oh boy, is it good.

The two dissect the appointment of Matthew Whitaker as acting attorney general of the United States. And they stomp all over it.

Much of the commentary about Mr. Whitaker’s appointment has focused on all sorts of technical points about the Vacancies Reform Act and Justice Department succession statutes. But the flaw in the appointment of Mr. Whitaker, who was Mr. Sessions’s chief of staff at the Justice Department, runs much deeper. It defies one of the explicit checks and balances set out in the Constitution, a provision designed to protect us all against the centralization of government power.

If you don’t believe us, then take it from Supreme Court Justice Clarence Thomas, whom Mr. Trump once called his “favorite” sitting justice. Last year, the Supreme Court examined the question of whether the general counsel of the National Labor Relations Board had been lawfully appointed to his job without Senate confirmation. The Supreme Court held the appointment invalid on a statutory ground.

Justice Thomas agreed with the judgment, but wrote separately to emphasize that even if the statute had allowed the appointment, the Constitution’s Appointments Clause would not have. The officer in question was a principal officer, he concluded. And the public interest protected by the Appointments Clause was a critical one: The Constitution’s drafters, Justice Thomas argued, “recognized the serious risk for abuse and corruption posed by permitting one person to fill every office in the government.” Which is why, he pointed out, the framers provided for advice and consent of the Senate.

What goes for a mere lawyer at the N.L.R.B. goes in spades for the attorney general of the United States, the head of the Justice Department and one of the most important people in the federal government. It is one thing to appoint an acting underling, like an acting solicitor general, a post one of us held. But those officials are always supervised by higher-ups; in the case of the solicitor general, by the attorney general and deputy attorney general, both confirmed by the Senate.

Mr. Whitaker has not been named to some junior post one or two levels below the Justice Department’s top job. He has now been vested with the law enforcement authority of the entire United States government, including the power to supervise Senate-confirmed officials like the deputy attorney general, the solicitor general and all United States attorneys.

We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design. Senate confirmation exists for a simple, and good, reason. Constitutionally, Matthew Whitaker is a nobody.

Neal Katyal was an acting solicitor general under President Barack Obama and is a lawyer at Hogan Lovells in Washington. George T. Conway III is a litigator at Wachtell, Lipton, Rosen & Katz in New York. Conway is also a famous spouse and, incidentally, a Yale Law School classmate of mine.

Posted in Law: Constitutional Law, The Scandals | Leave a comment

Nothing Remotely Like a Fascist

Nothing to worry about, move along.

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Sing It

What does it mean when you have lost not only Taylor Swift but also Barbra Streisand:

One thing it means is a spike in voter registration.

(Not that I ever ever imagined I’d link to a Barbra Streisand video…)

Posted in 2018 Election, Kultcha, The Resistance | Leave a comment

If Trump Fires Rosenstein, Who’s Mueller’s New Boss?

Marty Lederman has a detailed answer in his (revised) post, Who Might Replace Rod Rosenstein and What Would it Mean for the Mueller and SDNY Investigations?: A Deep Dive.  Worth a read.

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BOOM!

There was a hurricane in DC today, and I don’t mean Hurricane Florence. Paul Manafort agreed to testify about Russian involvement in the 2016 election and to forfeit $46 million both civilly and criminally. It seems Manafort went before the grand jury before his deal was announced in open court, meaning there was no time for a pardon to short-circuit it. And civil forfeiture is pardon-proof. As Marcy Wheeler says:

So here’s what Robert Mueller just did: He sewed up the key witness to implicate the President, and he paid for the entire investigation. And it’s only now lunch time.

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The Op-Ed

Everyone is talking about the NYT op-ed by the Trump appointee who sees him/herself as protecting the US from a clear and all-too-present danger in the Oval Office. I’m on the road, so I’m late to the party, but here in very summary form is my two cents, taking the op-ed as true for sake of discussion.

  1. Underminig the boss is often a moral problem, but it is only a constitional problem if you do it wrong. Manipulating the boss is different from just ignoring the boss. Playing bureaucratic games to get your way is probably a Washington passtime than is older than the White House. Flat out ignoring the boss’s orders is subversive of the constitutional order, a violation of a duty of loyalty to the boss, and arguably a violation of every appointee’s oath to preserve and protect the Constitution of the USA– a document that for better or much worse has made Trump the President in law as well as in name.
  2. What if the boss is morraly terrible? Ignoring the boss could be a very hard moral issue in extreeme cases. Some ends do justify some means. If the issue were the preservation of the Republic, or preservation of many lives, I think our author would have moral (but not legal) justification for the behavior. If the issues are, as we get the sense they are, ‘mere’ policy – stopping Trump doing things that are very very stupid but not existential dangers – then the moral justification for the illegality and personal disloyalty is much weaker. Quitting and saying why might be a better course.
  3. I am reminded of Daniel Drezner’s piece on whether you should work for Trump, and especially Elliot Cohen’s “I told conservatives to work for Trump. One talk with his team changed my mind”. The warning signs were there from the first.
  4. It’s hard to read the oped without speculating unkindly about the author’s motives. If your goal really were to subvert from within in the interst of the survival of the Republic, why would you advertise that until after the fact? That op-ed is not going to make the job easier. It might be justified if the goal were to bring down this President (and bring in Mike Pence – an improvement how exactly?), but there’s nothing in the four corners of the oped to support that view. Rather, it seems to me like an exercise in ass-covering, a marker that some weasel put down for the future so that after the whole con collapses he/she can disclaim the taint that–if there is any karma or justice–will follow everyone who was part of Operation FUBAR for the rest of their natural life and beyond.
  5. I’m also reminded of what the late great Charles L. Black, Jr. said about how he thought a government official should deal with the hypothetical ‘terroris with an A-bomb’ scenario. The scenario was and is deployed to test intuitions about whether torture could ever be justified–what people who say torture is never justified would do if they believed the terrorists’ claim to have put the ticking time bomb in a big city. Read the fuller account, but the takeaway is that if you decide conscience requires an illegal act, you have a moral duty to turn yourself in right afterwards and face the music, whether it’s prosccution or pardons and a medal.Our op-ed writer is not following that model.
  6. And finally,
Posted in Law: Constitutional Law, Law: Ethics, The Resistance | 3 Comments