First, let me say that the new Acting Attorney General looks the part more than any other person to hold the job. Matthew Whitaker looks like a Fed, a guy you don't wanna mess around with. And we know that Trump made Whitaker the Acting AG for one reason only: To fire Robert Mueller.
Let me take your hand and lead you through the scenario. Come along.
On January 3, 2019, a new Congress will be sworn in. The House of Representatives will be controlled by Democrats, and led (likely) by Speaker Nancy Pelosi. Every House committee will be chaired by Democrats. Some of the chairs-in-waiting have already been overheard making nefarious plans to impeach the president and Justice Brett Kavanaugh.
The House will push the Mueller investigation to expand into every possible nook and cranny of The Trump Organization, including the president's tax returns, his family, his business dealings, and any other embarrassing or potentially damaging information.
To be sure, it's a rich seam of refuse, but likely to turn up exactly zero evidence of actual collusion.
Not wanting to spend the last two years of his term wallowing in the crapulence Democrats are sure to uncover using Mueller as their shovel, Trump wants to fire Mueller. He's wanted to fire Mueller since the day Mueller began his Inspector Javert-esque march toward sniffing out all possible crimes and criminals (even if they're arm-twisted into a guilty plea) even remotely connected to the Trump family or campaign.
But Jeff Sessions recused himself. That put Trump in a hard place, since Rod Rosenstein spent all his powder firing James Comey from the FBI. Getting Rosenstein to fire Mueller is an impossibility.
So Trump waited until after the midterms, not even 24 hours, to fire Sessions. Technically, Sessions resigned. And Trump put in Whitaker to do the dirty deed before January 3, 2019.
The question is now: Can Whitaker do it? The legal answer seems to be...probably not.
There's a very compelling argument that Trump's appointment of Whitaker is itself unconstitutional. Read this piece in the Wall Street Journal.
> 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.
Erick Erickson, our leader and a former elections lawyer, agrees.
As a principal law enforcement officer and cabinet level official, Whitaker needs to be confirmed by the Senate. But the Senate, even with a slim Republican majority, is unlikely to confirm him before the new Congress is seated, on January 3, 2019. After that, Trump has 56 votes to play with and a much more compliant gaggle of Senators who owe him big time (in his mind at least).
This leaves the president in a conundrum. If Whitaker fires Mueller, the courts, and likely the Supreme Court, will find that action unconstitutional, as it did with Obama's recess NLRB appointment. So the firing will be vacated.
But the act will have been done, creating all kinds of media whirlwinds and political thunderclaps.
Then after January 3, 2019, the Senate could act to confirm Whitaker. And Whitaker can again fire Mueller, this time for real.
So Whitaker gets to fire Mueller twice.
Or Trump could go the Nixon route and fire everyone until he finds a soul willing to dispose of Mueller. Or he could attempt to directly fire Mueller. Certainly, he could do it, but then he'd invite articles of impeachment, plus enough Congressional investigations to choke his agenda for the remainder of his term.
If I had to bet, I'd say Trump will have Whitaker fire Mueller at 5:00p.m. on Wednesday, November 21. That's the day before Thanksgiving. It would be a wonderful gift to the media who want to be home for the holiday with their families. Either miss turkey dinner or let the third string cover it.
My prediction is based on nothing more than Trump's tendency to be a 7-letter word beginning with "a" and ending with something you dig with a shovel.
I can be wrong here, but I don't think Trump will let something as small as constitutional law get in the way of his wishes. He'll have Mueller fired, and do it as many times as he has to, to make it legal. Twice should do it.
