Did Emmet Flood Mean to Create a Legal Morass, or Is He Off His Game?

As I’ve often said, Trump departed from his usual habit by hiring Emmet Flood, someone who is eminently qualified to help the President (or, as he did with Cheney, Vice President) stave off legal jeopardy from a Special Counsel or Congress. Which is why I’m trying to figure out whether the legal morass Trump created — presumably on Flood’s advice, given that Flood is serving as both the Mueller investigation White House Counsel lead and, until Pat Cipollone gets fully cleared, White House Counsel generally — by forcing Jeff Sessions’ resignation and replacing him with Matt Whitaker.

It’s not clear when Sessions’ authority ended

Start with the fact that it’s not clear when Jeff Sessions stopped acting as Attorney General. As numerous people have noted, he didn’t date the copy of his resignation letter that got released publicly.

He left DOJ in ceremonial fashion just after 5 PM on Wednesday night, which would suggest he may have remained AG until that time. If that’s right, then anything that Mueller and Rosenstein did that day would still operate under the older authority.

Indeed, DOJ issued an order under Sessions’ authority, imposing new limits on consent decrees used to reign in abusive local police departments, yesterday evening, a full day after he departed. He initialed it (dated 11/7/18), but the metadata on it shows the document wasn’t created until almost 5PM on Wednesday and was modified over a full day after that. (h/t zedster)

So he was at least still AG sometime after 4:53PM on Wednesday — and possibly well after that — or this consent decree policy is void.

Whitaker’s appointment may not be legal

Then there are the proliferating number of people — most prominently Neal Katyal and George Conway but also including John Yoo and Jed Sugarman — who believe his appointment is unconstituional.

There are two bases on which this might be true. First, the forced resignation of Jeff Sessions may in fact be a legal firing, something the House Judiciary Democrats are arguing with increasing stridency, most recently in a letter to Bob Goodlatte asking that he hold an emergency hearing on Sessions’ ouster, support legislation protecting Mueller, and join in requests for information about the ouster from the White House and DOJ. If Sessions was fired, there’s little question that Trump can only replace him with someone who is Senate confirmed.

But Katyal, Conway, and others argue that because the AG is a principal officer, whoever serves in that position must be Senate confirmed. Significantly, the Katyal/Conway argument begins by throwing what Steven Calabresi has said back at conservatives.

What now seems an eternity ago, the conservative law professor Steven Calabresi published an op-ed in The Wall Street Journal in May arguing that Robert Mueller’s appointment as special counsel was unconstitutional. His article got a lot of attention, and it wasn’t long before President Trump picked up the argument, tweeting that “the Appointment of the Special Counsel is totally UNCONSTITUTIONAL!”

Professor Calabresi’s article was based on the Appointments Clause of the Constitution, Article II, Section 2, Clause 2. Under that provision, so-called principal officers of the United States must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.

He argued that Mr. Mueller was a principal officer because he is exercising significant law enforcement authority and that since he has not been confirmed by the Senate, his appointment was unconstitutional. As one of us argued at the time, he was wrong. What makes an officer a principal officer is that he or she reports only to the president.

This is probably why people like Yoo are joining in this argument — because if Whitaker’s appointment is legal, than a whole slew of other appointments of the kind that conservatives hate would also be legal.

Whitaker may be disabled with conflicts

Then there are Whitaker’s conflicts, which are threefold. Whitaker:

  • Repeatedly claimed that the Mueller probe was out of control, in spite of the fact he had no real information to base that on
  • Judged that Trump had neither “colluded” nor committed obstruction
  • Not only undermined the investigation, but suggested the underlying conduct — including meeting with Russians to obtain dirt on Hillary Clinton at the June 9 meeting — was totally cool
  • Served as Sam Clovis’ campaign manager in 2014; Clovis was a key player in Trump’s efforts to cozy up to the Russians in 2016 and was one of the earliest known witnesses to testify before the grand jury

CNN captures many of these statements here.

The Clovis one may be the most important. 28 CFR 45.2 requires ethics exemption or recusal if a person has a political relationship with the subject of an investigation.

[N]o employee shall participate in a criminal investigation or prosecution if he has a personal or political relationship with:

(1) Any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution; or

Defining “political relationship” to include service as a principal advisor to a candidate.

Political relationship means a close identification with an elected official, a candidate (whether or not successful) for elective, public office, a political party, or a campaign organization, arising from service as a principal adviser thereto or a principal official thereof;

And, as Mueller noted in their response to Andrew Miller’s appeal, recusal would amount to a “disability” that would put the DAG back in charge.

Finally, interpreting “disability” under Section 508 to include recusal makes logical and practical sense. Section 528 requires the Attorney General to recuse himself when he has a conflict of interest. Section 508 ensures that at all times an officer is heading the Department of Justice. If the Attorney General is recused, it is necessary that someone can head the Department for that investigation. It is inconceivable that Congress intended Section 508 to reach physical disability, but not to reach legal requirements that disabled the Attorney General from participating in certain matters.

Whitaker’s former company is under FBI investigation

Then there’s the news that a company for which Whitaker provided legal services is under criminal investigation.

The Federal Bureau of Investigation is conducting a criminal investigation of a Florida company accused of scamming millions from customers during the period that Matthew Whitaker, the acting U.S. attorney general, served as a paid advisory-board member, according to an alleged victim who was contacted by the FBI and other people familiar with the matter.

The investigation is being handled by the Miami office of the FBI and by the U.S. Postal Inspection Service, according to an email sent to the alleged victim last year by an FBI victim specialist. A recording on a phone line set up by the Justice Department to help victims said Friday the case remains active.

When Whitaker was subpoenaed, he blew it off.

Whitaker, named this week by President Trump as acting attorney general, occasionally served as an outside legal adviser to the company, World Patent Marketing, writing a series of letters on its behalf, according to people familiar with his role.

But he rebuffed an October 2017 subpoena from the Federal Trade Commission seeking his records related to the company, according to two people with knowledge of the case.

But the public record shows that when customers complained, Whitaker threatened them, invoking his background as a former US Attorney.

In emails uncovered by the FTC investigation, Whitaker personally threatened a customer who complained, according to a story in the Miami New Times that was picked up by other news outlets.

The emails the FTC obtained, in fact, suggests Whitaker used his background as a U.S. attorney to try to silence customers who claimed they were defrauded by the company and sought to take their complaints public.

In this case, Whitaker sent an intimidating email to a customer on August 25, 2015, who had contacted World Patent Marketing with his grievances and and filed a complaint with the Better Business Bureau.

The FTC docket reviewed by New Times contains an email exchange on page 362 of 400 that described what happened next.

Rather than expressing concern about the customer’s charge of being cheated,  Whitaker wrote him to let him know that he, Whitaker, was “a former United States Attorney for the Southern District of Illinois…Your emails and message from today seem to be an apparent attempt at possible blackmail or extortion.”

“You also mentioned filing a complaint with the Better Business Bureau and to smear WPM’s reputation online. I am assuming you know that there could be serious civil and criminal consequences for you if that is in fact what you and your ‘group’ is doing. Understand we take threats like this quite seriously…Please conduct yourself accordingly.”

This doesn’t necessarily impact the Mueller probe itself. But it suggests that Whitaker has real corruption problems that will undermine his actions as AG.

Trump and Whitaker may have spoken about the Mueller probe — and Trump is already lying about it

Shortly after Whitaker was appointed, WaPo reported that Trump told multiple people that Whitaker was “loyal” and wouldn’t recuse.

Trump has told advisers that Whitaker is loyal and would not have recused himself from the investigation, current and former White House officials said.

Then WaPo reported that Whitaker has no intention of recusing, reporting that would necessarily predate any discussion with DOJ’s ethical advisors.

Acting attorney general Matthew G. Whitaker has no intention of recusing himself from overseeing the special-counsel probe of Russian interference in the 2016 election, according to people close to him who added they do not believe he would approve any subpoena of President Trump as part of that investigation.

[snip]

On Thursday, two people close to Whitaker said he does not plan to take himself off the Russia case. They also said he is deeply skeptical of any effort to force the president’s testimony through a subpoena.

Special counsel Robert S. Mueller III has been negotiating for months with Trump’s attorneys over the terms of a possible interview of the president. Central to those discussions has been the idea that Mueller could, if negotiations failed, subpoena the president. If Whitaker were to take the threat of a subpoena off the table, that could alter the equilibrium between the two sides and significantly reduce the chances that the president ever sits for an interview.

Meanwhile, when asked today, Trump claimed (in spite of all the briefings Whitaker has attended in recent weeks) that he didn’t know him, even though he went on Fox and hailed him after the most recent attempt to use him to kill the Mueller probe.

“I don’t know Matt Whitaker,” Mr. Trump told reporters as he left Washington for a weekend trip to Paris. But the president stressed that he did know Mr. Whitaker’s reputation well, calling him “a very respected man.”

[snip]

In addition, the president’s claim that he did not know Mr. Whitaker was called into question by Mr. Trump’s own words from just about a month ago, when he said in a “Fox & Friends” interview: “I can tell you Matt Whitaker’s a great guy. I mean, I know Matt Whitaker.”

Mr. Whitaker has also visited the Oval Office several times and is said to have an easy chemistry with the president, according to people familiar with the relationship. And the president has regarded Mr. Whitaker as his eyes and ears at the Justice Department.

As CNN notes, Whitaker seemed to have been actively plotting for his boss’ job since the NYT stupidly tried to get Rosenstein fired (which I suspect means Whitaker was a source for the NYT).

A source close to Sessions says that the former attorney general realized that Whitaker was “self-dealing” after reports surfaced in September that Whitaker had spoken with Kelly and had discussed plans to become the No. 2 at the Justice Department if Rosenstein was forced to resign.

In recent months, with his relationship with the President at a new low, Sessions skipped several so-called principals meetings that he was slated to attend as a key member of the Cabinet. A source close to Sessions says that neither the attorney general nor Trump thought it was a good idea for Sessions to be at the White House, so he sent surrogates.

Whitaker was one of them.

But Sessions did not realize Whitaker was having conversations with the White House about his future until the news broke in late September about Rosenstein.

All of this raises huge questions about whether Whitaker and Trump (or Kelly) had an agreement in place, that he would get this post (and shortly after be nominated for a judgeship in IA), so long as he would agree to kill the Mueller probe.

Debates over the legality of Whitaker’s appointment parallel challenges to Mueller’s authority

Then there’s the point I raised earlier today. If Whitaker’s appointment is legal, then so is Mueller’s, which undercuts one of the other efforts to undermine Mueller’s authority.

Whitaker’s nomination really undermines the arguments that Miller and Concord Management (who argued as an amici) were making about Mueller’s appointment, particularly their argument that he is a principal officer and therefore must be Senate confirmed, an argument that relies on one that Steven Calabresi made this spring. Indeed, Neal Katyal and George Conway began their argument that Whitaker’s appointment is illegal by hoisting Calabresi on his petard.

What now seems an eternity ago, the conservative law professor Steven Calabresi published an op-ed in The Wall Street Journal in May arguing that Robert Mueller’s appointment as special counsel was unconstitutional. His article got a lot of attention, and it wasn’t long before President Trump picked up the argument, tweeting that “the Appointment of the Special Counsel is totally UNCONSTITUTIONAL!”

Professor Calabresi’s article was based on the Appointments Clause of the Constitution, Article II, Section 2, Clause 2. Under that provision, so-called principal officers of the United States must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.

He argued that Mr. Mueller was a principal officer because he is exercising significant law enforcement authority and that since he has not been confirmed by the Senate, his appointment was unconstitutional. As one of us argued at the time, he was wrong. What makes an officer a principal officer is that he or she reports only to the president.

While it may be true (as Conway argued at the link) that Calabresi’s arguments are wrong for Mueller, if they’re right for Mueller, then they’re all the more true for Whitaker. So if Mueller should have been Senate confirmed, then Whitaker more obviously would need to be.

John Kelly’s involvement may (and I suspect does) present added conflicts

Then there’s John Kelly’s role, as someone who had a key role in the firing but whose testimony Mueller is currently pursuing (possibly via subpoena).

Kelly is among the people about whom there is the most active dispute legal between the Special Counsel and the White House, a fight picked by the legally competent Emmet Flood.

And Kelly was the person who forced Jeff Sessions to resign on Wednesday. As far as is public (and there’s surely a great deal that we have yet to learn about who was in the decision to force Sessions to resign and when that happened and who dictated the form it would take).

But Kelly had the key role of conveying the President’s intent, in whatever form that intent was documented, to Sessions. If Trump’s past firings are any precedent, Kelly had a very big role in deciding how it would happen.

So the guy whose testimony Mueller may be most actively pursuing (indeed, one who might even be in a legal dispute with), effectuated a plan to undercut Mueller’s plans going forward.

CNN provides more context for Kelly’s role, showing him to be involved in the last attempt to install Whitaker and suggesting that Kelly consulted Trump before refusing Sessions’ request to stay through the week.

John Kelly, the White House chief of staff, asked Sessions to submit his resignation, according to multiple sources briefed on the call. Sessions agreed to comply, but he wanted a few more days before the resignation would become effective. Kelly said he’d consult the President.

[snip]

Rosenstein and [PDAAG Ed] O’Callaghan, the highest-ranked officials handling day-to-day oversight of Mueller’s investigation, urged Sessions to delay the effective date of his resignation.

Soon, Whitaker strode into Sessions’ office and asked to speak one-on-one to the attorney general; the others left the two men alone. It was a brief conversation. Shortly after, Sessions told his huddle that his resignation would be effective that day.

O’Callaghan had tried to appeal to Sessions, noting that he hadn’t heard back about whether the President would allow a delay. At least one Justice official in the room mentioned that there would be legal questions about whether Whitaker’s appointment as acting attorney general is constitutional. Someone also reminded Sessions that the last time Whitaker played a role in a purported resignation — a few weeks earlier in September, with Rosenstein — the plan collapsed.

Sessions never heard in person from the President — the man who gained television fame for his catch-phrase “You’re fired” doesn’t actually like such confrontation and prefers to have others do the firing, people close to the President say. Kelly called Sessions a second time to tell him the President had rejected his request for a delay.

Nevertheless, a guy Mueller is trying to interview was right there in the loop, making two efforts to install someone whose sole apparent job is to undercut Mueller.

Everything Whitaker touches may turn to shit

Now, maybe Flood would still have bought off on this — though the multiple reports now claim no one at the White House knew about Whitaker’s problems suggest he may not have been in the vetting loop (because, again, he’s competent and knows the import of vetting).

But there’s one more thing to account for. Everything Whitaker touches may turn to legal shit. It’s a point Katyal and Conway make.

President Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.

This appointment could embroil DOJ in legal challenges for years, at least, as plaintiffs and defendants claim that DOJ took some action against them that can only be authorized by a legal Attorney General.

While I don’t think it’s likely, it’s possible that’s the point. As I noted earlier, on Thursday Mueller’s team seemed to be staking a claim that they can continue to operate as they have been.

But their authority, or at least Mueller’s and the others who aren’t AUSAs temporarily reassigned to Mueller, all stems from a legally valid Attorney General or Acting one. If Mueller continues to operate while the legally problematic Whitaker claims to authorize them, what does that do for their actions?

That may be why the DC Circuit wants more (public) briefing on this question in the Andrew Miller case. By appointing a totally inappropriate AG, Trump might just be pursuing his longterm strategy of chaos.

Is this Don McGahn’s last fuck-up?

This entire post is premised on two things: first, that Emmet Flood is among the rare people in Trump’s orbit who is very competent. It also assumes that because both these issues — White House Counsel until Cipollone takes over, and White House Counsel in charge of protecting Trump from the Mueller investigation — would fall solidly in Flood’s portfolios, he would have a significant role in the plot.

Perhaps not. Federalist Society’s Leonard Leo is claiming (in a CNN report that should be read in its entirety) he worked on the plan with Don McGahn.

Leonard Leo, the influential executive vice president of the Federalist Society, recommended to then-White House counsel Don McGahn that Whitaker would make a good chief of staff for Sessions.

“I recommended him and was very supportive of him for chief of staff for very specific reasons,” Leo said Friday.

So maybe this scheme was, instead, planned out by Don McGahn (who has been officially gone since October 17).

But that would raise questions of its own — notably, why this plan was on ice for so long. And why Flood wasn’t in the loop (and why the White House continues to neglect the most basic vetting of people they put in charge of huge parts of our government).

I expect basic competence out of Emmet Flood. But this whole scheme could only be judged competent if the point was to totally discredit anything DOJ does, including but not limited to the Mueller probe.

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70 replies
  1. dpa says:

    Whoa if true! But it seems too organized. Or rather Trump & Co. don’t seem that organized. From what I remember, there was some discussion here at one time that Flood might be there as some sort of firewall for the rest of the Republican establishment. Does that still resonate?

  2. Jennifer says:

    Is it at all possible that Whitaker is just a stand-in, for Sessions? What I mean is, could Sessions still be running the show from the outside while Whitaker does the dirty work of killing the investigation?

  3. cw says:

    I think evidence shows that the Trumps are not competent. Witaker is obviously a corrupt moron. The Trumps did not vet him. They are trying to appoint him without Senate approval. I don’t think it makes sense to attribute Machiavellian planing to this.

  4. Avattoir says:

    It seems at least as likely that Flood follows something like Rosenstein’s path to survival: never disagree with Toad, never try to discourage him from doing whatever he wants, just tell him he’s handsome & viral & smart & doggonit people love him – which works to keep you in your phony baloney job but at the same time provides a context in which Toad’s corrupt dishonesty, stubborn ignorance, systematic laziness & constant willfulness inevitably lead him to those who admire him for & possess or aspire to those same traits.

    Imagine being in Flood’s position & thinking, If Kelly finds out I tried to run even a cursorily quick & dirty check on Whitaker without running it first by the president, even if it came up clean – no: ESPECIALLY if it came up clean, then I might just as well pack up, because Kelly will rat me out to the president & I myself will become hunted.

    • earlofhuntingdon says:

      Flood does not need this work that badly.  Whitaker does, it’s his chance at the brass ring, but not Flood.  But his status among the movers and shakers inside the Beltway depends on his competence and judgment – both of which are at issue here.

      But why did Flood choose to so intimately involve himself in protecting this president?  His decision to do so suggests that he’s responding to the goals of other patrons, not Trump.

      • BobCon says:

        I wouldn’t be surprised if you’re right, and my guess is that Flood is compartmentalizing himself to minimize his exposure, and his patrons know that’s what’s going on.

        He’s there to supply his real clients with information, step in where possible, and keep his hands as clean as possible.

        Having said that, I think it’s part of Trump’s basic power moves to ensure his underlings get their hands dirty so it’s harder for them to squeal. Flood may have trouble, although as a very skilled lawyer I’m sure he’s much better equipped than your typical White House flunky.

  5. clairence says:

    Trump has shown his willingness to say whatever he thinks will close the deal at any given moment.  Recall he also said he knew Putin then said he didn’t.  The thing about Trump that makes him so dangerous is, while he is a total buffoon, he has also been grifting for seven decades and has internalized an perfected certain skills that are getting him pretty much whatever he wants.  I suspect one of those skills is, believe it or not, appearing less capable than he actually is.

    Another grifting skill is recognizing the cons around him. He has a remarkable ability to find the lyingest most corrupt people and put them under his control. It may work for a family mob racket but it’s destroying the country.

  6. Mo says:

    The Special Counsel needs to hold a press conference as soon as possible and tell the American people that the investigation is being sabotaged.

    A statement from the spokesman for the Special Counsel is not enough.

    The situation is critical.

    One option for the Special Counsel is to resign in protest.

    Details of the investigation are being given to the Acting Attorney General, Whitaker who is most likely relaying that information to Trump.

  7. Kevin Finnerty says:

    >” If Mueller continues to operate while the legally problematic Whitaker claims to authorize them, what does that do for their actions?”

    That definitely puts Mueller in a tough spot. I wonder if any potential defect could be cured if Rosenstein were to simultaneously concur with Whitaker in any Mueller related oversight decision. Of course, the practical likelihood of this happening is remote.

    I find it concerning that Rosenstein urged Sessions to delay resigning. It makes me worried that today was supposed to be an important day at the grand jury.

    As far as Emmet Flood goes- who knows. It’s a fool’s errand to stake your reputation and professional standing with Trump. Whether it’s because Trump ignored/undercut him, or was able to bully him into submission, the end result is the same- Flood is mired in Trump’s toxic mess. The only way you can win this particular game is to not play.

    • Desider says:

      “I wonder if any potential defect could be cured if Rosenstein were to simultaneously concur with Whitaker in any Mueller related oversight decision. ” – seems unlikely, as agreeing publicly with your corrupt Machiavellian boss in no way confirms you actually agree with him.

      • Kevin Finnerty says:

        My scenario assumes that Whitaker doesn’t object to any urgent action memo Mueller transmits. If Mueller transmits the memo to Rosenstein and Whitaker and both do not object, then maybe the action would still be considered authorized in the event Whitaker’s appointment is found to be unconstitutional.

      • earlofhuntingdon says:

        If Whitaker is formally in charge at the DoJ, then until someone in authority says that his status is illegitimate and makes that stick, Whitaker is in charge of Mueller’s investigation.  He would decide whether and to what extent Rosenstein had any involvement with the Mueller investigation.

        Given Whitaker’s obtuse incompetence and drive to do Trump’s bidding, and Trump’s bad relationship with Rosenstein, it seems unlikely he would allow Rosenstein any continued involvement.  He and Trump would want to keep small the circle of people with direct knowledge about their actions to disrupt Mueller and the DoJ.

  8. pseudonymous in nc says:

    Oh, I think you might need a correction on this one. Leo and McGahn worked on getting Whitaker hired by DOJ as Beauregard’s chief of staff in autumn *2017*, so McGahn’s departure didn’t affect the initial hiring, though it may have affected the plan for him to take over as acting AG.

    I know, the years bleed together.

    “If Mueller continues to operate while the legally problematic Whitaker claims to authorize them, what does that do for their actions?”

    Undermine the authority of the entire DOJ as a poison pill against Mueller? That would be evil genius shit, and for now I’m also inclined to go with “incompetence driven by King Idiot’s desire for grifters and toadies who stroke his ego” because it seems to have greater past precedent.

    It does feels significant (per NYT) that Whitaker interviewed with McGahn in July 2017 but was not hired by the White House, then went back on the pundit beat for a couple of months before being anointed by Pope Leonard and elevated to DOJ. To me, that suggests McGahn had reasons not to want him on the White House counsel’s team — this was the timeframe just after John Dowd came onboard as a personal lawyer and when Ty Cobb joined the White House. The story of why Whitaker didn’t go to the WH and instead kicked his heels over the summer of 2017 before ending up at DOJ seems worth a closer look, especially given the timing w/r/t the FBI’s investigation of World Patent Marketing.

    • harpie says:

      The story of why Whitaker didn’t go to the WH and instead kicked his heels over the summer of 2017 before ending up at DOJ seems worth a closer look, especially given the timing w/r/t the FBI’s investigation of World Patent Marketing.

      Agree. I’m very interested in this, including what “kicked his heels over the summer of 2017” includes.

  9. jf-fl says:

    “unconstituional” = sic

    While certainly not impossible…. I think reading one too many rudy guiliani quotes finally fried the wrong brain cell.   In a world where Trump was taking advice from competent counsel, I doubt he would be trying to influence who is running his investigation.     If anything he’s got members of his own party asking for mueller legislation now… the same people who depending on what mueller finds would vote for conviction for impeachment.   I think it’s much, much simpler.

    Trump is chaotic not because it’s a strategy.   He’s chaotic in the way that low income/low education folks on COPS are chaotic.   They are just smart enough to never admit that they did the deed.   They are too dumb to stick with a convincing story.   Instead so they alternate between tactics… “idk”, denial, telling conflicting stories, and when they get caught running until they lose their breath. Rinse, repeat.

    I suppose you could call a collection of tactics like this a strategy. Perhaps it would be the same if one of the COPS suspects inherited $400 million from his dad.   Perhaps with enough lawyers anything looks like strategy.   I think given what we know though, the occum’s razor (sic) is more along the lines of because when you know you’re caught, “whacha gonna do when they come for you?”

  10. Charles says:

    [N]o employee shall participate in a criminal investigation or prosecution if he has a personal or political relationship with:
    (1) Any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution; or

    I think this may fail on the tense (“has a personal or political relationship”) as well as Clovis’s status. If Clovis is a witness in the Mueller probe, that’s very different than being a target. At the moment, it seems that he’s more witness than target. Also, friendships are so common in incestuous Washington that it’s hard to find anyone who isn’t conflicted. So, if Whitaker is a godfather to a Clovis child, that could be a conflict. So that leaves Whitaker’s service as Clovis’s chairman. But that was in 2014. So, that’s well in the past. So it seems like he’s in a gray area. Rod Rosenstein’s statement that Whitaker is a “superb” choice sounds like Whitaker is not going to have to recuse on those grounds.

    The World Patent Marketing activity, though, sounds really bad. Normally, company advisers have little liability for what a company does, because they have no decision-making power. But Whitaker crossed so many lines that it’s hard to argue he wasn’t embedded in and maybe even central to the fraudulent behavior. By asserting his authority as a USAA to make threats, he was stepping outside an advisory role.

    As for the legality of the appointment, that would require in the short term the Legislature to assert its power. There is no long-term in Trump world. Based on Trump’s current “not knowing” of Whitaker, it sounds like he plans to use him to sabotage the Mueller investigation, then throw him away like a used rag.

    And then there’s the “everything he touches turns to sh-t” part. The problem is, that’s likely to result in massive damage to DoJ, with career employees heading for the lifeboats. Trump’s main tool in everything seems to be chaos.

    BTW, I know that this site has some (well-deserved) disdain for Ben Wittes. But the Lawfareblog podcast on the appointment, which includes Susan Hennessey, Bob Bauer, Paul Rosenzweig, Steve Vladeck, and Chuck Rosenberg, is worth listening to.

    Disclaimer: IANAL, so my understanding of the ethical standards is from general personal experience, not any specific professional insight.

    • emptywheel says:

      I agree — that was a great podcast.

      Basically, Chuck Rosenberg is one of the most valuable commentators on this whole mess, both because he seems to have a better read than anyone else, and because he knows Mueller well.

  11. Rusharuse says:

    WSJ was not very nice to our President today – story and perky video chronicling the hush money thing and a fine expose on the Butterbean stooge he inserted as AG made Trump appear somewhat shady. Maybe Rupert and Son(s) been reading the tea-leaves and considering making a personell change in the oval office. When Foxnews start to pile on we’ll know for sure Trump’s time is up.

    • Trip says:

      You may have something there.

      Manu Raju‏Verified account @mkraju

      Rupert Murdoch just swung by Mitch McConnell’s office. Asked why he was there, or his views about Hannity campaigning with Trump, or about the WH pulling @Acosta press credentials, he declined to comment https://twitter.com/mkraju/status/1060601700577349633

      I don’t watch Fox News, but the articles at Raw Story lately, with Napolitano pushing back against Whitaker, or someone actually flustering Lindsey Graham about his changing tune on Sessions, they are either trying to look like news occasionally, or perhaps the plot has changed. Tax cuts for billionaires /done. Trump had big losses. Maybe it’s time to pull the switch…slowly?

  12. ccollier says:

    Marcy’s read is solid.
    To those commenting that the Trump crew is too incompetent for such planning: what do you think Flood & co. are working on behind the scenes?

    They’ve had plenty of time to develop this and I think Marcy is likely pretty close here.

    & re-visit NYT’s hit piece on Rosenstein from September. That article is so absurd in making Rosenstein out to be begging like a dog to avoid Trump’s Twitter-wrath. It does not match his character. I don’t know that Whitaker was a direct source, but imagine he was involved in feeding that story for sure.

  13. Tracy says:

    This is just all so disheartening. I can’t think of a worse person in this role.

    I can’t believe there’s been no formal or legal challenge to his appointment yet! As the minutes tick by it becomes more and more likely that Whitaker will be read in to the Trump probe, if he’s not been already. Then, even if he IS dismissed, the damage is done and Trump will have gotten a large part of what he wanted: insight into the OSC’s case. I think people who could challenge this fail to grasp the dire consequences of each passing moment in this untenable situation- or there is some other reason why they delay?

    Interesting comment above that the OSC should come out to the American people (but good heavens, please don’t resign!)

    Something has to give here. Whitaker it sounds like is conflicted in overseeing the FBI in role as AG if that company he was involved w/ is under investigation. He can’t possibly be AG for that reason alone, let alone all the Russia related reasons EW gives, I’d think.

    It’s like watching the Scott Pruitt thing drag on and on, and this has only been two days! In this case, every moment compounds the damage that could be done!!

  14. Angus says:

    I think Occam’s razor needs to be applied. This is an execution of an old plan and Flood not briefed in. No vetting of Whittaker. Sheer incompetence in the firing (Sessions wanted a few days to complete his loose ends). Consequently chaos as Whittaker’s conflicts emerge after the act. Trump wanted a distraction from the mid term results and to bring the news cycle focus back to him. No one in the WH cares about unintended consequences. It’s all very transactional.

    • earlofhuntingdon says:

      These staffing changes feel incompetent, but they are planned and well-timed.

      That is not typical Trump behavior.  He is reactive rather than planful.  But it is obvious that Leo and others are able to manipulate Trump when his urgent needs coincide with theirs. Part of that is manipulating the timing of when Trump becomes aware of things, which would be essential, given the lengthy planning required for some of these moves.

      Here, Trump wanted to humiliate Sessions and hurt Mueller.  He was persuaded to wait until after the election.  Acting before it could have cost him more congressional seats and control of one or both houses, and any number of state seats. (As it is, they lost one.)

      Others around Trump are determined to ensure the survival of the GOP after Trump crashes and burns, and to protect their neoliberal patrons and the gains made to date on their behalf, such as filling the federal judiciary with Leo’s youthful, arch-conservative appointments.

      • Peterr says:

        As many times as Trump seemed on the verge of firing Sessions, something/someone led him to back off each time until after the midterms. Some of that is surely Mitch McConnell’s doing: “You can fire him, but you will hand the Senate to the Dems if you do it before the elections.” But this also means that there have been lots of conversations about the best way to fire Sessions over the last 18 months.

        To be clear: this does not mean that there were plans that were strategically thought through and executed accordingly. That may or may not have been true. What it does mean is that lots of folks were doing lots of thinking about how to do this, and no doubt arguing with each other and with Trump about the merits of their own ideas and the flaws in the ideas of others.

        This, I think, is why there is both a feeling of planning and a sense of incompetence. Lots of talking does not equate with planning — indeed, in this case, it may have added to the incompetence.

  15. Jack says:

    “new limits on consent decrees used to reign in…”

    It’s “rein” like pony, not “reign” like princess.

  16. oldoilfieldhand says:

    “Whitaker wrote him to let him know that he, Whitaker, was “a former United States Attorney for the Southern District of Illinois…”
    Unless this is a typo, Whittaker misrepresented himself as a US Attorney from Illinois, when actually, according to Wikipedia, he was appointed U.S. Attorney for the Southern District of Iowa.

    On June 15, 2004, Whitaker was appointed U.S. Attorney for the Southern District of Iowa by President George W. Bush.

    Any legal repercussions from this if in fact Whittaker is responsible for this error?

    • harpie says:

      Good catch! But, yes, that’s an error in the Forbes article. They link to the e-mail here:

      The FTC docket reviewed by New Times contains an email exchange on page 362 of 400 that described what happened next.  

      • oldoilfieldhand says:

        harpie,

        Thank you for clarification link. Although extremely rare, and especially since Marcy is following so many developments while leading collective intelligent evaluations, I understand an occasional typo from the rare person capable of simultaneously typing and thinking (well beyond my limited abilities).

  17. Tom says:

    I think the biggest recommendation Matt Whittaker has going for himself in the President’s view is that he looks like what Trump thinks an Attorney General should look like–tall, bald, and beefy with an intimidating appearance. Judging from a story on CNN last night, Whittaker also has a history of going after Democrats, which may be what Trump has in mind with his threat to investigate Democrats if they investigate him.

    • harpie says:

      I think your right. Trump is always about optics—projecting his WWF idea of “strength”. There’s a photo of MW lifting weights at this tweet. [Can anyone tell what that tattoo on his arm is?]

      • Trip says:

        The White House official said the president liked Whitaker, who was a “backslapping, football kind of guy”~WAPO

        • Jenny says:

          Tom, good point. I agree.  Trump is all about the physical.

          Whittaker is a big bruiser with lots of baggage.  He looks tough, talks tough and acts tough.  Perfect casting for Trump’s maniacal administration.

    • harpie says:

      Related: From the indefatigable Daniel Dale:  

      Tears Update: Here are the five five times since October 1 that Trump has claimed a big, tough man approached him in tears backstage and told him “thank you for saving our country.”

      From the screenshots of potions of the 5 speeches:

      1] “a very, very powerful guy, a big strong guy” 2] “big strong guys” 3] “big guy […] “big tough guy” 4] “big strong guy” 5] “strong and tough” […] “strong, tough cookie” 

        • rip says:

          While were their, how about “you’re” instead of “your”? <grins>

          Forgetting grammar, etc., I am so impressed by the knowledge and clarity of most of this group.

          • Charlie says:

            While were their, how about “you’re” instead of “your”?

            Rip – How about:- “While we’re there..” That was your joke, eh?

  18. oldoilfield says:

    I would have figured that Trump prefers people with long blonde hair, like a pre-WWE wrestler Trump may have fashioned his own hairstyle after, Gorgeous George!

    Apologies if this link is a problem. But it shows a prime example of ridiculous, ahead of his time, beyond the pale showmanship that Trump may have appropriated for himself.

  19. Trip says:

    Half-assed solution to a (coming/already arrived?) massive famine in Yemen, to fend off criticism and change:
    Pentagon: No more refueling of Saudi aircraft bombing Yemen

    Critics in Congress have called for the White House to pull the plug on a $110 billion deal to sell arms to Saudi Arabia. “It’s being done as part of the administration’s effort to get ahead of congressional action against Saudi arms sales and other operational support,” said Michael Knights, a fellow at the Washington Institute for Near East Policy who has consulted with the Saudi-led coalition in its campaign in Yemen against both a Houthi insurgency and militant groups affiliated with Al Qaeda. The practical effect of the new move is likely to be limited. The United States has only provided some 10 percent of refueling support to the air campaign, according to Knights. https://www.politico.com/story/2018/11/09/saudi-arabia-yemen-bombing-pentagon-refueling-982924

    • harpie says:

      This is what AP reports:
      US to stop refueling of Saudi aircraft in Yemen war  
      […] As a result, the decision to halt the U.S. refueling will likely have little impact on the fight, but will allow the Trump administration to say it has taken action against the Saudis for the devastation in Yemen. // The Saudi statement said it had “increased its capability to independently conduct inflight refueling,” and therefore “requested cessation of inflight refueling support for its operations in Yemen.”

      • Trip says:

        Yep. And the news cycle has moved beyond the Khashoggi assassination, (not to mention the slaughter in Pittsburgh, and the bomb mailings). It’s head-spinning and designed as such.

  20. Rapier says:

    Flood has quite the resume.  From Wiki:

    Flood obtained a Bachelor of Arts from the University of Dallas in 1978, a Master of Arts and a Doctor of Philosophy from the University of Texas at Austin in 1981 and 1986, respectively, and a Juris Doctor from Yale Law School in 1991.

    A guy who got a doctorate in philosophy and then spent 5 years getting a law degree, at 35 years old, is really something.  One can only imagine the deep philosophical discussions he has with Trump.  Not, of course.  For the life of me I can hardly imagine the calculus Flood used in agreeing to represent Trump. The only plausible if general and freighting reason I can think of  is that Flood is on board with Trumpian populism.

    It’s one thing for lawyers to be amoral when taking and serving clients but Trump?  A guy with a doctorate in philosophy chose to help Trump?  Keeping in mind that nobody alive has accrued anything positive from associating with Trump, other than money and the pleasure of rubbing elbows with the seedy and dirty.  I’m guessing Flood doesn’t need money or much enjoy the mobster milieu of the Trumps.

  21. gedouttahear says:

    So Rosentein says Wittershit is a “superb choice.” Is he being funny? Is this like his suggestion of wearing a wire? Maybe Rosenstein sees the absurdity in all this horror.  Rosenstein does bear some resemblance to Stephen Colbert.

    • pseudonymous in nc says:

      Rosenstein is known for being dry. I think it was him simultaneously keeping his job while saying to Whitaker “I know you leaked that shit to the NYT about secretly taping the president.”

      • Avattoir says:

        Rosenstein graduated Harvard Law right near the top of his class. He served as a senior editor on the HL Review- the most prestigious LR in the nation, in a post that’s voted on by HL students active on the LR in all 3 classes. He entered the DoJ under the Honors academic program, with his first posting being under David Margolis, long the chief ethics DoJo. He’s served with distinction in everything he’s been assigned at DoJ, including being the one member of the Starr team that came out of that process smelling like a rose (He’s actually credited with actively moving to exonerate the Clintons on several of the many fronts investigated by Starr’s Special Prosecutor team.). He’s never ducked any assignment, but rather accepted and performed well or better on many of what were expected to be and indeed turned out to be unquestionably the most difficult jobs in the DoJ, including as main DoJ liaison with the USg tax department.  He’s been put up before the Senate Judiciary Cte AT LEAST 3 times – as an asst USa, a USa and as Deputy AG – and each time received actually or near unanimous approval from D senators (I’ve read somewhere that over his various vettings by the Senate, he’s actually received in total a greater number of votes in favor from D senators than he has from R senators.). He was kept on as a USa (for Maryland) by the Obama administration (and bear in mind that he & Obama would definitely have known each other when both were students at Harvard Law and in serving on the HL Review). We actually STILL don’t know sufficient detail on how Rosenstein’s memo about Comey’s conduct as FBID came about, but I posted here AT THAT TIME that everything in that memo was completely correct and put both succinctly and with the correct force. He’s not ‘just’, as Comey, called him “a survivor” – he’s a better academic than Comey, as smart or smarter than almost every other DoJ employee, We’ve seen a number of public examples of him using his extremely dry wit in a variety of settings, including when he was being hounded by House Free Dumbers. He was who chose Mueller as Special Counsel, he worked under Mueller at DoJ for a time a number of years ago, and there’s been absolutely no indication at all of tension between Mueller and Rosenstein in the execution of their respective roles and the intersection of them concerning POTUS for almost 18 months now, in circumstances every bit as trying as during Watergate and, having watched both unfold in real time,  are quite a bit more consequential for the future of this republican democracy.

        When someone with THAT background, THAT c.v., THAT history, and THAT proven wit under fire, publicly calls a graduate from a law school that’s certainly no better than third tier (not really all that far up from a hog holler), a proven incompetent prosecutor turned scam artist, political operative and cable pol talk show flack, “a superb choice” for this role of acting A.G. or whatever it is that Trump imagines is going on, that means we are not just free, not just invited, but being yelled at to wake the fuck up and recognize he means something other than the literal meaning of that description.

        Indeed, to ME at least, to hear DAG Rosenstein say those words sounds a helluva lot closer to –

        ‘This is pretty much exactly the scenario Mueller and I saw coming, at pretty much this timing, and I’m content we did all we possibly could in advance, in order to deal with this in most promising way we could think of, given all the circumstances.’

        • Trip says:

          Thank you Avattoir. The one thing I found off putting, or more accurately, worrisome, was his outward displays of support for Kavanaugh. I realize he is a Republican and with that he’d have conservative leanings, but Kavanaugh is a hack (at least he was), no matter the party affiliation. Never mind that the accusations against him were credible, and his performance abhorrent.

        • Peterr says:

          I like this, especially the last paragraph.

          Makes me wonder what may be under seal with the court, or otherwise ready to pop.

        • gedouttahear says:

          Excellent explication.  Thanks. The guy seems to have a bit of Dorothy Parker in him. But as @Trip noted below, R’s support of Kavanought was unsettling. Then again, human beans are complicated. Except for a few simpletons now running the country.

  22. earlofhuntingdon says:

    By appointing a totally inappropriate AG, Trump might just be pursuing his longterm strategy of chaos.

    That must certainly be part of any actual strategy.  And there is strategy in this appointment, just not the usual one of appointing a legitimate AG or acting AG to run one of the most important agencies in the USG – the Sec’y of State is fourth in line to succeed the president.  Coincidentally, it is the USG agency that is the greatest threat to Donald Trump’s fortune and business and his continued on hold office.

    As you say, Trump’s appointment of Whitaker could throw a monkey wrench into every important decision the DoJ makes through his office.  The resulting chaos could affect it for years and costs many millions, which could discredit the DoJ for much longer.  Whatever other reasons Trump’s circle might have for appointing Whtiaker, and interfering with Mueller’s investigation would be among them, that makes this appointment at least a twofer.

    A GOP commentator this morning described Trump as acting “honestly” in why he appointed Whitaker.  To point out the obvious, acting honestly while intending to deceive is still deceptive, it is just open and notorious rather than stealthy.

    Pursuing that theme, and given his considerable intentional involvement in bringing these events about, Whitaker might have just walked into his own charges of obstruction charge and ConFraudUS.

  23. Willis Warren says:

    Maybe that’s the point.  If Whitaker is not legitimate, they can argue Mueller isn’t either.  If Whitaker is, they can shut Mueller down.

    I’m skeptical, though, because if Mueller wasn’t legit, the Senate and House would have been arguing this for over a year.  This seems to be a new, poorly thought idea from a long sucksession of shitty ideas.

    • Trip says:

      Yes, Arron Banks is linked to Cambridge Analytica, the Russians, Brexit, the hard right push and Donald Trump (plus Erik Prince). Mueller has been quietly investigating him.

      It’s interesting that he used his insurance co. data to push the Brexit scenario.

      The long-awaited report by Britain’s Information Commissioner’s Office, which has been investigating the misuse of personal data by political campaigns, also said an insurance company owned by Arron Banks, a main backer of Britain’s campaign to leave the European Union, broke British law when it used customer data to aid the Brexit effort. According to the commissioner’s office, the company, Eldon Insurance, shared private email addresses to be sent campaign messages on behalf of Leave.EU, a pro-Brexit group, months before the 2016 referendum on Britain’s membership in the European Union. ~NYT

      It makes the Spectrum Health, Alfa Bank “spam” server and Trump more intriguing. Was it data, payoffs, both or none of the above?

      Does all of this have to do with gold and diamond mining investments in payoffs? Fuck if I know. But Brexit and Trump, Inc. seem to be connected.

  24. cat herder says:

    So which is more disturbing: That all this is happening just the way they planned it, or that they had no idea of the complications that would arise?

    • Trip says:

      Some of it, I think, is pushing the envelope beyond the normal acceptable constraints of tradition, the constitution and democracy. Some of the shit they tossed at the wall worked out (Kavanaugh and other in-the-pocket activist judges). I think it will keep going, as long as they can get away with it, until all of the above are obliterated. The GOP can not stay in power without underhandedness, and they know it.

      • cat herder says:

        I imagine there’s a faction in the WH making the argument that they currently have all the power they need to stay in power forever, all that’s required is the will to do it (I don’t think they would be mistaken to believe that). No need to be scared of protests or lower court injunctions or elections or Special Counsels, or even online petitions(!), when you have votes on the SC to have all that messy stuff ruled unconstitutional.

        “Not possible with the current makeup of the Court,” you say. Well I say the temptation of making yourself and your political allies unaccountable and permanently in charge of everything forever would be one helluva drug, and nobody can predict who would decide to take a hit or what its effects would be. We’ve never been here before.

  25. Peterr says:

    Whitaker may have no intention of recusing himself, or even soliciting an opinion from the DOJ ethics office that considers such questions, but I wonder if there is another vehicle for getting that ethics opinion.

    Could Mueller take this to the ethics office, asking them “I’m supposed to present this information to the AG or Acting AG in the matter of the Russia investigation. If I deliver this information to someone who is NOT legally cleared to receive it, then I and my investigation are in serious trouble. Until Tuesday, everyone agreed that was Rod Rosenstein, because of AG Sessions’ conflict of interest. Now, with the appointment of Matt Whitaker, he would presumably take over from DAG Rostenstein — except that public reporting indicates there may be multiple conflicts on his part. Before I send sensitive information to him, I would like a formal opinion indicating either that he is entitled to receive it or that he is not, and providing the justification for that conclusion.”

    Is this simply wishful thinking, or might it be possible?

    • Avattoir says:

      Maybe file a motion or case with DC CJ Beryl Howell?

      Twenty SPs, SCs, ICs or IPs, whathaveyou, were appointed under statute between 1978 and the lapse of the last the statute in 1999. The statute was named, renamed, renewed, and amended at least 3 times, and variously called the Ethics in Government Act, the Independent Counsel Act or the Special Prosecutor Act.

      Following the 1999 lapse, Congress has passed no such law. But also – no such law existed BEFORE 1978, and many many SCs or SPs were appointed, some for quite a period of time, with important consequences, going back to the 1870s. To the point here, BOTH Archibald Cox and Leon Jaworski were commissioned technically by presidential administrations under some combination of executive branch powers with authority specifically identified with, by the constitution or by norms, to the U.S. Attorney General.

      There IS some argument that I at least think can be made that, in a situation not otherwise contemplated by or provided for in the DoJ regulation, it might be open for someone in Mueller’s position to apply, either by motion attached to an existing or sealed indictment, or by separately particularized and filed cause of action in the case of business still pending with a grand jury, to the chief judge of the court with supervisory jurisdiction over that grand jury, for something akin to the sort of order Leon Jaworski sought and obtained from DC CJ John Sirica that allowed for the “Road Map” memo to be transmitted by Jaworski to the Court and thereafter from the Court to Congress.

      Given my own background and experience, I’m actually likely to be a bit more up on this than SOME members of the Mueller team – maybe even Mueller (academically, at least). But I’m certainly nowhere remotely near qualified in or up on this area as any  of Mueller’s several appellate and/or motions experts, in particular Dreeben.

      The specially-ordered briefing that a panel of the DC Circuit CA just asked for this week might well constitute and invitation to refer this Whitaker issue to the courts.

      • Peterr says:

        I like what you’ve got here, but want to make sure I’m following you correctly . . .

        In your scenario, wouldn’t Whitaker have to take some action against Mueller before Mueller could take it to Howell (since the courts don’t give advisory opinions but only rule on whatever actual case/cause of action is before them)? Or would the simple order “You now report to me, not Rosenstein” be cause enough to bring this before Judge Howell?

  26. scribe says:

    You’re probably correct in assuming Flood’s competence.  You are, however, apparently overlooking the [strong] possibilities that (1) Flood was not read in on the scheme to get rid of Sessions, (2) Flood was read in and advised against it, (3) Trump just did what the hell he wanted regardless of anyone, (4) some combination of the above.

    Trump’s picture is in the dictionary next to “out-of-control client”.  An out-of-control client can make even the most competent attorney look like an idiot, let alone turning whatever course of action the attorney may have ginned up turn to shit.  E.g., once, a colleague was defending a “Cold case” murder trial (13 or 14 years after the death, with the goat-screw of an investigation having been led by the resident fuck-up detective).  The evidence putting the defendant-client at the alleged scene of the crime was, to be generous, tenuous.  Everyone was drunk at the time, and more.  It wasn’t even clear the alleged scene of the crime was where it actually happened – the decedent had supposedly bled out on a barroom floor, but there was no trace of blood there and the detective hadn’t tested the floor with Luminol (the stuff that reveals blood residue even after vigorous cleaning).  (Nor was there blood on his white pants, and no one claimed this was a pants-free zone.)  So, if there was ever a case where putting the client on the stand to testify (“I wasn’t there.  I don’t know where that dive is.  I never carry a knife.”) would be a reasonable bet, this was one.

    So, the day before he was to testify, the client (out on bail) decides to play amateur detective and confront a witness early in the morning before court, taking the witness for a ride while interrogating the witness about something or other.

    After getting the witness back, the prosecution says “if you put the defendant on the stand, we’ll charge him with kidnapping”.  So, the defendant doesn’t testify and the “kidnapping” charge is never lodged.

    I think that defendant has finished his 15 year sentence by now.

    I opine the timing of Sessions ouster was most likely related to the polls closing, so as to not further bollux things.

  27. Rapier says:

    Whitaker was vetted, by Trump anyway, in the manner of a Veg O’matic or Shamwow. As seen on TV in other words. Well kidding aside I believe it is now best when looking for motive from the rich, powerful and competent people actively at work supporting Trump one must assume dark things. Meaning I assume Flood is on board with chaos. I can’t answer how a guy with a Doctorate in Philosophy, which he earned before he went to law school, thinks that chaos can be managed. I wonder if Flood knows Stone?

  28. Glen Tomkins says:

    However competent Flood may be, however sound his advice to the president, he isn’t the decider, as Dubya put it.  Trump certainly seems to be quite literally demented.  It is the only reasonable explanation for much of his word and deed.  There’s only so much even the most competent handler can do for a decision-maker who refuses to take competent advice.   He is demented and has memory problems, so maybe you can get by for a while with simple expedients like filching documents from his inbox before he has a chance to sign them.  But there are people around him with agendas who unfortunately are not as demented as Trump, and so this president has found assistants who will help him get around such simple means of keeping him from shooting himself in the foot.

    The simplest explanation for this outcome is that Trump wanted Whitaker in the job, refused to listen to all the sound advice against that, and, perhaps because Whitaker belongs to a faction of Trump’s handlers who were in a position to enable this folly, Trump eventually got his way.

  29. Alan says:

    FYI–

    WSJ: “The Justice Department is expected to publish a legal opinion in support of Matthew Whitaker’s installation as acting attorney general as early as Tuesday… following questions about whether he can legally serve in the role. … The department’s Office of Legal Counsel is expected to say that President Trump had the ability to appoint Mr. Whitaker.”

    https://www.wsj.com/articles/democrats-seek-ethics-advice-sought-or-received-by-acting-attorney-general-matthew-whitaker-1542048901

    NYT: “The State of Maryland is expected to ask a federal judge on Tuesday for an injunction declaring that Mr. Whitaker is not the legitimate acting attorney general as a matter of law, and that the position — and all its powers — instead rightfully belongs to the deputy attorney general, Rod Rosenstein.”

    https://www.nytimes.com/2018/11/13/us/politics/matt-whitaker-lawsuit-illegal-appointment.html

  30. orionATL says:

    ew writes: “… As CNN notes, Whitaker seemed to have been actively plotting for his boss’ job since the NYT stupidly tried to get Rosenstein fired (which I suspect means Whitaker was a source for the NYT).

    well, well. now things make sense.

    but why? the nytimes took the word of a guy like whitaker with the background he has? methinks that old grey lady is suffering from baquet-bennet dementia with increasing bouts of unreliable reporting.

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