I follow politics very closely so I have a thorough understanding of the basic structures–the checks and balances–in the American governmental system. For example, I know that the U.S. Senate (not the House of Representatives) is responsible for vetting a president’s nominations. This is established in the advise and consent clause contained in Article 2, Clause 2 of the Constitution of the United States. There is a provision for recess appointments that may be necessary when Congress is out of session, although that’s less of an issue now that the horse and buggy has been replaced by jet airliners. In general, the president cannot just put someone in charge of a major department of the government without that person having been confirmed to the position by the Senate.
But things can get complicated and sometimes lawyers need to be consulted. Our agencies have deputies and undersecretaries that can serve on a temporary or interim basis if the leader of a department can no longer do the job, and these are the people who normally step up when a cabinet member quits, gets fired, or dies. The key requirement for these short-term substitutes is that they have already been vetted by the Senate for the position they presently hold, so presumably they aren’t completely unacceptable.
These arrangements were most recently codified in the Federal Vacancies Reform Act of 1998.
The law designates three classes of people who may serve as acting officials:
- By default, “the first assistant to the office” becomes the acting officer.
- The President may direct a person currently serving in a different Senate-confirmed position to serve as acting officer.
- The President can select a senior “officer or employee” of the same executive agency who is equivalent to a GS-15 or above on the federal pay scale, if that employee served in that agency for at least 90 days during the year preceding the vacancy.
When President Trump fired Jeff Sessions at his Attorney General, the “first assistant of the office” was Deputy Attorney General Rod Rosenstein. However, the entire point of firing Sessions was the take Rosenstein off the Mueller case, so this would not provide a solution for the president.
Trump could have chosen some other Senate-confirmed officer, even someone from the departments of Agriculture or Commerce. But he wanted someone he could depend on to protect him from the Russia investigation. So, he relied on the third category. According to the Department of Justice’s Office of Legal Counsel, Matthew Whitaker served for at least 90 days as an employee of the DOJ (as Session’s chief of staff) at a GS-15 federal pay grade. As a result, Trump seems to be technically within his rights to put Whitaker in as Attorney General for somewhere between 120-210 days (for the correct number, ask a lawyer).
However, the criminal intent behind the placement of Whitaker is a potential dealbreaker. Either way, the case is going to court:
A group of Senate Democrats is suing to block Matt Whitaker from serving as acting attorney general on grounds that his placement in the post was unconstitutional.
The suit, which is being filed by Sens. Richard Blumenthal (D-CT), Sheldon Whitehouse (D-RI), and Mazie K. Hirono (D-HI) in U.S. District Court for the District of Columbia, is the latest and most aggressive salvo against the Whitaker appointment. Last week, the Department of Justice Office of Legal Counsel defended Whitaker’s promotion in a memo that drew immediate criticism for its expansive understanding of the president’s power. That view is in hot dispute, including from the state of Maryland, which petitioned a federal judge to stop him from serving on constitutional grounds.
I wish I could agree with the following commentary from Democratic Senator Richard Blumenthal of Connecticut:
“Installing Matthew Whitaker so flagrantly defies constitutional law that any viewer of Schoolhouse Rock would recognize it,” Blumenthal said in a statement. “President Trump is denying Senators our constitutional obligation and opportunity to do our job: scrutinizing the nomination of our nation’s top law enforcement official. The reason is simple: Whitaker would never pass the advice and consent test. In selecting a so-called “constitutional nobody” and thwarting every Senator’s constitutional duty, Trump leaves us no choice but to seek recourse through the courts.”
First of all, this issue hinges on complicated interpretations of statutory language more than the broad outlines of the Constitution, and I don’t think the average American can understand it as easily as they can understand an episode of Schoolhouse Rock. Secondly, the real issue does not appear to be whether Trump can appoint someone with a GS-15 pay grade to the position, but whether he can corruptly install someone in any position for the express and implied purpose of obstructing justice.
Obviously, smarter people than me will hash this out in front of judges, but it’s not some slam-dunk case. They will have prove that they have standing, and then they’ll probably have to prove criminal intent.
What really makes me curious though is why so few Democratic senators added their name to this suit. If they want to be taken seriously, they should be unanimous on this. Does Chuck Schumer have some other plan or does he see this gambit as fated for failure?
Whenever the title is a question, the answer to that question is almost always `no’.
Such is the case here.
No.
.
There are apparently a bunch of questions regarding using the Federal Vacancy Reform act to bypass the succession process for justice that itself has been codified in law.
It is possible that the act is unconstitutional when it applies to those positions the constitution requires Senate approval for. It is also usually the case that, the more specific law, in this case the defined succession order for Justice, takes precedent.
It is transparently obvious that the president is using the vacancy reform act to specifically bypass Senate approval- by most accounts, Whitaker has about an ice cube in hell’s chance of being confirmed to the position. Now if our radical Supreme court will actually uphold this view of the constitution, well, that’s an entirely different issue. But if Whitaker does get the approval of Boofer and his gang, you can realistically kiss the Senate’s advice & consent role goodbye, at least for the duration of the Trump administration.
Yeah, they can argue that the 1998 law is either superseded or unconstitutional. I wish them luck with that. I think there is merit to their argument, but the OLC did have statutory language available to make the case for Trump.
Yes, that is a heavy lift, in the absence of anything saying section 508 is expressly superseded.
Specific trumps (sorry) general.
. . . I see value in highlighting how corrupt the Whitaker appointment is on the merits (i.e., merely the latest link in a long chain of obstruction of justice) by bringing the suit.
I wonder about your closing questions too, though. Why indeed aren’t Senate Dems all-in on this?
My guess (and it’s only that) is that all three of the Senators are on the Judiciary Committee and the rest of the Senate was deferring to their expertise.
Good point.
There are many other D members of the Senate Judiciary Committee. DiFi is the ranking member.
. . . on the Judiciary who didn’t sign on is arguably more interesting than those three who did:
Feinstein (Ranking member, i.e., current top Dem)
Leahy
Durbin
Klobuchar
Coons
Booker
Harris
Guessing all lawyers, and looks like lots of prosecutorial experience and even star power.
So still looks weird that only the three are pursuing this. Though political calculations related to rumored presidential ambitions of at least a couple of those may come into play?
You ask rhetorically:
I have not been impressed by Schumer’s leadership. Even before he folded about the judges, I felt it was a HUGE step down from the aggressiveness of Reid. Of course he is the minority leader, with less power. But NOT devoid of any power. He has not used it strategically.
Who is second in command to Schmuer? It is Durbin?
I think Schumer must really enjoy being minority leader, as he seems do be doing everything he can to guarantee that Democrats remain a minority in the Senate.
Sadly, based on the evidence at hand, that seems to be Schumer’s wish. He is NOT a fighter and he’s definitely not a liberal. Someone on the opposing side must have something pretty damaging on him. I don’t say that lightly, but he just is nowhere to be seen. Why is that?
Someone on the opposing side must have something pretty damaging on him.
Hasn’t Cheeto Mussolini contributed to him in the past? Given Cheeto’s fondness for Roy Cohn, I imagine he has something on Schumer. Or would make life very unpleasant for him. Just a guess given both are NYers.
Option #3: he’s a coward who is afraid of joining a suit like this. Schumer has no business as minority leader.
Does Chuck Schumer have a plan?….. hahahahahahahhahahahahahahhahah [breath] hahhahahhahahahahahahahah. Yeah he’s probably negotiating with McConnell on how to get more fascist judges passed through without hearings before the next Senate vacation.
It is questionable that the Senators’ lawsuit can make its way into the courts for any determination before January. Likewise the case brought to force access to Whitaker’s finances.
But more than timing, the messaging to Whitaker that he is being watched, that his actions will bear consequences for him personally is leverage for the Dems. The spotlight is hot.
Trump has challenged our institutions and Constitution like never before. I’m constantly reminded that we’ve crossed into a space where the spirit of the law and even the laws themselves may not be enough to rein in Trump’s determined obstruction.
https://talkingpointsmemo.com/prime-beta/todays-agenda-democrats-want-an-investigation-of-whitaker
Schumer wants Department of Justice Inspector General Michael Horowitz to look into “potentially unlawful or improper communications that may have occurred between acting Attorney General Matthew Whitaker, the Trump White House, and other entities,” he wrote in a letter this morning.
Well, the lower federal courts can churn out their decisions all they want–all made in good faith and based on existing precedent–but ultimately all roads now lead to the illegitimate 5 man “conservative” Supreme Court majority Der Trumper was permitted to install. The Muslim Travel Ban case sets the pattern, with the lower federal courts and judges agreeing that Trumper’s ban was an illegal latter day Korematsu, until Roberts’ Repubs 5 man “conservative” majority overruled them.
There’s no way around that now, which is why a rhetoric of de-legitimization of Roberts’ Repubs is essential. This should have been started the day after Justice Boofer was confirmed by Repub senators (+ Manchin) representing 44% of the country. Every 5-4 ruling by this “conservative” majority should automatically be seen as illegitimate and void. Unfortunately, as the party of government and institutions, Dems just can’t see their way clear to doing that. So what exactly IS the plan, Chuck and Nancy? The loss of the courts for 40+ years? I suppose waiting to see what the Justice Boofer majority actually does before denouncing them is a (passive) plan, so I hope at least that has been decided.
Assuming that the Dems aren’t arguing that installing Talibaner Whitaker is actually an obstruction of justice by Der Trumper, this is a purely legal question and can be “resolved” by the lower courts fairly quickly, should the district judge be so inclined. You can absolutely bet that had a Dem prez tried this DOJ gambit, Roberts’ Repubs would have slapped it down, with stirring patriotic language, ha-ha.
Actually, the more I think about it, the rhetoric of illegitimacy should have begun the day after GORSUCH was confirmed (by another senate “majority” representing a minority of citizens), thus altering the history of the Republic and creating a 5-4 Trumpite majority. And as for the “wait and see” approach, we have already seen what damage the illegitimate Gorsuch majority hath wrought (travel ban and union busting cases, for starters).
So passively waiting should no longer be an option for Dem leadership. They can’t piously act like we still live under a legitimate Rule of Law regime.
Actually it should have started when Merrick Garland was denied a vote.
. . . so much as a meeting with any Banana Republican senator.
Total obstruction via total dereliction of Constitutional duty in total violation of oath of office, to steal a SCOTUS seat.
Why I refuse to refer to Gorsuch or O’Kav by any other title than Occupant (and most definitely NOT “Justice”).
I’m not going to pretend to be a lawyer here, but I don’t need to be, because you’d have to be, as we used to say, Boo Boo The Damned Fool to not see that Whitaker’s clear bias against the Mueller investigation is the sole reason Trump put him in the AG role. The line of succession dictates that Rosenstein should be acting AG, but Trump don’t want him because he supports Mueller, as do the others in that succession. Trump also knows, with his clear bias and shady background, that even with a toady senate run by the Turtle Man, its a good bet that Whitaker could not pass senate confirmation. So Trump is relying on a crooked supreme court to back this travesty until Whitaker’s real job is done.
But as the court considers “…complicated interpretations of statutory language more than the broad outlines of the Constitution…” this will be over the heads of most Americans, but it will be that elephant in the room, e.g. “…whether he can corruptly install someone in any position for the express and implied purpose of obstructing justice” that voters do get and will make it that much more difficult for the partisan justices on the court to rule in favor of Whitaker without serious consideration of that fact. The supreme court will effectively be put in a position to rule sideways on shutting down the Mueller investigation, when it rules on Whitaker.
Voters came out in 2018 in record numbers to hold Trump accountable, and they’re not going to stand for killing the Mueller investigation this way. When the courts corruptly say Whitaker is legit, as I believe they will, its on.
I’m putting all my money in Chuck Schumer’s “plan”. That guy’s a genius! You can tell by all the 8 syllable words he uses in his long, vague run-on statements that are completely meaningless to 99% of Americans. When do we get to cut the line to these leaders (really political concrete blocks filled with $$$) that are drowning us? Are there no NY Dems who will primary this jackass? Oh, yeah, we saw what happened with Cuomo. Maybe the problem is the Dem base? Too scared of bucking the conventional wisdom, pissing off those wealthy donors?
After all, without all that money from the wealthy donors, there would’ve been a President Trump in the White House rather than our benevolent Hillary Clinton… Right? I mean she had an insurmountable money advantage, no? Thank god that worked out for us!
Booman writes:
Ohhh yes!!!
He certainly has “some other plan.”
Lots of anti-Schumer anger in the comments here.
Deservedly so.
The DNC-run Democratic Party is losing its base. Why? Because they are so frightened of losing even more than they have already lost that they are moving further and further towards the center. In the process, they are losing faithful Dem after faithful Dem.
The cracks are showing in the Old Guard.
Pelosi and her recent “bipartisanship” bit; Schumer mouthing little nothings during a state of near emergency, HRC criticizing Europe for not handling the refugee crisis well of forcefully enough, Bill Clinton rendered almost invisible because of the whole #MeToo thing, the ever-popular Smilin’ Jack Obama looking more and more like just another replaceable functionary in the odious DC hustle swamp.
Hell, even Bernie Sanders is showing his age.
Meanwhile, a new cast of Dems is arising.
Ready for a fight!!!
I don’t know when, but…barring some unforeseen catastrophe, there is going to be an uprising within the Democratic Party. A revolution!!! The initial warnings are there for all to see.
Will it happen soon enough to save the United States from total political collapse?
Or worse?
I don’t know.
If it isn’t strong enough to successfully put up a young, strong left-leaning candidate in 2020?
Maybe too late.
We shall see.
Won’t we.
AG
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