Today Fox’s not-quite-so-crazy on air Judge,
Anthony Andrew Napolitano, stated that the selection of Jeff Session’s former chief of staff Matthew Whitaker as Acting AG may in fact be illegal because he was never confirmed by the Senate.
“Under the law, the person running the Department of Justice must have been approved by the United States Senate for some previous position. Even on an interim post,” Napolitano said.
Napolitano continued saying that next in line for the position is Deputy Attorney General Rod Rosenstein.
“[Whitaker] was not confirmed by the United States Senate for a leadership position at the Justice Department. The White House will have to work this out. Who has been confirmed and who’s next in line? Deputy attorney general Rosenstein,” he said.
Even if you disagree with Napolitano and feel that as a recess appointment Whitaker can at least serve until the beginning of the new Congress in January, he would still have a problem under the Presidential Vacancies Act to serve up to 210 days because now former AG Sessions specifically stated that he didn’t resign, he was asked to resign which means he was fired and the PVA doesn’t apply.
On top of this there is the issue that Mr. Whitaker has also repeatedly criticized the Mueller investigation indicating that his taking over control of that investigation from Rod Rosenstein — which has just occurred — may be a direct ethics violation under DOJ rules.
Napolitano also stated Whitaker himself, if he was put in this position specifically to interfere with Mueller, could himself become a target of Mueller’s investigation.
“The president can fire an attorney general if for almost any reason. He cannot fire him if the purpose is to shake up the leadership of the Justice Department in order to interfere with a criminal investigation that the president wants to interfere with,” Napolitano said
He added, “If that’s the reason for which Mr. Whitaker is now the acting Attorney General of the United States — Mr. Whitaker himself could be in the crosshairs of Bob Mueller.”
This would apply to potential obstruction of justice an issue which — even though Mueller has agreed to accept written questions about collusion — he’s reserved the right to question Trump about obstruction in person about.
Whitaker has said about the Trump Tower meeting with Veselnitskya that someone like Don Junior “would always take that meeting” which considering just campaign finance and Logan Act violation is just bonkers.
“What happened here is this lawyer used a pretext to get a meeting with, you know, some important campaign officials to really talk about the issue she wants to talk to which is getting rid of this U.S. policy regarding adoptions,” Whitaker said in the July 2017 CNN clip recorded while he was still executive director of the Foundation for Accountability & Civic Trust, a conservative watchdog group.
He added that Russian lawyer Natalia Veselnitskaya used the “B.S. excuse of saying she had opposition research” to lure Trump Jr., former Trump campaign manager Paul Manafort and the president’s son-in-law Jared Kushner to the infamous Trump Tower meeting in July 2016.
“We all agree it’s ludicrous,” Whitaker said of the Russian’s promise of “dirt” on Clinton.
He’s also whined that the Mueller investigation had “gone too far”
even though the original letter by Rod Rosenstein specifically authorized Mueller to not just investigation connections between Trump and Russia but also “any other relevant matters” which arose as a result of that investigation.
“Deputy Attorney General Rod Rosenstein’s letter appointing special counsel Robert Mueller does not give Mueller broad, far-reaching powers in this investigation,” the erstwhile AG chief of staff wrote. “He is only authorized to investigate matters that involved any potential links to and coordination between two entities — the Trump campaign and the Russian government.”
No, he wasn’t.
By virtue of the authority vested in me as Acting Attorney General, including 28 U.S.C.§§ 509, 510, and 515, in order to discharge my responsibility to provide supervision andmanagement of the Department of Justice, and to ensure a full and thorough investigation of the Russian govemment’s efforts to interfere in the 2016 presidential election,
I hereby order as follows:(a)Robert S. Mueller III is appointed t() serve as Specia] Counsel for the United States Department of Justice.(b)The Special Counsel is authorized to conduct the investigation confined by then-FBI Director James 8. Corney in testimony before the House Permanent Select Committee onIntelligence on March 20, 2017, including:(i)any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and(c)(ii)any matters that arose or may arise directly from the investigation; and(iii)any other matters within the scope of 28 C.F.R. § 600.4(a).
If the Special Counsel believes it is necessary and appropriate, the Special Counsel isauthorized to prosecute federal crimes arising from the investigation of these matters.(d)Sections 600.4 through 600. l 0 of Title 28 of the Code of Federal Regulations areapplicable to the Special Counsel.Date '
Also Whitaker has issued tweets like this:
DOJ ethics lawyers have a very good reason to request Whitaker’s recusal in this case, and if he refuses it then may become an issue for the Inspector General.
I don’t see any way that this stands.
Frank Vyan Walton
So now we have some more opinions weighing in, in this case from Jeremy Bash of MSNBC who was the former chief of staff under the DoD and CiA.
“There is a statute that governs how DOJ is supposed to handle appointments to these acting positions,” said Bash, a former chief of staff for both the Department of Defense and the CIA. “It says the individual who becomes active attorney general must be Senate-confirmed. Of course, the chief of staff is not confirmed.”
The 48-year-old Whitaker, who was hired by Sessions shortly after writing a CNN op-ed saying the Mueller investigation had gone too far, had previously worked in private law practice and headed the conservative Foundation for Accountability and Civic Trust before joining the Trump administration.
“I think it’s fair to say that the appointment from the chief of staff position, first of all, is unprecedented,” Bash said, “and second, it’s quasi-legal, and it was really done, I think, as part of an effort to obstruct justice, to obstruct the Mueller investigation, to starve it, to constrain it.”
Frank Vyan Walton
On CNN Jeffrey Zeldin just said that even if Whitaker wasn’t Senate confirmed recently, he had previously been confirmed and worked for the DOJ as a U.S. Attorney in Iowa for more than 90 days at more than a GS-15 level and that makes his appointment valid.
Frank Vyan Walton
Conservative Attorney George Conway alone with former Acting Solicitor General Neal Katyal have weighed in arguing that Whitaker’s appointment is unconstitutional.
George Conway, the husband of White House adviser Kellyanne Conway, has written a scathing op-ed in the New York Times condemning President Donald Trump for his decision to fire Attorney General Jeff Sessions and replace him with loyalist Matthew Whitaker.
The editorial, which was written with Democratic attorney Neal Katyal, goes even farther than the argument made on Fox News Thursday morning by legal analyst Andrew Napolitano, who said that Whitaker was not legally qualified to be appointed as acting AG.
“The flaw in the appointment of Mr. Whitaker, who was Mr. Sessions’s chief of staff at the Justice Department, runs much deeper,” they write. “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.”
“We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design. Senate confirmation exists for a simple, and good, reason,” they write. “Constitutionally, Matthew Whitaker is a nobody. His job as Mr. Sessions’s chief of staff did not require Senate confirmation… For the president to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document.”
Ok, that’s something. So far only Zeldin says this is legit and only then by a fairly thin technicality that Whitaker was a former G-15 level DOJ employee.
Frank Vyan Walton
Oh, and also Whitaker is a scam artist. so Trump should appreciate having a kindred spirit at his knee.
Matthew Whitaker was paid to sit on the advisory board of World Patent Marketing, which was ordered in May this year to pay a $26m settlement following legal action by federal authorities, which said it tricked aspiring inventors.
Court filings in the case against World Patent Marketing show that Whitaker received regular payments of $1,875 from the Florida-based company, and sent a threatening email to a victim of the alleged scam.
Whitaker publicly vouched for the company, claiming in a December 2014 statement that they “go beyond making statements about doing business ‘ethically’ and translate those words into action”.
Whitaker, a former US attorney for the southern district of Iowa, said at the time: “I would only align myself with a first-class organization.”