When Trump Has Whitaker Fire Mueller...Twice

Matthew Whitaker was appointed to do one thing: Fire Robert Mueller. But timing (and legality) may require a do-over.

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.

Comments
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DavidMKern
DavidMKern

For readers who want to understand the evidence for why Trump's appointment of Whitaker may be constitutionally legal, I recommend this article by Ken Klukowski:

“The Constitution could deprive the nation of a functioning government [i.e. an attorney general appointed by the President] every time a new party wins the presidency if the opposition party controls the Senate at the same time.

Congress’s answer [to this issue] was the Federal Vacancies Reform Act of 1998 (FVRA), which provides several routes for someone to fulfill the duties of these important positions while the nomination and confirmation process plays out. First, 5 U.S.C. § 3345(a)(1) allows the “first assistant” to a Senate-confirmed officer to serve as the acting officer on a temporary basis. Additionally, 5 U.S.C. § 3345(a)(2) allows the president to name a person who has served in that department for at least 90 days at a pay level of GS-15 or higher – essentially a top-level career civil servant or non-Senate political appointee – to likewise serve as the acting officer.

Either way, that acting officer can serve for 210 days (seven months), and that time is extended if the president has nominated a permanent replacement but the Senate has not yet voted on the nominee.”

Whitaker meets all the requirements of the FVRA, which could make his appointment constitutionally valid. At this point, it is hard to imagine any political person who hasn’t expressed some opinion on the Mueller investigation, which implies nearly any potential appointee has some sort of bias, and Whitaker's anti-Mueller slant is no less constitutional than a candidate with a pro-Mueller slant.

Given the way the Democrats fought to keep Kavanaugh from getting on the Supreme Court, if they controlled the Senate, does anyone doubt that they would reject any AG that wasn’t in line with their partisan desires, no matter how qualified? If so, a dominating Senate could control the AG for decades even if they were never able to elect a President.

The potential actions of Whitaker regarding Mueller (which at this point are pure speculation) are an entirely different issue than whether the FVRA gives Trump the right to appoint Whitaker to be Acting-AG until a Senate Confirmation process takes place. Regardless of how one feels about Trump, it is wrong to conflate the two issues.

Given the way the Democrats fought to keep Kavanaugh from getting on the Supreme Court, if they controlled the Senate, does anyone doubt that they would reject any AG that wasn’t in line with their partisan desires, no matter how qualified? If so, a dominating Senate could control the AG for decades even if they were never able to elect a President.

The potential actions of Whitaker regarding Mueller (which at this point are pure speculation) are an entirely different issue than whether the FVRA gives Trump the constitutional right to appoint Whitaker to be Acting-AG until a Senate Confirmation process takes place. Regardless of how one feels about Trump, it is wrong to conflate the two issues.

cynicalnerd
cynicalnerd

If Whittaker does take the step of firing Mueller, here's the defense they'll use in court to make it stick...


"Mueller is not an inferior appointee, but a principal appointee as understood under our constitutional. His powers are more akin to an United States attorney, not an assistant United States attorney. Moreover, his boss, Deputy Attorney General Rod Rosenstein, treats him as a principal officer — that is, Mueller is mostly free to conduct his investigation with few limits or restraints. ... ... As such, Mueller’s appointment violates the Appointments Clause. Mueller would’ve had to be nominated for Senate confirmation like any other principal officer in the Executive Branch. Rosenstein did not have the constitutional power to appoint a principal officer on his own anymore than the President himself does. ... ..."

JASmius
JASmius

>To be sure, it's a rich seam of refuse, but likely to turn up exactly zero evidence of actual collusion.<<

Pure wish-casting, that.

>After that, Trump has 56 votes to play with<<

Fifty-three, actually. (Plus Florida, Indiana, Missouri, North Dakota; minus Arizona and Nevada). And there will be a few from "blue" States, like Corey Gardner and Susan Collins, who will be uneager to be Trump's kamikazes, and others, like Mike Lee and Mitt Romney, who owe him nothing and are immune to his bullying.

And given Whittaker's, shall we say, "ethics problems" (i.e. being a subject in an FBI criminal investigation), his confirmation to the job is....unlikely.

>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.<<

It would be political suicide, it would guarantee his impeachment, and the courts would quickly reverse it based on the unconstitutionality of Whittaker's recess appointment.

Trump doesn't know or care about this, but it is fact nonetheless.

RogerT
RogerT

If you're right and Trump does have Whitaker fire Mueller, it will be interesting to see what arguments will be marshaled to defend POTUS (the guy who observed, perhaps correctly, that he could shoot someone on Fifth Avenue and he would still have loyal supporters).

DavidMKern
DavidMKern

Perhaps we need to start a hashtag to impeach Senators McConnell, Grassley and Graham because according to CNN they are clearly in on the “Fire Mueller” conspiracy:

For those of us who believe in the rule of law, Trump critics seem to have moved beyond “convicting people based on anonymous accusations” to “convicting people based on what we think they might do.” With all due respect to Erick, he is not a judge on a federal court. When there are issues regarding conflicting laws on who can serve as an “Acting AG,” it is the federal court system that is the proper authority for deciding constitutional questions. In multiple comments to a Susan Wright’s post, I referenced an article that presents legal views on both sides of this issue, assuming one believes that the way to settle constitutional questions is to have attorneys from both sides present their cases before a federal court authorized to make constitutional judgments:

There are lots of good reasons why Trump would never fire Mueller, no matter how badly he wanted to, with a serious impeachment threat for obstruction being at the top of the list. Perhaps Trump simply wanted somebody other than Deputy AG Rosenstein to be in charge of investigating questionable JD behavior under Rosenstein’s control, including widespread improper redactions that interfered with Congressional investigations, as well as other issues: