Neal Katyal Helps Mueller Write Monday’s Brief

As I noted in this thread, last week the DC Circuit asked Mueller and Andrew Miller’s teams to submit a 10-page brief next Monday, “addressing what, if any, effect the November 7, 2018 designation of an acting Attorney General different from the official who appointed Special Counsel Mueller has on this case.”

It shouldn’t have any role in Miller’s subpoena. After all, at the time that action was taken, Mueller’s authority had no defects (unless Miller wins this challenge, which is unlikely, even at SCOTUS). It might, however, have an effect going forward, and Monday’s brief is an opportunity for Mueller to make that case publicly, and make it both for this challenge and the Mystery Appellant challenge, if that one pertains to Mueller’s authority. (Sri Srinivasan and Judith Rogers, two of the three judges hearing Miller’s appeal, have been involved in the Mystery Appeal as well, so know the substance of it.)

As luck would have it, a key expert just provided Mueller’s team important material for their brief.

Neal Katyal was (as he has written extensively) the author for the special counsel regulations that Mueller works under. Last week, he teamed up with conservative lawyer George Conway to argue that Whitaker’s appointment is unconstitutional. Today, he published a piece arguing that Whitaker cannot supervise Mueller.

In it, he raises two problems: first, he says that he and his colleagues at DOJ — and those on Capitol Hill with whom Katyal consulted — did not envision something like what Trump has done to happen.

My Justice Department colleagues and I, along with a bipartisan group on Capitol Hill, worked through many possible scenarios before we settled on the rules that now govern Mueller’s investigation. Everyone in the debate recognized that any enhancement in the special counsel’s accountability had to come from additional supervision by the attorney general. After all, the power to supervise is the power to destroy. The attorney general can stop a special counsel from investigating altogether or stop them from taking a specific step (such as subpoenaing a president). He can read every file of the counsel, and he may even attempt to give information about the investigation to the president in real time. And he plays a crucial role in determining what report by Mueller, if any, is given to Congress and ultimately the public.

But no one — and I mean no one — ever thought the regulations we wrote would permit the president to install some staff member of his choice from the Justice Department to serve as acting attorney general and thereby oversee the special counsel. Such a proposal would have been laughed off Capitol Hill within a nanosecond as fundamentally at odds with the most cardinal principle that no one is above the law.

Mind you, this is just a regulation, so the several references Kaytal makes to Congress do not amount to legislative intent. Still, it does provide guidance about what the intent of the regulations were.

Katyal then describes the problem — one that directly relates to the substance of Miller’s argument. Even if Whitaker’s appointment is legal as an emergency appointment, he still needs a superior officer to supervise him. It would need to be either Rosenstein or Trump himself.

If the defenders’ claims were true, all that would mean is that Whitaker is an inferior officer who doesn’t need to be confirmed by the Senate. In that situation, someone else, a principal officer, would still need to be in place to supervise Mueller — who is also an inferior officer. That responsibility would fall once again to Rosenstein under the succession statute Congress authorized.

Sometimes, an inferior officer has to supervise other inferior officers with no principal — say, if no one else has been confirmed at the start of an administration. Or in a more hypothetical scenario, imagine a military conflict in which casualties meant there were no Senate-confirmed officials in a department. But fortunately, today’s Justice Department isn’t dealing with challenges anything like those. There are Senate-confirmed officials at the helm.

And regardless of those issues, there is yet another problem, specific to the Mueller investigation. In an emergency situation where an acting head is named, the president is, ultimately, the responsible official who supervises temporary, unconfirmed stand-ins. The idea is that there would at least be someone accountable to the public above the acting officer in those situations — and as Harry Truman put it, the buck always stops with the president.

Here, though, the idea that the president could be trusted to supervise Whitaker as he oversees Mueller’s work is absurd.

It was this kind of problem that made me ask whether bolloxing up the legality of Mueller’s action was the entire point (because otherwise I can’t imagine how Emmet Flood bought off on this action, given the troubles it may cause).

But as I’ve said, it actually seems that these issues would create a legal disability on Whitaker’s part, meaning his back-up — Rosenstein — would be required to take over.

Democrats have already asked DOJ’s top ethics official whether he has given Whitaker advice on another possible source of disability, recusal obligations.

I suspect, though, that Mueller will be just one party in a position to argue that Whitaker cannot legally supervise him.

Which, again, is what I don’t mind that Rosenstein sucked up to him so effusively last Friday. Because so long as he remains there, as the Senate-confirmed official with authority to supervise Mueller, he may well end up remaining in that position.

44 replies
  1. Avattoir says:

    Apologies (out of ignorance) if anyone here or Twitland has raised this already, but … What if none of Toad, the WHo of Toad House, Leonard Leo or even Whitaker actually intend for him to actively do ANYTHING about, or with the OSC?

    I mean, it’s Leonard freaking Leo who pushed Whitaker on Toad, it’s Grassley who Whitaker spent the entire last election period driving around Iowa … what is this is really a ploy to turn a nothing c.v. into a sort of not quite nothing c.v. in order to get Whitaker thru a Senate battle for a life-time job as a district court or CCA judge, and otherwise all Whitaker will do is serve as an insult to Sessions, skeer the beejeebers out of libruls and Dems, then make the ‘real’ nom, say in February, look a helluva lot better than otherwise he would?

    • Trip says:

      How are they doing that, though, Avattoir? A guy with a history of cons, scams, threats, no real experience other than personal injury junk cases, a kiss-up, a radical who thinks judgements should be based on the bible and only be carried out by Christians? How do they erase that from his cv?

      • Peterr says:

        They don’t need to, Trip. With this Senate, those are features, not bugs.

        The only thing that has slowed down Trump’s judicial appointments has been manifest unfitness for the position, as, for example, the Honorable Gentleman from Louisiana made abundantly clear, despite sharing a Republican pedigree with the nominee before him:

        Senator Kennedy: Have any of you not tried a case to verdict in a courtroom?

        (Matthew Peterson raises his hand)

        Kennedy: Mr. Peterson. Have you ever tried a jury trial?

        Peterson: I have not.

        Kennedy: Civil?

        Peterson: No.

        Kennedy: Criminal?

        Peterson: No.

        Kennedy: Bench?

        Peterson: No.

        Kennedy: State or federal court?

        Peterson: I have not.

        Kennedy: Have you ever taken a deposition?

        Peterson: I was involved in taking depositions when I was associate at Wylie Ryan when I first came out of law school. But that was, uh . . .

        Kennedy: How many depositions?

        Peterson: I would, um, be struggling to remember.

        Kennedy: Less than 10?

        Peterson: Yes.

        And it gets worse from there.

        Trump has gotten some folks with bad c.v.’s through the Senate, but after Matthew Peterson’s epic fail, I’m sure everyone involved (Leo, Grassley, Graham, oh, and Trump) would rather Whitaker’s c.v. look a little better before putting him forward.

        • Trip says:

          Yes, but I am asking this sincerely, how does this make his resume better? The fact that Trump installed him as an unqualified AG, who everyone railed against?

          I understand they are pushing through the shitstains, but how do they wash this out of him? I mean, they could push him through anyway, without the glaring light on him.

          • jayedcoins says:

            If the plan was/is actually for Whitaker to do the job relatively straight (in other words, no notable difference in handling compared to DAG, or setting this up specifically for a performative recusal)… then in this very narrow discussion, I can make sense of it.

            The problem I have reading it this way is that there needs to be a really good reason to shitcan a long-time party man that embraces the rising far right sentiments and has the fraternal support of the Senate party caucus behind him. The only good reason I can think of is to try and sabotage the SCO investigation.

            • General Sternwood says:

              Sessions might have failed to adequately debase himself whenever Dear Leader bashed his recusal, which is so much more important than those policy and pedigree factors. All politics is loco, as they say.

          • Avattoir says:

            There are several good comments to mine & yours above this one already, but also: bear in mind that Toad is a virtual FONT of wingy thinking. This is someone who at one point during the Trump University litigation repeatedly insulted and attempted multiple times to intimidate or provoke the assigned trial judge, even on ‘his’ side of that litigation attempted to intimidate the Trump U bond insurers and underwriters into picking up his own share of the financial liability, including having that band of feral scum he STILL calls “only the best” attorneys [Now without Mickey Medallions!] go after the trial attorney acted for the insured interests, Daniel Petrocelli. And Toad was who thought Dems and libs would APPLAUD his dumping Comey at FBID.

            Look, I’m not saying, ‘Trust me, this is what’s going on’. But I am saying that, in the now apparently honorable tradition of throwing drats at ceiling fans to figure out WTF the bent, mutilated twisted TOADUS is thinking, “It all fits.” (tho in the case I suggest, better).

    • Eureka says:

      In a related vein- and not incompatible with your musings- I wondered if Whitaker was the Amy Coney Barrett of Kavanaugh.  Not to insult Ms. Barrett, given what we know of Whitaker.  (Though the ‘floated title holder with perceived ‘extra-Catholic’ views’ parallel holds.)  Meaning someone worse is coming down the pike…

  2. flounder says:

    Now that Sessions is not AG, is there anything stopping Mueller from bringing him in to talk about some of the Russian contacts he made?

  3. David Lewis says:

    What a terrible conflict it must be to be at once a more than capable attorney, a person who believes in our form of Constitutional government, and a legal adviser to an ethically challenged man.

    In the coming months we will see how Mr. Flood inter alios managed to balance those objectives.

    Good article.

  4. SirLurksAlot says:

    there is no escaping the fecal event horizon, even antediluvian competence is spaghettified and then turned to shit by Trump.

    Hail Atlantis !

  5. Jockobadger says:

    I’ve been reading the articles and comments here on emptywheel for only a short while, but it makes for terrific reading/learning.  I’ve noticed quite a few comments lately suggesting that Mr. Flood is a more-than-competent attorney who was also suspected of having a few scruples i.e. he’s not a crook.  I certainly hope that’s true.

    I’m not an attorney, I’m just a dumb geologist, but I have had clients in the past who I happily worked for until it became clear to me that they were just plain shady/unethical.  I dumped them.  One of them in particular was certainly fun to work with, engaging, a gifted raconteur/bs artist, etc., but I just couldn’t handle my conscience (plus I didn’t want to lose my license.)  So here’s my question:  what must Mr. Flood be doing/thinking?  I could see working for a POS like trump if only to do my best to undermine him in a sort of Trojan horse way.  Is that what’s going on?  Please speculate for my/our edification.  Has Mr. Flood been made an offer he can’t refuse?  I don’t mean that in the horse-head-in-bed sort of way – more like tons and tons of rubles, I mean dollars?   If you folks have already covered this and I missed it, I apologize.  I did look…..

    Thanks for all the great work and wonderful commentary.  I turned my Dad onto emptywheel recently and he loves it too.

    • David Lewis says:

      Here’s an indirect answer: the literature on the Watergate trial in front of Sirica, the testimony of the players in front of the Judiciary committee, the various rulings are all wonderfully available in almost all cases just by googling.

      It will be months to years before speculations about the current situation, particularly on dicey questions of who was duped, who went along for the ride, etc.  can be done with any degree of certainty.

      That there were people at high levels doing much to expose Nixon and his gang is clear (it must have been heady times for Mark Felt- to push POTUS as he did). That they were all taking a risk however they were playing is also clear. When Director Gray destroyed evidence that was also a big risk too.

      Imagine if they had the internet back then in 72-74.

        • David Lewis says:

          Lost love child of Dan Ellsberg swapped within days of birth in Iowa but after chip from a time travelling Blue Dog was implanted waiting to be triggered at the right moment?


        • Drew says:

          Seriously, I think it is possible that Whitaker had a conversation with Rosenstein and/or Mueller and realized he was in for more serious consequences himself than he had realized. …Something is necessary to explain Trump’s even weirder than usual conduct over the past 3 or 4 days, & it’s at least not impossible that it was news that his desperate gambit of appointing Whitaker has backfired (& some things are happening that he can’t stop, such as the indictment of Jr. or something).

          I mean Whitaker is not so bright or given to real forethought, but a clear explanation of facts and law is probably something that he could take in from a patient tutorial.

    • Kai-Lee says:

      I’ve been wondering about Flood for some time, too. He’s already dirty, surely? And if he makes use of any intelligence gleaned by Whitaker, that could be a problem.

      If memory serves, he was being pressured for awhile before saying no to the job. Then a number of other candidates fell through and pressure was resumed on Flood. I can only think it’s loyalty to the Republican establishment that keeps him in this role. He doesn’t need the money or a promotion, but won’t want a ruined reputation. He certainly has an inkling of how dirty Trump et al are. He’s there to lend legitimacy to the affair, and he’s got a track record of successfully limiting presidential involvement in their own impeachment, isn’t that right? So he must play the three monkeys routine when ensconced at the White House. He can’t walk away clean?

    • Cicero101 says:

      It must have been obvious to Flood before he accepted the brief that his proposed client was a crook. Assuming Flood is an ethical attorney, the only way he could take the brief would be,-

      1. by stating clearly to Trump himself

      2. before accepting the brief

      3. that if he was asked to do anything unethical (illegal is inherent in unethical) and

      4. advised the client the requested action was unethical so would not be done,

      5. but the client nevertheless persisted with the request,

      6. Flood would immediately resign the brief.

      Is there any other way?

  6. harpie says:

    Unrelated Two Tweets:

    Marshall Cohen,  9:37 AM – 12 Nov 2018:

    Today is a federal holiday, but at least five of Robert Mueller’s prosecutors are working today at their office in downtown DC. (h/t @emsteck)

    MLevineReports10:01 AM – 12 Nov 2018:

     Michael Cohen, Trump’s former personal attorney, mysteriously arrives in Washington: [ABC News]  

  7. Rugger9 says:

    McConnell and Ryan will set up a lame duck session to minimize the efforts of the Ds to investigate Kaiser Quisling, pass another tax cut and do all of the things they will be stopped from doing come January.  That’s why boasting about who’s getting subpoenas is counterproductive.  However, I do not know if there is still a threshold for a quorum where the Ds could stop this from happening like they did in WI years ago by just not being there.

    Of course Kaiser Quisling skipped his duties in France (allegedly because his hair would get mussed up).  I think the best comment on that was the one about the trip being his own “personal Verdun”.  As a Cold War vet myself I’m also not amused to see that rain in Arlington prevented him from laying the wreath at the Tomb of the Unknowns.  For someone who claims to be “vet friendly” he isn’t doing much that is substantial, like going after the foreclosure mills ripping off servicemembers in the “sandbox” or repaying those ripped off by TrumpU, etc., etc., etc…

    It was also rich seeing Rep. Gates (who’s up to his eyeballs in Soviet Russian shenanigans) protesting about the elections in Florida.  His handler must have told him to go.  Count the votes, dammit.

    Now that Sessions is a former administration official (and I do think the timelines EW pointed out earlier will bite the palace’s DOJ in the arse) there is nothing stopping Schiff and Nadler from hauling him in to explain his inconsistent answers.  This would be something I expect the lame duck session to do: pass some law to prevent subpoenas and/or permit use of executive privilege without any legally vetted justification.

  8. General Sternwood says:

    No visit to Arlington National Cemetery on Veteran’s Day, right after getting Trump’s head was handed to him for not visiting the cemetery in France:

    Josh Dawsey @jdawsey1
    A lid at 10 AM. Trump will have no movements today, per White House.

    This is fine.

  9. Trip says:

    Konstantin Kilimnik: elusive Russian with ties to Manafort faces fresh Mueller scrutiny

    New details emerge about 48-year-old said to have ties to Russian intelligence, including the use of a private jet owned by an oligarch close to Putin

    Supposedly it is confirmed by another story in Vice. Does this contradict the “Manafort isn’t cooperating” theme or was it put out there to put pressure on him since he’s not cooperating?
    Early August would be the same time Kushner and Junior were meeting the former Israeli intelligence guy and Nader, set up by Prince.

  10. Thomas Paine says:

    Quorums in the House and Senate floor votes are simple majorities – 218 for the House and 51 for the Senate.  However, the Democrats in the Senate can filibuster just about anything the GOP tries to pass between now and year end.  The 2017 and 2018 Budget Reconciliation shenanigans used up the GOP’s filibuster-proofing for this Congress.  The only thing the GOP passed was the budget-busting tax bill.

  11. Trip says:

    Whatever happened to the DC Reports story about (flight paths/landings of) Russian oligarch jets intersecting with the Trump campaign? For some reason, I can’t find it. Only a mention of it from a Maddow show in March 2017.

  12. Dear Abbey, Dear Abbey, my feet are too short says:

    rollicking good, roaringly great, rip roaring backs and forths..

    v insightful from all of us..pip, pip cheerio and all of that.

    in spite of this Marcy seems to be about sticking on the main point.

    stay on the King..check the King..check, check..mate the king.

    Pretty depressed.. can’t sleep, go on my Trump walks regular now at the 3 AM.

    both my daughters, 20 and 24 want to leave the good old US of A and become European citizens.

  13. J R in WV says:


    I remember those stories, about Russian registered aircraft landing, a Trump aircraft landing, no one departing the tarmac, then one by one they take off again. Hmmmm. What could that have been? Handed off a physical message, no electronics for No Such Agency to detect?

    But I have no idea where I saw those reports… too long ago… too old a brain. On a completely different topic, I must say Trump’s smile at seeing Putin, while the rest of the world’s leadership looked stern, hostile, even. That was sweet, Trump the solo smile for Putin’s arrival. Why does Trump make everything look so guilty? I must guess he can’t help it, he just reacts the way he does, every time.

    Perhaps that’s the whole explanation for the new Acting AG – just an idea which Trump couldn’t put away?

  14. johndallascpa says:

    Here is one link to the mystery plane.

    “Russian billionaire Dmitry Rybolovlev says he has never met Donald Trump. He bought a Florida mansion from Trump in 2008, and his jet was at the Charlotte Douglas International Airport when Trump’s jet was also there in November 2016. Lionel Cironneau AP”
    “A Russian billionaire, whose jet-setting travel intersected with Donald Trump’s stops at the Charlotte and Las Vegas airports during the presidential campaign, says their intersecting paths were “pure coincidence” and nothing more.” from another report. 
    Dmitry Rybolovlev is currently in the news regarding a billion dollar art scandal and corruption in Monaco.  Appears he was purchasing art  and it turned out to be fake.  He is the Russian that bought Trump’s Florida mansion for 95 million!  I think he torn it down and subdivided the land.    

  15. Anon says:

    This may be just rampant speculation but as I see it there are two plausible explanations for Whitaker’s appointment. The first is a desperate ploy for chaos. I.e. things are not going well and someone concluded that putting him in would at least reshuffle the deck enough to delay matters or perhaps change fall of the cards. The second, and I think more likely, is that Whitaker, as with many others, was selected for loyalty and a promise he may have made to “fix the problem” where others could not. Whitaker’s thin resume and long history of trumping things up seems to suggest a man who is comfortable making claims he can’t back up. Why not do the same to attain status at the DOJ?

    With that in mind I feel like this is unlikely to be a case where Trump listened to the sage advice of his competent lawyers and then chose Whitaker and more like a case where he listened to his gut and chose someone who made him big promises that they cannot or will not keep (e.g. Un).

    I say that because I don’t see any way that this type of chaos will help a well-constructed case. But I do see how it fits with Trum’s established pattern of impulsively going on the promises of syncophantic con-men who tell him what he wants to hear (e.g. Miller & Bolton). As to Leo’s stamp of approval, Leo is after all an ideologue. The Federalists were sold on the other gross incompetents that have been put forward before now. Why not this one? After all his claims of state-level nullification would be music to Leo’s tin ears.

  16. Mark Ospeck says:

    simple questions: Say this Friday Mueller indicts say Stone or Trump Jr. Does Whitaker have to sign off on it?
    What if Whitaker refuses? Is he then immediately charged with obstruction of justice? How does his lack of constitutional standing effect this OSC approve/disapprove sort of thing?

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