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 Trump’s adviser KAC) 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
Prominent ethics lawyer Stephen Gillers says 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).
What will 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 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 demeaning to the Mueller investigation while echoing the positions of Donald Trump and Don Jr. all over cable TV, I suspect the answer is yes, Whitaker would do that. He could care less what Congress has to say about it.
Trump and Whitaker, the legal pundit who caught Trump’s fancy when Trump saw him on TV, 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 meCounting Crows, Mr. Jones, lyrics © Universal Music Publishing Group
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.