Matt Whitaker Has Authority to Share Proceedings of National Security Grand Jury Investigations with Trump

Just over a year ago, I worried that if and when Brian Benczkowski was confirmed as DOJ Criminal Division chief, it would probably provide Trump with a mole in the Mueller investigation. It took Benczkowski a long time, but after he was confirmed on July 11 of this year, he may have gotten visibility into parts of the Mueller investigation that relied on Criminal Division resources.

Whether or not Benczkowski shared anything he may have learned with Trump, we can be fairly certain that Matt Whitaker, whom Trump has just made Acting Attorney General, could share the information. Authority to do so stems from an OLC memo Jay Bybee wrote back in 2002.

Benczkowski could share information about wiretaps and proceedings from the grand jury directly with the president.

The cause for concern comes from an old Department of Justice interpretation of the PATRIOT Act. Along with expanding surveillance authorities, the PATRIOT Act permitted any government lawyer to share national security-related grand jury or wiretap information with any government official as long as it would help them perform their job better. The measure was passed in response to the September 11 attacks, with an eye to sharing counterterrorism information more broadly. But the authorization of such sharing explicitly extended to “clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of foreign power”—precisely the kind of nation-state spying at the heart of the Russian investigation.

July 22, 2002, memo from the Justice Department’s Office of Legal Counsel, written by Jay Bybee, the author of the infamous torture memos, held that, under the statute, the president could get grand jury information without the usual notice to the district court.

[snip]

Bybee’s memo relies on and reaffirms several earlier memos. It specifically approves two rationales for sharing grand jury information with the president that would be applicable to the Russian investigation. A 1997 memo imagined that the president might get grand jury information “in a case where the integrity or loyalty of a presidential appointee holding an important and sensitive post was implicated by the grand jury investigation.” And a 2000 memo imagined that the president might need to “obtain grand jury information relevant to the exercise of his pardon authority.”

The memo envisioned such authority to be delegable, but ultimately puts the AG in charge of deciding what information the President gets.

The 2002 memo generally supports the notion that the attorney general should decide whether the president needs to see a particular piece of information.

And it doesn’t require any paper trail for the sharing of such information.

And the memo cites an old opinion from the Iran-Contra scandal to argue that the president doesn’t have to memorialize any such delegations in writing. “Such a directive may be set forth in a formal executive order, in a less formal presidential memorandum, … or pursuant to an oral instruction from the President to the Attorney General or other appropriate officials.” So Trump could order someone to share information without leaving a paper trail.

Given that the entire purpose of this move seems to be about tampering with the Mueller inquiry, we should assume Whitaker will do as imagined, and let the President know what Mueller has been up to.

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96 replies
  1. pseudonymous in nc says:

    Fuckin’ Bybee, Judge Torture Memo. All of the shit precedents on executive power from the Bush years — and some shit from the Obama years — are going to be seized upon.

    Would it also be a de facto unsealing of anything that’s already on the docket? I assume so.

    • Eureka says:

      Would it also be a de facto unsealing of anything that’s already on the docket?

      That’s what I was wondering.  ???

  2. sponson says:

    Incredibly similar to what Nixon did with Kleindienst after the Saturday Night Massacre. Trump just did it all at once.

  3. Anon says:

    If this comes to trial could such notification be subject to discovery by say state AG’s? That is, could they learn if he had been informed or not as part of his preparation? This isn’t Attorney-Client privileged after all.

    • Eureka says:

      That’s a good question.

      To add, are there _any_ means by which such info sharing could have to be disclosed after the fact, like under the auspices of House investigation(s)?

    • Peterr says:

      Can you say “executive privilege”? I’m sure Trump can — and will.

      Not sure if it will stick, but that’s an obvious legal route for a president who does not want conversations with cabinet members to be FOIAed (or subpoenaed) into the public view.

  4. orionATL says:

    fight it, dems!

    this guy is gold for another trump misfire, even better than kavanaugh!

    he is a republican rightwing, maybe white supremacist, partisan (actually, rational crackpot) who has absolutely no business being in a job that demands fair, even-handed, professional behavior. doj has lots of activities that demand this professional behavior, not just the osc,

    1. check his political affiliations background over the last 20 or so yrs.

    2. check how he came to be the chief-of-staff for sessions.

    3. check his public statements just before and since trump was elected. he is said to have cadged for the job.

    4. make the argument that trump is looking for an easy get-out-of-jail card for his collaboration with russia- it’s time now to bring out the evidence that the trump-russia collusion is solidly based in what happened.

  5. Ed Smiley says:

    The another bitter fruit of the poison tree, the Patriot Act. There are some provisions that make sense, and many that should not be permitted in a free society–or should be extensively modified.

  6. Thomas says:

    EW

    You certainly know how to piece together some wicked legal history.

    For each of the past reasons given for sharing the Grand Jury information, do the past instances of sharing match the purposes of Trump today? And if not, then what? Any power is permitted for any unrelated purpose, now, if it was used in the past for any reason?

    Or, say, a government official tasked with preventing a terrorist attack can be given access to national security Grand Jury information, and not a president trying to find out what evidence the Grand Jury has seen with regard to his own criminal investigation?

    If this is happening, then Trump is actively overthrowing the rule of law today.

    Only my opinion, but I wonder what lawyers would say? I’m no lawyer.

    • Avattoir says:

      IAAL, fwiw.

      This is all a bit gray, even where it’s not dark.

      I’m less concerned about parts of the OSC & FBI investigations that are already pretty much in the can. Our laws & norms stress DoJ secrecy, but are largely inconsistent with the trend of the last 3 decades, in Europe & also in the former Brit Empire. The European Accord starting back in the late 1980s required all member nations pass national Human Rights laws consistent with what’s known as the European Human Rights Act. A big part of that project brought in a tightly codified and enforced “disclosure” regime, including a judge-supervised disclosure code. As I understand, it was championed by the original head of the International Criminal Court in the Hague, who I think may have been a Canadian court judge before that role, and in any event led an initiative to bring in something like the relatively new (early 1980s) Canadian Charter of Rights & Freedoms.

      ( We’re not part of the ICC: every time we got anywhere close to getting in, another Republican POTUS was elected. Cheney, mini-Cheney Scooter Libby and & John Bolton in particular were much heard in attacking the ICC as an assault on U.S. sovereignty, and provided endless material for Fox News “contributors”.)

      In the course of that initiative, the Euro HR Act ended up more like a blend of the English statute+judge-made common law regime, and post-Napoleonic Code judge-run detailed rules-heavy approach. What they ended up with is something even more disclosure-oriented, favoring the accused in terms of more as opposed to less access to government files, together with something we actually have had in the U.S. for a long time but which unfortunately many U.S. judges, especially but not exclusively in the state courts, tend to honor mostly in the breach: an over-riding obligation on government prosecution to disclose & release to anyone charged with a crime, any and all arguably court-admissible evidence that might actually be used to exonerate the person charged. So now all Euro members, the UK, Canada, Aus-Zealand & a not-inconsiderable number of other nation-states actually enforces a HIGHER standard – often notably, and at a more practical and meaningful level – of what most of us take the most pride in for our own regime – the presumption of innocence – than we do in virtually every U.S court context.

      So here I draw a line —— <– line

      between post-charging disclosure and PRE-charge investigative intelligence.

      And THAT’s where our supposedly Rule of Law -oriented system is now in real trouble, with this grabby fascist president.

      And not just for so long as Toad or some other authoritarian R is in the White House. This is classic slippery slope / horses already out of the barn territory. We really don’t have the constitutional framework needed to jam this particular demon genie back into the bottle. Once this demon’s out, tens of thousands of would be ratfuckers are going to aim and guide it down the same well-worn path as the right to bear arms.

      • Thomas says:

        I am gratified for such a fulsome response! Thank you!

        My observation is that the “ticking time bomb” scenario is the rationale, the basis for much of the precedent cited by EW. Presently the “ticking time bomb” that interests Trump seems to be the imminent indictment of persons who may be his co-conspirators in crimes to subvert the election of 2016.

        The “national security interest” is not his concern, in this case, but the concern of everyone else in the country.

        What might he do with that information? From what I have seen so far (re: Nunes), Whitaker/Trump will seek to find something in that information that can be somehow skewed or misrepresented, and then use that to impugn the investigation. Trump’s interest is to selectively leak classified information in order to misrepresent the investigation.

        He has done this, put Whitaker in place for this purpose, on the very same day that he has publicly threatened to abuse his authority by “investigating House Democrats” for “leaking classified information.” This suggests that he intends not only to abuse his authority to undermine the rule of law, but also to abuse his authority to frame his political opponents for the kinds of crimes he intends to commit.

        • Avattoir says:

          Again, fwiw: Whitaker isn’t very smart. And AFAIK he’s never proved he can prosecute his way out of a cat’s litter box. His “big” case with the DoJ in Iowa as an assistant USa back in Dubya Days was a pathetic fiasco of politicized mess that ended not just in acquittal but in the jury advising the judge supervising the trial that they were unanimously outraged at the gall of the prosecution, wanting to know whether that judge or someone else could be contacted to sanction Whitaker. He’s basically indistinguishable from Kobach.

          Just so we all know, he’s too stupid to know how incompetent he is, which I’m inclined to think will increase the odds of him stepping in it.

  7. Rick Ryan says:

    OT perhaps: saw good ol Jeffrey Yohai got arrested on new charges today. There seems to be some connection to Mueller – namely, that he violated an earlier plea deal that included cooperation with feds of some sort, and that he apparently was trying to use his ties to the Mueller probe to advance some fraud schemes – not sure if it’s just a coincidence that this dropped the day Sessions was booted (honestly this would be my guess) or if this is intended as some sort of warning shot on the part of federal investigators.

  8. Hobbs says:

    Whitaker has this authority only if he has the authority to be acting AG without a prior position requiring a senate confirmation, is my understanding.

  9. Kevin Finnerty says:

    There is obviously a lot of uncertainty right now, but there are two questions in particular I hope reporters are able to answer. First, when exactly did Sessions’ resignation become effective? Was it Wednesday morning, or close of business? Second, what do the career ethics attorneys say about Whitaker’s ability to manage the probe? Does he simply ignore or bypass them?

    • earlofhuntingdon says:

      Whitaker campaigned for this job and this outcome.  It’s his ticket to the big time.  He will have the same reluctance to share information with the Don as the Don would have in using it.

      Govt ethics lawyers do not constrain the gods.  The threat to Trump from exposure of his business dealings and their Russian connections is existential.  This is the fight Trump has been expecting.  It’s a test of his manhood.  His fight will be unconstrained.

      That should worry even the GOP Senate leadership, which will have to do more than snarl softly as the big dog snaps its chains in an attempt to free himself from this meddlesome priest.

      • Trip says:

        He will have the same reluctance to share information with the Don as the Don would have in using it.

        Why are you so sure about this @earl? The guy has been involved in the same type of cons as Trump. He bullied people with threats of lawsuits if they complained about the con. He accepted a position he is wholly unqualified for. He is a Trump, if not in name.

  10. Frank Probst says:

    I’m curious about how fast things can truly happen right now.  Whitaker may legally have access to this information immediately, but how quickly can he get to it in practical terms?  Mueller is going to know every possible way of foot-dragging any request that Whitaker demands.  He can even mount a legal challenge if he’s fired without cause.  And there have probably been multiple “dead man switches” in place since shortly after the investigation began.  Whitaker is obviously bad news for the Mueller investigation, but Mueller has been planning for this since he was appointed.  I suspect a lot of things will happen within the next two months.

  11. Tracy says:

    Scary times. Thanks, Marcy!! I’ve had a busy time and not been able to post but your reporting is stellar as always. EW has by far the most insightful info re: Russia probe, always.

    This is a public panic moment. Sat night massacre in different form.

    I look forward to seeing how many people turn out for the 900+ demos tonight at 5 pm and how much the public legitimately sees this as a threat to our democracy. Yet another one, but the most flagrant power abuse yet.

    We must have the hope that since this has been on Mueller’s radar for months that there is an alternate contingency plan that is already in play (sealed indictments, etc) or two or three. I have faith in that, though it’s nerve wracking to have to wait and see.

    That Rosenstein canceled alternate plans to stay in D.C. may be important. Also, the Sat night massacre did not shut down the Nixon investigation, but sure made him appear guilty as hell. That part is the same now.

    By the way, our media always gets it wrong: this is the Trump investigation, not the Russia investigation. If they’d been calling it what it is the whole time (like, it’s not “meddling,” it’s an attack – it’s not “collusion,” it’s conspiracy), then the American people would have proper perspective on it and what a abusive power play this firing is.

    • CitizenCrone says:

      Tracy–

      this is the Trump investigation, not the Russia investigation…it’s not “meddling,” it’s an attack – it’s not “collusion,” it’s conspiracy…

      Agreed!  Like all the police shootings of unarmed black “suspects” might be called extra-judicial killings.

    • oldoilfieldhand says:

      By the way, our media always gets it wrong:…Upton Sinclair springs to mind.

      “It is difficult to get a man to understand something, when his salary depends on his not understanding it.”

  12. Trip says:

    Are there people in the DOJ who see this for what it is, blatant obstruction of justice, and who will not lay out the full details of the investigation to an installed sycophant? Clearly, this is a maneuver to bypass normal procedure of confirmation. Or are we at a point where the upper levels of the DOJ are all sycophants for Trump, rather than civil servants for the people? These people are going to have to make tough decisions about following laws which enable the complete disregard for other laws holding people accountable for criminal acts. Rock/hardplace. But they have to decide. “Just following orders” has a terrible history as an excuse.

    • Tracy says:

      We are about to see how much ethical spine people in positions that matter have.

      Yeah, Sessions is lacking that (to your comment below).

  13. Trip says:

    If the racist little weasel elf gave 2 shits about the country, he would hold a presser and tell everyone the truth: that he was fired. But he’s more concerned about his political survival, because he’s a selfish POS, and he helped Trump orchestrate this. He’s rich enough and old enough to go retire happily, but I suppose he feels he hasn’t done enough damage yet. Remember this when he runs for the senate again.

  14. K says:

    Who’s studying the Nixon and Spiro Agnew playbook? Miller, Stone? How could anyone construe divulging Mueller report with emergency national security disclosures not get in “obstruction” trouble?

  15. Manqueman says:

    Till I see proof to the contrary, I believe Mueller’s the least trouble for Trump. An engaged Dem House, the SDNY USA and the NY AG can all nail him personally as well as the three kids he cares about. Mueller can get close, maybe indict Junior Mint but I think the others can do worse. And all the House has to accomplish at the least is to keep the Dem base engaged and convince swing voters that a vote for Trump in 2020 is not an option. In the latter case, Trump becoming ever more unhinged will help. I hope.

  16. Trip says:

    I don’t want to hear any more about Acosta. If the press can’t unite in a general strike/walk out, instead of subjecting themselves to absolute bullshit propaganda, an altered video from Sanders and outright nonsense from Trump, then you all deserve the “Fake News” moniker. Because by going back and reporting lies, it is a function of fake news. You are contributing to the downfall of everything. Stop feeling sorry for yourselves and do the right thing rather than doing the thing for ratings.

    • Tracy says:

      I share your frustration with the press’ slavish reporting on all things Trump, 24-7. Walk out is a good idea. Press reports are oxygen for Trump; if everyone just ignored him, he’d effectively “go away.” But our obsession w/ the imperial presidency + a reality TV “star” installed in the post, who’s ALWAYS played the media, has made this the perfect storm.

      • Trip says:

        It’s only a matter of time before they all get their credentials pulled and then all you have is Fox News and maybe Jonathon Swan. Let the stenographers have the harsh light on them, so we can see them clearly.

        **editing: What value was there in that clusterfuck of a news conference? The real news was happening behind that noise with the firing of Sessions.

        • Tracy says:

          Gosh, I missed all of that, thankfully! It is a shit show on TV these days – just following whatever shiny object Trump holds up. In this case, so obvious it was the Acosta story – important of course, but masking the massive Obstruction of Justice, and the ConFraudUs behind that, of it all.

          And press continues to by his playbook. To her credit, Maddow tries to never air Trump’s “words” (rallies, etc). I’m on your page, Trip!!

        • Eureka says:

          Trip, did you see this thread-I think Marcy retweeted it, and it goes with what you are saying from a reporter targeted in China, with good notes on the tactics of authoritarian regimes vs the press:

           
          Melissa Chan: “BY THE WAY WHITE HOUSE REPORTERS: Something foreign correspondents in places like Beijing and Moscow have learned: Hang together, or else you’ll hang separately. My peers supported me when I got expelled from China. That stuff matters.”
          https://twitter.com/melissakchan/status/1060541886174294016

      • Citizen of NY says:

        This is a typical Trump move: distract and change the subject from a losing election for the GOP, another mass shooting, firing Sessions and replacing him with a compliant stooge, in apparent violation of constitutional standards, while blatantly attempting to concel his crimes.  You know, a typical day at the office for Trump. He’s really really good at changing the subject with his outrageous behaviour, from what’s really important,  to these sorts of side issues.

    • earlofhuntingdon says:

      Indeed.  By reporting Trump’s words with inadequate context and skepticism, the press is creating the fake news that Trump wants them to.  His purpose is explicitly to discredit journalism in order to reduce its potential to harm to him.

      Trump’s equivocal and violent press conference achieved its end: distraction from an electoral loss, and from his renewed assault on the law enforcement agency charged with investigating his probable crimes.

      Journalism’s obligation is to cover the unprecedented investigations of a sitting president.  It is not to cover the Barnum & Bailey elephant dung that Trump slings like bread thrown in the Circus Maximus.  When they do, they only cover themselves and their readers in it.

      • Allison Holland says:

        you are so right

        but the press will bend like the senate and then the banks will begin to destroy what is left of the middle class and education will grind to a halt excepting those institutions who dyseducate maybe a word of my own making. it means to destroy the concept of learning and how to analyze and think in school. thank you science teachers in texas for giving rise to the need of different words for dystopic concepts of all things once held in prideful honor. i am not sure i dont believe that desantis won in districts clinton won. bush didnt win. that should have fixed things but the power of the party was too great for small time democratic corrections. i think once the republicans realized they could do this it was the beginning of our end. its no longer simple voter suppression. its complex suppression. beto lost because texans are purposely uneducated. not because of hate.  hateful generations can die out. but dyseducation is a new way of life. the media and the press are our only hope. and decency. i am hoping for decency. and honor to be returned to us. but cornyn is my senator as is cruz. and they never tell the truth. never. and its just not much of a big deal here. its never on the news how much they lie. its just trump and he is allowed to lie. i dont understand that. but it is our life now. the electric shroud has descended and now envelopes us worse than an iron curtain because this we cant see. we are ghosted by our government. have a good day !

    • earlofhuntingdon says:

      For some reason, Matthew Whitaker is a made man in the GOP.  Presumably, it’s because he’s a more than willing enforcer of orthodoxy for whomever wields the most power.  Matt Gaetz with a brain and a gym membership.

      Whitaker’s scholarship appears to have been casual, his non-government employment desultory and inconsequential.  His bids for elective office were premature and went nowhere.

      He was unqualified for his appointment by BushCheney as a USA for the Southern District of Iowa.  That was typical of an administration that sought out and fostered young, inexperienced – and given the work, incompetent – but vehmently loyal acolytes.

      Whitaker was the principal, if not only, employee of the supposed foundation he “worked” for most recently.  The work was digging up dirt on Hillary for a foundation “devoted” to “legal and ethical issues related to politics”.  The snark is arrogant and palpable.

      All in, Matthew Whitaker appears to be a disposable, garden variety example of wingnut welfare.  He must think that his ship has just come in.  Like Brett Kavanaugh, he will do whatever is required, but more crudely.

  17. Tracy says:

    Adding to my note above: I do worry about the timings of things, however: 1) the Miller case (i.e. it took the OSC a long time to challenge him, so now what happens if this case goes to Supreme Court?); 2) why Manafort is (reportedly, via Ghouliani, so not assured to be true!) still in that damned JDA, and “appearing” not to have given up the president yet in the many hours he’s been w/ the OSC (i.e. how long will that take to come about, if it does?); 3) the long leash Trump has on this take-home-test, vs. subpoena to testify; he’s been able to drag out that saga to no conclusion to date.

    Then, there is 4) also that the American citizen indictments have taken up till now to materialize (from Stone right on down), and I understand that in a normal universe, doing a thorough, proper investigation takes lots of time. Just a remark on: how does this square w/ reality now?

  18. Trip says:

    Can one of you legal geniuses fact check this? Does this give the DOJ an out in not following orders or requests for briefs by Whitaker?

    AG is ‘not qualified under the law’

    Napolitano then explained that there are only three ways someone can become an acting AG: If you’re already serving as the deputy AG, if you have a job at the DOJ that requires you to be confirmed by the Senate, and if you were appointed while the Senate was in recess. Whitaker, Napolitano explained, does not meet any of those criteria…“So he’s really not the attorney general?” a confused Ainsley Earhardt asked. “That’s correct,” Napolitano confirmed. “Which is why he did not take an oath of office.”
    https://www.rawstory.com/2018/11/fox-friends-hosts-short-circuit-legal-analyst-says-trumps-new-ag-not-qualified-law/

    • viget says:

      Unfortunately, this is not correct.

      From 5 USC section 3345 — Acting officer:

      “a) If an officer of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office—

      (1) the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346;

      (2) notwithstanding paragraph (1), the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity subject to the time limitations of section 3346; or

      (3) notwithstanding paragraph (1), the President (and only the President) may direct an officer or employee of such Executive agency to perform the functions and duties of the vacant office temporarily in an acting capacity, subject to the time limitations of section 3346, if—

      (A) during the 365-day period preceding the date of death, resignation, or beginning of inability to serve of the applicable officer, the officer or employee served in a position in such agency for not less than 90 days; and

      (B) the rate of pay for the position described under subparagraph (A) is equal to or greater than the minimum rate of pay payable for a position at GS–15 of the General Schedule

      Subsection (a)(3) is the relevant authority here.  An acting officer (not necessarily confirmed by the Senate) may be named by the President for a 210 day term as long as a) He/she has served in the relevant department for at least 90 days out of the 365 days prior to the officer in question resigning  AND b)The employee/officer so named is paid at least the equivalent of  a GS-15, which presumably Matt Whitaker was.

      So yeah, we’re stuck with him.  Interesting tidbit I learned from this article is that none other than Justice Clarence Thomas thinks that the Vacancies act is unconstitutional for clearly principal officers such as the Attorney General.   He believes that the Appointments Clause of Article II is the controlling authority and that such positions may only be filled by presidential nomination and Senate advice and consent.  Would be an interesting challenge, the question is whether the 4 other liberal justices would agree.  And of course, that Thomas “remembers” his previously principled stand.

      [Comment format edited to improve readability. FYI, long comments with multiple links are often hung up in moderation./~Rayne]

    • Avattoir says:

      Absolutely sure that Mueller and team are up on all this. I’m anticipating Whitaker’s role here is to act pretty much like in an image I read somewhere over the last month: Jurassic Park raptors hurling themselves against electrified fences, testing for weakness, exploring ways to get out and get past.

      If I had to guess, I’d go with Whitaker reporting to Toad House that he’s not getting cooperation from the OSC in general and Mueller in particular, and Toad then testing out his take on that on his rally tour and onto Fox & Friends, while at some point taking advantage of Republican control of the Senate to replace  Whitaker with someone less constitutionally compromised – Christie looks a likely choice – to administer the coup de grace.

    • Trip says:

      Thanks @Avattoir, @viget

      Interesting tidbits about Gov Christie Creme:

      Chris Christie’s settlement deals as US Attorney reportedly helped spur change in DOJ rules

      In one of the deals, federal prosecutors in New Jersey agreed they wouldn’t charge Bristol-Myers Squibb with securities fraud in exchange for the company’s $5 million donation to Christie’s law-school alma mater, Seton Hall. Christie says the idea didn’t come from him.
      In another deal, a consulting firm run by former Attorney General John Ashcroft was hired to oversee corporate compliance at a company suspected of paying consulting fees to surgeons who used its products. The fees to be paid to Ashcroft’s company were estimated to range from $28 million to $52 million~ABA JOURNAL February 11, 2014.

      Exxon Settles $9 Billion Pollution Case in New Jersey for Far Less

      …with a State Superior Court judge believed to be close to a decision on damages, the Christie administration twice petitioned the court to hold off on a ruling because settlement talks were underway. Then, last Friday, the state told the judge that the case had been resolved…A long-fought legal battle to recover $8.9 billion in damages from Exxon Mobil Corporation for the contamination and loss of use of more than 1,500 acres of wetlands, marshes, meadows and waters in northern New Jersey has been quietly settled by the state for around $250 million.~NYT Feb. 27, 2015

      Trump Casinos’ Tax Debt Was $30 Million. Then Christie Took Office.

      the year after Governor Christie, a Republican, took office, the tone of the litigation shifted. The state entertained settlement offers. And in December 2011, after six years in court, the state agreed to accept just $5 million, roughly 17 cents on the dollar of what auditors said the casinos owed.~NYT Aug. 16, 2016

      And this article links to now nonexistent Marcy Wheeler post:
      NJ-Gov: Christie’s Mole In NJ US Attorney’s Office Working On His Political Behalf

      Chris Christie, the former US Attorney and GOP candidate for Governor in New Jersey, explaining that he raised money for George W. Bush (over $350,000, to be exact) and that he was appointed USA in New Jersey “because, in part, I had a relationship with the President of the United States.”~Shadowproof Oct 20, 2009

      • Trip says:

        I meant to put that last one in context, Christie’s only experience was raising campaign cash for Bush. That’s why he was appointed NJ AG to begin with.

  19. earlofhuntingdon says:

    CNN is doing its viewers no favors by having former Deputy AG George Terwilliger on as an “analyst”.  Like Whitaker, Terwilliger had a short, desultory legal career as an AUSA before being named by Ronald Reagan as a USA for Vermont.  After a short tenure there, George H.W. Bush leapfrogged him into the Deputy AG’s slot, the DoJ’s number 2 slot.

    The DoJ was then in a tailspin, and Independent Counsel Lawrence Lawrence was working flat out to investigate Reagan and Bush and others over their involvement in the Iran-Contra scandal.  Bush and the CIA went to the mattresses: under siege, they refused to cooperate with Walsh and got away with it.

    Terwilliger’s involvement in that alone makes his commentary about the appointment of Whitaker as Acting AG suspect.  It would have been easy for CNN to do better.  It chose not to.

    Trump’s dismissal of Jeff Sessions was a long time coming.  The replacement of Sessions was not an emergency.  No exigent circumstances exist that would justify appointing a non-Senate approved DoJ employee with so little relevant experience to command the DoJ.  There are many other lawyers in this administration who hold Senate-approved jobs and who would be more qualified to be or act as Attorney General.

    CEOs with the luxury of choice do not appoint unqualified senior executives, who lack appropriate experience, to an agency when they want it to succeed.  They appoint them when they do not want it to succeed.  They appoint them to discredit the agency and to frustrate its purposes.

    Trump’s choice of Whitaker is careful and planned.  It is entirely self-serving, and designed to obstruct investigations into Donald Trump personally.  It is not just “out of the ordinary.”  It is an impeachable offense because of that obstructive intent.

  20. earlofhuntingdon says:

    Here’s hoping Justice Ginsburg recovers quickly.  Trump and the FedSoc will already have started their death watch.

  21. Desider says:

    So even Fox’s Napolitano is confirming that Whitaker can’t be acting AG according to the Federal Vacancies Act (and 2011 streamlining act – https://www.govtrack.us/congress/bills/112/s679)
    Which may buy some space. Also, the FVA limits reassigning roles already reassigned internally.
    [National Security Advisor unfortunately is left out of that statute, thus Bolton’s appointment]
    Also, term of appt is limited to 210 days unless an election year appointment, when it’s 300 days.
    But Whitaker would be deadly if even for 60 days.

  22. Rusharuse says:

    Mueller sat on his hands for two months while a two-bit crim ran around bullshitting and lying his way to a senate majority. Mueller is either too old and stupid for his role . . or a true republican. He is certainly no patriot and like everyone else participating in this national disgrace can just go and get fucked.

  23. jonf says:

    What stops Whitaker from an early morning raid and taking all the material and firing all of them?  Like tomorrow morning, end of investigation?

    • earlofhuntingdon says:

      Nothing but political consequences, which always persuade this White House to show restraint.

      Some of those actions might find their way into a Mueller complaint or an impeachment charge, but that would not have much effect for two or more years.

    • Thomas says:

      When I heard of Whitaker’s appointment, I suspected as much. To read the opinion of constitutional lawyers and learn that I was right is most gratifying to my ego, and gives me hope that Mr. Whitaker will NOT be allowed to compound the illegality of his appointment with abuses of power and attacks on the rule of law.

      Thank you Trip.

  24. Trent says:

    OT – Holy shit!  Lucy McBath just won GA 6th!!!  That’s the district that unleashed the odious Newt Gingrich and Tom Price plagues upon the House.

    • DrFunguy says:

      Pierce said: “In November of 2012, at a gas station in Florida, a 45-year-old white man named Michael Dunn objected to the volume of the music being played by some African-American teenagers in the car parked next to his. Dunn registered his displeasure by emptying 12 shots into the car and its occupants. One of them, a 19-year old named Jordan Davis, died at the scene. In November of 2018, Michael Dunn is serving a life sentence for murder and Jordan Davis’s mother, Lucy McBath, is going to the United States House of Representatives as the newly elected member of Congress from the Sixth Congressional District of the state of Georgia.”

      Maybe there is a god!

      • cat herder says:

        By the way, if Esquire at some point in the future decides that whole putting Charlie behind a fucking paywall thing was a mistake, somebody please comment here so I’ll know about it. It’s a god damned shame to lose somebody like him at a time like this.

  25. pseudonymous in nc says:

    NLRB v. Canning was brought by someone affected by a NRLB decision. The suit over control over the CFPB was brought by the deputy who Cordray lined up before his resignation.

    Who has standing to argue that Whitaker’s appointment is unconstitutional under Article II? Nobody right now, I guess. [Though EW just tweeted that House Dems might be making a claim in their document preservation requests.] It could all get a bit Escher.

    • earlofhuntingdon says:

      Everything comes as a surprise to the rocket scientists that Trump employs as his attorneys.

    • Trip says:

      Apologies if this was addressed already:

      Cambridge Analytica’s Use of Facebook Data Broke British Law, Watchdog Finds

      …The finding also adds to legal and political scrutiny of Mr. Banks, who was the single largest donor to the Brexit campaign. His dealings with the Russian ambassador ahead of the referendum have separately raised questions about whether the Kremlin sought to reward important backers of Britain’s exit from the European Union, and prompted British election officials last week to ask for a police investigation. In Washington, the special prosecutor, Robert S. Mueller III, has obtained records of Mr. Banks’s communications with Russian diplomats. https://www.nytimes.com/2018/11/06/technology/cambridge-analytica-arron-banks.html

      Previously: Banks met with Trump in the tower.

      On Nov. 12, 2016, Mr. Banks met President-elect Trump in Trump Tower. Upon his return to London, Mr. Banks had another lunch with the Russian ambassador where they discussed the Trump visit.

      I’m guessing Mueller might be looking for earlier contact with Banks at the tower, too. Or the police investigation in the UK is a result of info already obtained by Mueller.

    • Eureka says:

      The Doomsday Culters need to gather and go colonize one of their private islands.  I wonder if there’s a weight limit on free holiday shipping.

  26. Thomas says:

    Upon further reflection, the preservation of all information related to the Mueller investigation certainly has it’s basis in a directive by former president Obama. It was publicly reported that Obama ordered that the information about Russian interference and possible conspiracy by the Trump campaign was to be “seeded throughout the federal government.”

    If that directive was implemented throughout all of the investigative efforts since the directive was made, then Mueller’s investigation may have taken steps to ensure that the information cannot be destroyed or concealed by Trump. The intent of Obama’s directive was meant to preserve the country’s national security in the event that the evidence leads to proof that Trump is indeed a foreign agent. Mueller may have a secret authority to do just that.

    Senators in both parties have publicly signaled, in public statements that they support such a thing. Minority Leader Pelosi and Ranking members of the pertinent committees have made statements echoing this same idea. They are due to assume power as the leaders of the majority in the House in less than 60 days.

    Trump is engaged in a fool’s errand if he believes he can smear the investigation and use raw power to destroy it and make it disappear. Whitaker’s legitimacy to do anything as AAG is not a foregone conclusion. If Whitaker blindly believes that he can assist the president in undermining the rule of law, and framing the president’s political opponents, then he must be delusional.

    This is all my own opinion, but if delusional thinking and incompetence are the main stumbling blocks in this farcical attempt to morph the presidency into an organized crime apparatus, then they will fail.

  27. Jenny says:

    The song from Fiddler on the Roof is in my head about “Tradition, tradition, tradition…”

    I have just changed the words to “Corruption, corruption, corruption.”  Or “Obstruction, obstruction, obstruction.”  This fits beautifully with this maniacal administration.

    Obstruction of justice and an unconstitutional appointment for Attorney General by the Groper in Chief, we should not be surprised.  This man doesn’t care about the Constitution, laws being obeyed and transparency in government.  All that went out the window when he was elected.  Gone is integrity, honesty and the meaning of bipartisanship.

    His deep seated insecurities drives him to win, succeed, control, obtain and maintain and he doesn’t let laws or ethics interfere with attaining his objective.  He lacks sense of the self, therefore no love, respect, empathy, gratitude, compassion, forgiveness or concern for others.  An angry person fighting internally (always looking for a fight), therefore fighting externally.  This man has no interest in justice unless it serves his purposes.

    Besides citizens taking to the streets, who will speak up against the many violations we are experiencing?  Who is going to stop Whittaker from being AG?  Who in the Republican party?  Who will stop Trump from shredding the Constitution?

    This is a test to see if our Constitution and institutions will hold up.

  28. D.K. Wilson says:

    But Whitaker is illegally in his present position. Mueller can actually ignore anything he asks of him.

  29. Thomas says:

    I’ve been thinking about the Supreme Court.
    Kavanaugh might be the Trump lapdog, and I wouldn’t doubt that Gorsuch is.
    I’m uncertain about Alito, BUT Chief Justice Roberts and Clarence Thomas are old school conservatives, cut from the same cloth as myriad Republicans now voicing their disgust with Trump.
    I doubt they would rubber stamp abuses of power by Trump or certify Trump’s attacks on the rule of law.
    I could be wrong, I could be…right. :^D

    • Eureka says:

      Have you seen what Ginni Thomas, wife of Clarence, has been up to?

       

      The Mary & James role has been taken already this sequel by Kellyanne & George;  I’m not informed of the separation of church and state in the Thomas abode.

       
      Ginni Thomas shares a Soros conspiracy meme, creates more of a mess for Clarence.
       
      Ginni Thomas shares posts criticizing Parkland students | TheHill
      one example from this one:

      Thomas shared a post Monday that included a pile of shoes from people killed during the Holocaust. The post was directed at students who walked out their classrooms last month to protest gun violence.

      “To all the kids that walked out of school to protest guns. These are the shoes of Jews that gave up their firearms to Hitler. They were led into gas chambers, murdered and buried in mass graves. Pick up a history book and you’ll realize what happens when u give up freedoms and why we have them,” the post said.

       
      Clarence Thomas’ wife shares fake news posts about blacks leaving Democratic party
       

      Separate article, from slate (don’t want to put too many links):

       
      Report: Clarence Thomas’ Wife Hired an Assistant Who Wrote “I Hate Blacks”
       

      Also, WaPo -spreading those “memes” (sic) again:

       
      How a six-year-old photo of a bleeding policeman is being used to stoke fears about the migrant caravan

      • Eureka says:

        From the first link I posted re: Soros conspiracy (dateline of May 7, 2018): in the original, this text has two embedded links to Ginni Thomas’ facebook posts, which I have stripped:

         

        Ginni has long been on the far-right fringe of the conservative movement, but in recent months, she’s escalated her rhetoric against perceived political enemies. She has alleged that President Barack Obama “rigged” (unsuccessfully) the 2016 election for Hillary Clinton and that Robert Mueller is “going to fabricate whatever fake scandals [are] needed to take down Trump.” But by sharing this “coup” language, Thomas has taken an aggressive new stance—one that yet again creates thorny ethical issues for her husband.

      • Tom says:

        Speaking of the migrant caravan, if Trump really thinks this “invasion” is such a threat to the United States, why hasn’t he invoked Article 5 of the NATO Treaty; i.e., an attack upon one member of the alliance is an attack upon them all?   Rhetorical question, of course.

  30. Tracy says:

    Hey @Thomas, to your last point, I hate to be a downer, but isn’t the entire GOP playbook at this stage: win by any means necessary, b/c the more and more they become the minority, the more they cannot win legitimately. I’m thinking of how power went down in the Bush v Gore decision… it’s really, really a travesty that Kavanaugh is on that court. Infuriating, actually!!

    And Leonard Leo @Trip – these people care about NOTHING but getting into and maintaining power. It is the defining quality of the GOP; they don’t have policy positions, they have a power position.

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