Rachel Maddow raised this issue last night when she was talking about the hearing yesterday in the case involving the Stone aide. She said that the attorney representing the Office of the Special Counsel, who is one of the most prominent appellate attorneys in the country, was telling the Court that basically the OSC has to report EVERYTHING to the Acting AG â canât make a move without reporting it.
Well, thatâs in part how Rosenstein defended the OSCâs legitimacy, so it should not be surprising that the same argument is now being made about his successorâs authority.
Somebody is forced to show his hand ?
Check.
If it gets to the Supreme Court - checkmate.
God and the House of Representatives - please help us.
This is really interesting. Muellerâs appointment is legal because he reports to a senate confirmed officer, who directs his actions. He is an âinferior officerâ in constitutional lingo. This is why the special counsel law was upheld in Morrison v. Olson. There is no reasonable argument that Muellerâs appointment is not permissible.
The problem with The Iowa Loon that Trump put in charge of DOJ is that he is NOT senate confirmed, has never been, and in addition he never exercised executive authority as chief of staff, and as such there are major constitutional and statutory issues with him being in charge of anything. Broadly speaking the issues presented by his appointment are the flip of those with Mueller. Mueller has a boss that controls him, and needs to report to a senate confirmed officer, which he does. On the Other hand Whitaker needs to be senate confirmed since he has no direct boss, only the president.
But the upshot of this is not clear. Rosenstein is still senate confirmed, and believe the most likely outcome is the appellate court noting that Rosenstein is in charge and in place when casting doubt on any actions that would be taken by Whitaker. I find it hard to believe that the Court would say that Mueller has to go since the president president put someone illegitimate over his investigation. Such a ruling gets into the area of âthe constitution is not a suicide pactâ as put by Justice Jackson
Whitaker formerly employed by business that was convicted of Fraud while he was at the helm.
Another itâs my ball and if I donât get my way Iâm taking it away argument.
Good analysis. Another consequence is that Mueller may be frozen in place until there is a ruling.
The funny thing now about taking questionable, hack arguments to SCOTUS is that Chief Justice Roberts does not want his name - The Roberts Court - associated with questionable, overtly political decisions. Or so I have heard. Citizens United and Gutting the Voting Rights Act evidently donât count.
So WHO in the DOJ will respond to the Appeals Courts question?
I say, the life size Mr. Clean isnât qualified to do so. Mr. Clean has NOT been confirmed by the US Senate.
I had wondered about this. To the extent that Mueller can, he can get a sign off from both Rosenstein and the bald Iowa Grifter, but to the extent that Whitaker refuses to do this, it makes proceeding hard. But if he does, I would hope down the road he is charged with obstruction of justice by the next administration and sent to jail.
Donât be so sure. This issue is COMPLETELY WITHIN a line of mostly but not all dissenting opinions that Justice Clarence Tomas has CONSISTENTLY pushed for over 20 years now. He himself was Senate confirmed when he worked in several agencies during the Reagan and early part of the GHWB administrations, and heâs pretty clearly always thought he didnât deserve the treatment he got when he was nomâd for SCOTUS in large part BECAUSE he already been Senate confirmed in other government roles.
Moreover, the Chief Judge, Roberts, is a veteran of the same line of authority when he was serving imost recently before his first federal judging job, and heâs signed onto a number of those Thomas opinions.
Thomas and Roberts both take a âlong viewâ on the implications of the kind of deviation that Toad came up iwth this week in selecting Whitaker to run the DoJ on a âtempâ non-Senate confirmed basis: if Toad gets away with it, then the precedent will be there for the next Dem president to do that same thing.
So I donât take for granted that SCOTUS will agree with Toad on this case.
That was a civil settlement, BUT⌠The WSJ just reported that the FBI has an active criminal investigation into the company.
So for that and other reasons, Whitaker may be acting AG for about as long as Harriet Myers was a Supreme Court nominee, rendering these arguments moot.