Category Archives: The Scandals

Please Don’t Get Used to This

Martin Longman at the Washington Monthly makes an important point:

So, here we have two quotes from the president. They are both short and succinct and as uncomplicated as statements can be:

“I know Matt Whitaker.” –October 10, 2018
“I don’t know Matt Whitaker.” –November 9, 2018

Those two statements would not necessarily contradict each other if they came in reverse chronological order. After all, when you spend some time with someone you had not previously met, then it’s no longer true that you do not know them, but it remains true that you didn’t know them at an earlier period of time. But you can’t know someone in October and no longer know them in November.

[…]

There are a lot of people discussing the constitutionality of putting Whitaker in charge of the Department of Justice and speculating about why it was done and what it might mean. Those are all interesting angles on this story which should be discussed. But I just want to pause for one second to point at those two conflicting statements from the president of the United States.

“I know Matt Whitaker.”
“I don’t know Matt Whitaker.”

He has absolutely no conscience or shame, no pangs of guilt or any possibility of feeling remorse when he contradicts himself like this. Say what you want, but this isn’t normal.

It is far too easy to become inured. Bad things happen if we do.

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“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

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.

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

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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Plumbing the Entrails of the Cohen Plea Deal

One of the less-minor mysteries of yesterday’s twin courtroom bombshells was the absence of a formal plea deal between Cohen and the government.  Fortunately we have expert local lawyer David Oscar Markus to explain it to us:

The parties agreed that no variance arguments can be made, up or down. This is a BIG concession by Cohen’s lawyers and is sometimes seen in the SDNY when there is cooperation credit coming. Without the cooperation credit, it’s a terrible deal for Cohen. He’s basically pleading guilty to all of the offenses and not getting anything in return other than the 3 points. If he pleaded straight up, he would at least be able to argue for a sentence under the guidelines. Even with the potential of a cooperation deal, it seems very harsh.

That’s why it’s obvious that Cohen is cooperating, even though it’s not specifically mentioned in the plea agreement. Otherwise, the deal makes no sense. He said as much during his colloquy today and his lawyer, Lanny Davis, has been all over the news saying the same thing.

If he gets cooperation credit, the defense will be asking for a significant reduction below the guidelines — probably all the way to probation.

Okay.  Now I get it. Thank you.

Posted in Law: Criminal Law, The Scandals | 3 Comments

Waiting

Like so many people I know, these days I spend too much time following the news. I am reminded of how, back in the mid ’80s when I visited Israel, everyone always seemed to be listening the radio — just in case something happened.

If Cohen really has flipped, then it’s likely a question of when not if Trump has to go.

If we have reached the beginning of the end, then now timing is everything. On the one hand it doesn’t yet seem likely that political opinion will congeal quickly enough to head off the Brett Kavanaugh nomination; once he’s in place the Supreme Court tilts a bit further in favor of the Imperial Presidency which might help Trump in some versions of a showdown. Conversely, so long as the nomination is in play, there is little chance Trump will fire Assistant Attorney General Rod Rosenstein or even the AG as everything will break loose; but so long as they are both in office there is no way to get rid of Mueller.

So the second worst-case scenario is Kavanaugh gets confirmed, and then Trump goes nuclear on the Special Counsel. I think that would lead to impeachment, but it would be ugly. (The worst case is of course that Trump actually goes nuclear on something.) Then of course there’s the whole set of issues around whether Pence is implicated too…

Enough. Here’s a bit of comic sort of relief.

Posted in The Scandals | 19 Comments