When Trump Took Control of His Own Investigation

There's never been a mention that Donald Trump plays chess, but after a midterm House victory put him in check, the president countered with a move that puts the government in check. He has installed a Trump-besotted sycophant
Jeff Sessions deposed
as acting attorney general and only mere weeks after installing as Supreme Court justice who has said sitting presidents cannot be indicted or even subpoenaed.

Suddenly, the landscape has changed, and could keep changing day-to-day at Trump's whim. We try here to outline the possible scenarios.

The new interim head of the Justice Department, Matthew Whitaker, has made it something of a campaign to denigrate the Mueller investigation, which he now will oversee, calling it a "witch hunt", approvingly re-tweeting an article that called it the "Mueller lynch mob", filling airwaves and cables with assaults designed to attract the notice of the administration and hopefully Trump himself. He left a long trail, much of in interviews on obscure radio programs that the media impressively dug Character witness:  The owner of the consumer complaint website RippoffReport.com says that in 2015 Whitaker threatened, "using a lot of foul language", to "ruin my business if I didn't remove" all negative comments about World Patent Marketing Inc, with which Whitaker was associated as this article covers below. Whitaker, "would have the government shut me down under some homeland security law".
    
up within hours of his appointment. On one he said in June of last year, "There's not a single piece of evidence that demonstrates that the Trump campaign had any illegal or even improper relationships with the Russians. It's that simple". On Hannity that May he said that, based on reporting, it didn't sound to him that then-FBI chief, James Comey, "believed that the president was telling him to stop the investigation" of Michael Flynn and anyway, "that doesn't rise to the level of obstruction of justice". As for the Mueller investigation, "I think it was ridiculous that Rosenstein determined that the Department of Justice couldn't handle this in their ordinary course of work", he said in an August 2017 radio interview. Whitaker told a co-panelist backstage at CNN that he readily flew from his home base in Iowa to New York just to be on CNN talk shows precisely to get a job in the Trump administration. It worked.

His record of flagrant bias brought immediate howls from Democrats, only to make fools of themselves for demanding that Whitaker, like Sessions, recuse himself from all matters concerning the Mueller investigation. Of course he won't recuse himself. He was appointed by Trump on that basis. The natural line of succession would have been Deputy Attorney General Rod Rosenstein, impeccably qualified after 26 years of service, but Rosenstein was the stalwart who shielded the Mueller team from the White House and surrogates on the House committees doing Trump's bidding.

Instead, the flabbergasting choice of Sessions' chief of staff rather than a career professional made it snickeringly obvious what Trump was up to. Whitaker was a virtual mole, the White House's "eyes and ears" at Justice, Trump's chief of staff, Gen. John Kelly, had said. A confidential source in the administration told a Vox reporter that Whitaker was "committed to extract as much as possible as he could from the Justice Department on the president's behalf" and that he had "privately provided advice to the president last year on how the White House might be able to pressure the Justice Department to investigate the president's political adversaries".

And yet President Trump told a reporter, "I don't know Matt Whitaker". He had told Fox News last month, "I can tell you Matt Whitaker's a great guy. I mean, I know Matt Whitaker".

We should expect the ethics department at Justice, career officials who have sworn to uphold the Constitution and not the president, to weigh in on Whitaker's suitability to oversee the special counsel. If their ethical guidance says Whitaker is conflicted by the trail of pronouncements he has left behind, and they insist that he self-recuse, his refusal could at the least bring lawsuits, make the public more aware of the corruption, and spur rebellion in the department itself.

Beyond ethics, there is the question of whether the appointment of Whitaker is unconstitutional. In a New York Times op-ed, Neal Katya, law professor and an acting solicitor general under Obama, and George Conway, once reportedly considered to be solicitor general under Trump but better known as the husband of White House Senior Adviser Kellyanne Conway, flatly stated that "It’s illegal" to make anyone acting attorney general not confirmed by the Senate. Article II, Section 2 of the Constitution requires Senate confirmation for all "Officers of the United States". As chief of staff, Whitaker did not need confirmation, but is now acting as a "principal officer" reporting directly to the president. Lacking confirmation, "anything Mr. Whitaker does, or tries to do, in that position is invalid", they argue. “It defies one of the explicit checks and balances set out in the Constitution, a provision designed to protect us all against the centralization of government power".

Trump made the appointment under the 1998 Federal Vacancies Reform Act which allows the president to fill an important slot in the government for an interim period of up to 210 days. Two problems are drawing arguments from constitutional lawyers.

 Interim appointments are permitted only for vacancies brought about by death or resignation. Using the Act to fire someone and fill the position without confirmation is not permitted under the law. Was Sessions pressured to begin his letter to the president with, "At your request, I am submitting my resignation" to get around the law's restriction on firing? Even so, the argument is that resignation at the request of a superior is a firing, and that makes the appointment illegal.

 The second argument is that an interim appointee serving in a "principal officer" position — certainly the case for acting attorney general — must, according to the above-cited Appointments Clause of the Constitution, be confirmed by the Senate. The Legal Counsel office under President George W. Bush came up with the opinion that anyone serving only in an acting capacity is an "inferior officer" meant to step in immediately to keep the government working and therefore not subject to the delays of confirmation. (that office was infamous for serving up tortuous opinions to suit Bush and Cheney — Google "John Yoo" and "torture").

But three years ago, the Supreme Court decreed that all the decisions of an unconfirmed Obama interim appointment to the National Labor Relations Board were invalid, with Justice Clarence Thomas writing in his opinion that it is the position that decides whether it is that of a "principal officer.

In any event, it is unlikely that Whitaker could be confirmed. He was the United States Attorney for the Southern District of Iowa from 2004 to 2009, but what appears to be his last job before turning himself into a media commentator was his membership on the advisory board of a Miami-based company named World Patent Marketing that charged inventors thousands of dollars to patent and promote their creations but in fact never delivered. Whitaker appeared in a couple of promotional videos for the company and, citing his background as a U.S. Attorney, he threatened at least one unhappy customer with "serious civil and criminal consequences".

The Federal Trade Commission shut the company down last year after calling it a fraudulent scheme that "collected almost $26 million by promising starry-eyed inventors it would turn their inventions into best sellers", said the publication. The FBI has initiated a criminal investigation of the company. The FTC obtained a judgment of just under $26 million to be returned to consumers, a scam and amount uncannily like the $25 million Donald Trump had to pay in restitution to defrauded students duped by his Trump "University".

The senators in a confirmation hearing would also undoubtedly like to hear Whitaker's views about the courts, which he thinks have too much power to strike down laws and should be inferior to the other two branches of government. Of all the "bad rulings" of the Supreme Court, Whitaker says he would start with 1803's Marboro v. Madison, the foundational bedrock ruling which vested the review of laws with the courts. It is revealing of Trump's disdain for the law that he would choose someone of Whitaker's destructive views to be at the top of the Justice Department.

That the president fired Sessions the moment the midterm elections were over at first indicated he would fire Mueller before Mueller could issue an imminently expected report. But now conjecture has settled on a different likely strategy.

Firing Mueller would create an uproar. Already there were impromptu protest demonstrations across the country the moment Sessions was cashiered. Moreover, the regulations governing the special counsel require cause for firing; given the rectitude of Mueller's reputation, that's a non-starter. But Mr. Whitaker has a host of other options:

 He has already put forth, when acting as a pundit on CNN.com, the tactic of defunding the Mueller operation, crippling its ability to continue.

 He can constrict the latitude of inquiry. Whitaker wrote an op-ed in August 2017 that it was time for the Justice Department “to order Mueller to limit the scope of his investigation” and he must have earned the president's adoration by writing “The Trump Organization’s business dealings are plainly not within the scope of the investigation, nor should they be”.

 He can block any subpoenas the Mueller group wants to issue, including an attempt to force the president to answer questions — a back and forth tussle that has been waged for most of the year.

"I have the best people"

In any event, it is unlikely that Whitaker could be confirmed. He was the United States Attorney for the Southern District of Iowa from 2004 to 2009, but what appears to be his last job before turning himself into a media commentator was his membership on the advisory board of a Miami-based company named World Patent Marketing that charged inventors thousands of dollars to patent and promote their creations but in fact never delivered. Whitaker appeared in a couple of promotional videos for the company and, citing his background as a U.S. Attorney, he threatened at least one unhappy customer with "serious civil and criminal consequences".

The Federal Trade Commission shut the company down last year after calling it a fraudulent scheme that "collected almost $26 million by promising starry-eyed inventors it would turn their inventions into best sellers", said the publication. The FBI has initiated a criminal investigation of the company. The FTC obtained a judgment of just under $26 million to be returned to consumers, a scam and amount uncannily like the $25 million Donald Trump had to pay in restitution to defrauded students duped by his Trump "University".

The senators in a confirmation hearing would also undoubtedly like to hear Whitaker's views about the courts, which he thinks have too much power to strike down laws and should be inferior to the other two branches of government. Of all the "bad rulings" of the Supreme Court, Whitaker says he would start with 1803's Marboro v. Madison, the foundational bedrock ruling which vested the review of laws with the courts. It is revealing of Trump's disdain for the law that he would choose someone of Whitaker's destructive views to be at the top of the Justice Department.

That the president fired Sessions the moment the midterm elections were over at first indicated he would fire Mueller before Mueller could issue an imminently expected report. But now conjecture has settled on a different likely strategy.

Firing Mueller would create an uproar. Already there were impromptu protest demonstrations across the country the moment Sessions was cashiered. Moreover, the regulations governing the special counsel require cause for firing; given the rectitude of Mueller's reputation, that's a non-starter. But Mr. Whitaker has a host of other options:

 He has already put forth, when acting as a pundit on CNN.com, the tactic of defunding the Mueller operation, crippling its ability to continue.

 He can constrict the latitude of inquiry. Whitaker wrote an op-ed in August 2017 that it was time for the Justice Department “to order Mueller to limit the scope of his investigation” and he must have earned the president's adoration by writing “The Trump Organization’s business dealings are plainly not within the scope of the investigation, nor should they be”.

 He can block any subpoenas the Mueller group wants to issue, including an attempt to force the president to answer questions — a back and forth tussle that has been waged for most of the year.

 Whitaker now gets to be boss of the Southern District of New York which is bringing cases involving Trump's lawyer Michael Cohen, and which is reportedly looking into the alleged tax fraud committed by the Trump family in the massive transfer of wealth to son Donald, as revealed in a year-long investigation by The New York Times that ran to eight broadsheet-size pages in the print edition.

 Mueller is obliged to submit a report to the Justice Department. There is no legal requirement that it go any further, which means Whitaker can squash the report altogether, with taxpayers getting nothing for their money. Deprived of the evidence and testimony that the team has gathered over more than a year, that will make it difficult for congressional committees to flesh out their own investigations and assemble the facts required for an impeachment case, if that becomes warranted.

Pundits on the left, sitting in panels on cable shows, point out the pitfalls for the president and his hand-picked acting attorney general. Any action against the Mueller investigation runs theation, but is now acting as a "principal officer" reporting directly to the president. Lacking confirmation, "anything Mr. Whitaker does, or tries to do, in that position is invalid", they argue. “It defies one of the explicit checks and balances set out in the Constitution, a provision designed to protect us all against the centralization of government power".

Trump made the appointment under the 1998 Federal Vacancies Reform Act which allows the president to fill an important slot in the government for an interim period of up to 210 days. Two problems are drawing arguments from constitutional lawyers.

 Interim appointments are permitted only for vacancies brought about by death or resignation. Using the Act to fire someone and fill the position without confirmation is not permitted under the law. Was Sessions pressured to begin his letter to the president with, "At your request, I am submitting my resignation" to get around the law's restriction on firing? Even so, the argument is that resignation at the request of a superior is a firing, and that makes the appointment illegal.

 The second argument is that an interim appointee serving in a "principal officer" position — certainly the case for acting attorney general — must, according to the above-cited Appointments Clause of the Constitution, be confirmed by the Senate. The Legal Counsel office under President George W. Bush came up with the opinion that anyone serving only in an acting capacity is an "inferior officer" meant to step in immediately to keep the government working and therefore not subject to the delays of confirmation. (that office was infamous for serving up tortuous opinions to suit Bush and Cheney — Google "John Yoo" and "to

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