What OLC Says Happened with Matt Whitaker’s Appointment

DOJ has released the memo they say justifies the appointment of Matt Whitaker to be their boss. I’ll have some things to say about the legal arguments later (and smarter people who have JDs will surely weigh in as well).

I’d like to look at four things the OLC memo says about what happened with the Whitaker appointment, because they’re at least as important as the legal argument.

Never in the history of DOJ has someone attempted this stunt

Much of the memo reviews the history of appointments, purporting to find analogous appointments to this one. But it only cites one example where someone who wasn’t Senate confirmed served as Acting Attorney General.

While designations to the office of Attorney General were less frequent, we have identified at least one period in 1866 when a non-Senate-confirmed Assistant Attorney General served as Acting Attorney General.

The Department of Justice didn’t exist in 1866. It was only authorized — significantly, for the purpose of giving the Attorney General supervision over the US Attorneys — in 1870.

In 1861, Congress finally agreed that the Attorney General should have supervisory powers over the work of the United States Attorneys, although at first this role was shared with the Solicitor of the Treasury.

While there had been earlier calls for the creation of a separate legal department that would supervise the work of federal lawyers, it was not until after the end of the Civil War that Congress began to give serious consideration to the matter. In late 1867, the Senate Committee on the Judiciary asked Attorney General Henry Stanbery to respond to several questions concerning the efficiency of the government’s legal departments. Stanbery replied that a solicitor general was needed to argue the government’s cases before the Supreme Court, and that the centralization of the government’s legal business under one department would improve the quality of the work. In 1868, after the House Judiciary Committee asked Stanbery to respond to a similar inquiry, Representative Thomas Jenckes of Rhode Island introduced a bill to establish a department of justice. This bill was referred to the Joint Select Committee on Retrenchment, a committee impaneled to consider legislation to reduce the size and cost of government. In addition, the Chairman of the House Judiciary Committee, Representative William Lawrence of Ohio, introduced a similar bill which was referred to that committee.

As I’ll return to when I get to the legal issues, the distinction between this appointment, which gives Whitaker supervisory authority over SDNY and Mueller, and that one, may be very important.

But for now, suffice it to say that even OLC admits that this has almost never happened before.

The White House asked for this opinion

I’ve been harping on this line of the CNN report describing Jeff Sessions and those who would like to protect the Mueller investigation a lot.

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.

Steven Engel, the guy who signed this memo, was in that room, along with Sessions, Deputy Attorney General Rod Rosenstein, Solicitor General Noel Francisco, and Rosenstein’s deputy Ed O’Callaghan. The story suggests that Engel hadn’t considered the question yet, and I’ve been wondering since that report whether one of those men asked for the memo.

They didn’t — at least not according to this memo.

This Office had previously advised that the President could designate a senior Department of Justice official, such as Mr. Whitaker, as Acting Attorney General, and this memorandum explains the basis for that conclusion.

It is addressed to the “Counsel to the President,” which strongly implies that person asked for the memo. It doesn’t say, however, when the Counsel to the President asked for this memorandum.

Emmet Flood is the Counsel to the President who asked for this opinion

More specifically, the memo is addressed to Emmet T. Flood Counsel to the President.

Emmet Flood has two roles in the White House now. Until Pat Cipollone is installed as White House Counsel, Flood is Acting White House Counsel (or, as addressed here, Counsel to the President, which is how OLC addresses the White House Counsel).

But he’s also the lawyer in the White House Counsel’s office in charge of defending the President in investigations by (among others) Robert Mueller.

Legally, that’s interesting but (because the President can appoint whoever the fuck he wants as White House Counsel) not all that important. But it does answer the question I keep asking — given what a clusterfuck this appointment is, was Emmet Flood, who is eminently competent, involved? Yes — at least by the time the White House realized they needed some legal cover for it.

So maybe Flood really was hoping to create a legal morass.

Jeff Sessions resigned, probably

Finally, the memo answers a question that the House Judiciary Committee has already raised some doubt about: whether Sessions resigned, or was fired. The memo explains,

Attorney General Sessions submitted his resignation “[a]t [the President’s] request,” Letter for President Donald J. Trump, from Jefferson B. Sessions III, Attorney General, but that does not alter the fact that the Attorney General “resign[ed]” within the meaning of section 3345(a).

But it doesn’t seem so sure (or at least recognizes that someone, and probably not just HJC, will challenge this legally). It continues:

Even if the Attorney General had declined to resign and was removed by the President, he still would have been rendered “otherwise unable to perform the functions and duties of the office” for purposes of section 3345(a).

As I’ll return to in the legal analysis, the remainder of the footnote, which claims the Vacancies Reform Act still would have permitted the appointment of Whitaker, is one of the most problematic parts of the memo.

Which is why it is notable that the memo dodges most analysis of whether a forced resignation really is legally a resignation.

87 replies
  1. flounder says:

    Seems pretty clear that you need a principal officer between Mueller and the President on the org chart. So even if they manage to stall on Whitaker as temp AG, this memo doesn’t lend any cover for him overseeing the Russia Investigation.

      • jf-fl says:

        Everything this admin does is banal instinct, followed by legal covering and hand-waving (always after the fact).   The travel ban- they didn’t care if it was legal, they just did it and reverse engineered their explanations until it stopped getting struck down by courts.   Detention policy likewise was not part of a grand plan, just wanted to troll liberals and use current illegals as a way to signal deterrents to future illegals.   Only when challenged did they bend, kinda-sorta-backdown, and no doubt wait until the next chaos cycle begins before forgetting about first outrage.

        WHC EF is a competent lawyer, one of best remaining in any of Trump’s legal orbits.  Reading both of your articles on this temp AG appointment…  you haven’t presented anything to suggest he’s suddenly changing this admin’s tactics from seat-of-pants to planning and approval.    You clearly like this idea but your motivations nor your analysis is up to your normal standards in my view, esp on Russia.   I have no idea why, but the simplest explanation is that you have more of a political reason and your writings here are based less on reporting on mueller investigation and more on some political result.  Some other people here have speculated flood is important to other parts of GOP agenda, so I’ll assume this is less about russia and more about kavanaugh redux.     Unfortunately it’s tagged as a mueller post though.   Usually the political articles are easier to ID on ew.

        Thanks for your efforts on russia investigation.

      • Someguy says:

        I’m not sure @jedshug’s error is that significant.  He points out that OLC says 508(a) “cross-references” sec. 3345 of the VRA and that’s impossible because VRA was enacted in 1988 but 508(a) was enacted earlier and not amended after VRA, so how could it “cross-reference” a statute that wasn’t enacted yet?  But 3345 preexisted the VRA.  Pub.L. 89-554, 80 Stat 387, 425 (Sept. 6, 1966)  provides:

        sec. 3345.  Details; to office of head of Executive or Military department

        When the head of an Executive department or military department dies, resigns, or is sick or absent, his first assistant, unless otherwise directed by the President under section 3347 of this title, shall perform the duties of the office until a successor is appointed or the absence or sickness stops.

        So, although 508(a) predates the VRA, it does cross-reference (the pre-existing) sec. 3345, and I think that the purpose for which it does so, the reference to “first assistant to the Attorney General ‘for the purpose of section 3345 of title 5” seems like a valid reference.  OLC’s error was to say it was 3345 of the VRA, instead of clarifying that it was the prior 3345, but I don’t think that’s some huge legal error.


  2. BobCon says:

    If Flood did get actively involved with the intention of causing a Mueller morass, that’s a pretty dark sign. There is the potential for a lot of collateral damage to the GOP agenda by having DOJ actions during Whitaker’s time called into question. The guy literally pushes crackpot theories about Bigfoot and time machines – if Flood genuinely sees a strategy in naming him, then Flood is going Joker on Gotham City.

    • Trip says:

      If Flood is doing any of this with that motive in mind, I suspect it isn’t for Trump, but somehow for McGahn, Leonard Leo, Kavanaugh, and that cast of characters.

      • Jenny says:

        Trip good point.  I just finished the book Blinded by the Right:  The Conscience of an Ex-Conservative by David Brock.

        From the time Brock was a fixture in the conservative movement in the 80’s and  90’s, those you listed are in the book.

        Excellent book; however disturbing considering the cast of characters are still around.

      • Anon says:

        As I argued elsewhere I think that if Flood is going for hand grenade in the dark room strategy he is well and truly desperate for anything. Far more likely (to my armchair speculation) that it was a done deal and he is now covering for it.

        As to Leo and McGahn have backed some serious wingnuts before because their views aligned with them so I would be inclined to agree with you that they would be on board.

    • earlofhuntingdon says:

      Intentionally creating a “legal morass”, which would put in jeopardy all acts done by or authorized by this purported Acting Attorney General.

      How does that not implicate both obstruction and ConFraudUS?  Depriving the US of a functioning Department of Justice – the wet dream of every abusive polluter, SEC violator and tax cheat, drug lord, organized crime figure, lobbyist, and common criminal – would seem more problematic than “merely” obstructing Bob Mueller’s investigation.

      One possibility is that the Don was determined to do this and Flood, as acting senior counsel to the presidency, merely gave him the best possible option and rationale among the poor ones available.  In that case, I hope Flood has some good tapes or file memos to back that up.

      • pseudonymous in nc says:

        Can’t be convicted of obstruction if you obstruct the obstruction investigation.

        If this is Flood deliberately teeing up a “Super-Concord” challenge to Mueller’s authority so that Booze O’Kavanaugh can cast the decisive SCOTUS vote to shut it down then it’s evil genius and we’re all fucked. I’m still inclined to see it as flailing incompetence… for now.

      • Peterr says:

        This is one of the best CYA memos I’ve seen in a long time. The opening paragraph of the memo says as much: “This Office had previously advised that the President could designate a Senior Department of Justice official, such as Mr. Whitaker, as Acting Attorney General, and this memorandum explains the basis for that conclusion.”

        To me, this reads like OLC saying “POTUS had clearly made up his mind, so we said ‘fine, go ahead,’ but with the firestorm that emerged, we now will share our work to make it appear that more thought was given to it.” In an ordinary administration, the appointment would have been made after the memo was written, not before. This strongly supports the CYA purpose of this opinion.

        Oh, and Marcy — it looks like someone is at least trying to put a date on Sessions’ resignation: “After Attorney General Jefferson B. Sessions II resigned on November 7, 2019 . . .”

        • Avattoir says:

          Likewise that passage you focus on is, uh, ‘not inconsistent’ with a verbal confirmation from OLC to someone in (or claiming to be calling on behalf of) the WH, to this effect: Look, that fatass toad can appoint Jeanine Pirro if he wants, he’s the preznit FCOL – but that doesn’t mean it’ll go missed or that there won’t be objections maybe quite serious ones, or that there won’t be big freaking constitutional issues depending on what the appointee does or tries to do in that role.

      • Avattoir says:

        Another possibility is that the idea of Whitaker or someone like him (but probably, nah, Whitaker all along) being appointed was raised by or around Toad while McGahn was still techically WHc, whereas the ‘real’ author of the inquiry down into the DoJ bowels to OLC, despite whatever titles happened to be involved, was actually Leonard Leo, with, to the extent necessary to get the answer back, Flood cooperating because Chico hasn’t arrived yet. OR added to that, that Flood’s cooperation in this regard would be consistent with Flood then leaving the WHc temp role and the new guy strategically serving ‘clean and clear’ of this particular wet work.

          • Avattoir says:

            Oh, com’on, who among those near the Toad would have a sufficient insight into the embeds & minions working in the OLC below Engel: I mean, you’d have to have the feverish agenda-ridden interest and moral failings of a Leonard Leto to keep an active file on THOSE dweebs.

            • Peterr says:

              Let’s see . . . if you’ve got to keep track of the political trustworthiness of DOJ folks, you have to go with the folks who have experience in doing just that. But where are they now?

              Kyle Sampson, former chief of staff to AGAG who led the ill-fated purge of US Attorneys for political purposes, is now a partner at King & Spaulding, where he “focuses on Food and Drug Administration regulatory, compliance and enforcement issues. As a partner in our FDA and Life Sciences practice, Kyle represents companies in the full range of regulatory and enforcement issues.”

              And then there’s Monica Goodling, who carefully tracked the political reliability of DOJ staffers and applicants at the same time, now works (per wiki, under her married name of Krempasky) at Corallo Media Strategies, a firm set up by former Trump legal team spokesperson Mark Corallo. Recall, too, that Corallo was Rove’s PR guy during the Scooter Libby trial.

      • BobCon says:

        I agree there are a lot of fraudsters out there who want to see DOJ in an uproar, although the way DC works, there is a boatload of the GOP donor class on the other side. Corporations needing DOJ action on antitrust issues, IP regulations, etc., are dreading either adverse action or just delays due to the unclear status of the AG.

        Still I would bet the situation is similar to what’s going on with tarriffs – a lot of businesses which are getting clobbered by the supposedly pro-business GOP will keep their carping to a minimum and hope they can wait things out.

      • Allison Holland says:

        you are presuming they are patriots.  i do not think that you should.  too many of the men named above want to restore a christian remedial scheme for the dominion over women,  “lesser races” as they see others and the earth with them at the pinnacle for our illumination. America is simply geographical.  i cant see any of them sacrificing anything for anyone and that is the very nature of patriotism.  legal morass is unalarming to them. total morass is what they need.

  3. Trip says:

    Even if the Attorney General had declined to resign and was removed by the President, he still would have been rendered “otherwise unable to perform the functions and duties of the office” for purposes of section 3345(a).

    Well, a person who got fired can’t perform the functions and duties of the office either, but wouldn’t that then require Senate confirmation? It’s not like Sessions was shot, was physically incapacitated refused to go and an emergency arose. It’s not like there was any policy Sessions initiated suddenly, and contrary to any previous policy that necessitated his abrupt removal right after the midterms. Further, if that had been the case, why wouldn’t the next in command be put in place temporarily? Again, I’m not a lawyer, but this just sounds like “Trump can do whatever he wants just because…”.

    • Cicero101 says:

      This argument by the OLC is obviously a bootstraps one. The inability provision must surely be applicable to a period when the person holds the office. It’s nonsense to say it continues to apply after they cease holding the office.

      However, I’m of the view Sessions resigned. He had a choice when his resignation was “requested” ie either to resign or to refuse and be fired. He is presumed to know the difference between the two so far as his replacement was concerned. He elected to resign thereby giving Trump the greater leeway with his replacement.

    • Allison Holland says:

      i would just like to point out that what happened to jeff sessions by trump happens to women all the time. they are forced out when a very wicked boss or professor doesnt get what he wants.   i think it fitting that he was so hounded and abused verbally by a troll of a man.  of course he was forced out.  i am sure flood told the president that sessions under no circumstances could be fired outright. but sessions, i think,  like many women in his position was just simply worn down. he did the best he could. he ruined many lives, destroyed families, environments and habitats,  he tried to destroy voting rights and civil rights in general. he got so much done.  but he knew his public humiliation was going to get worse and i just dont think he could take it anymore.  i know its off point except for the fact that i think he resigned unwillingly. and that should be construed as being forced out, as being fired. so there was no need for an emergency appointment. because the emergency was created so the vacancy itself would the emergency. that is how a layman, a non lawyer sees it. i think.

    • Rugger9 says:

      I think that gives the game away regarding Whitaker’s purpose as AAG: he’s the hatchet man.  Otherwise I would suspect that Emmet Flood (if not there as a figurehead) would not have signed off on this chain of events.  There is a risk that Flood himself would leave if his license is in jeopardy due various illegalities.  If the claim still can be made that a known precedent is not in play, Flood stays.  If not, Flood needs to leave IMHO and he’ll probably blowtorch Kaiser Quisling on the way out in an op-ed or something.

      The question of whether a forced resignation is really a firing must have been litigated many times in labor law as companies make changes for the reasons they do and the victims sue about it.  I suppose (IANAL) that the useful question is jurisdiction in Sessions’ case, i.e. does DC law recognize this undated resignation at the request of KQ as a de facto firing?  Or, is this a case where the “pleasure of the President” changes the picture?

      On the current palace intrigue, as bad as Nielsen is, Homan as head of ICE is worse enough to have never faced confirmation (he was “acting” before withdrawing) and was quite cruel there.   It would be a long debate about whether he or Miller is more rabid about the border.

  4. Trip says:

    Katyal suggesting that Whitaker wrote it:

    Neal Katyal‏Verified account @neal_katyal

    No one should be surprised OLC wrote this. OLC literally writes opinions FOR the Atty General by law. So this is just Whitaker writing an opinion saying he is constitutional. Sometimes indiv OLC folks dare to take difft view, not this Admin. And…this is the best they could find?https://twitter.com/neal_katyal/status/1062746308362924032

    • earlofhuntingdon says:

      I would guess that this is better writing than Whitaker normally comes up with.  Plus, this sort of material seems outside his usual workload.  If he wrote it, he probably had some help.

      • Drew says:

        Yes. But the way I read Katyal is that Whitaker walks into the OLC and says-“This is what you need to say. Write it and give it to me for approval before sending it out.” Perhaps standing there while they write it. It’s his reasoning & his assertions, not necessarily his prose.

  5. BroD says:

    Perhaps it’s laudable in a way that Flood is willing to look like a fool by making the best possible (pitifully silly but not unethical) case in accord with his clients wishes.

    • earlofhuntingdon says:

      Well, that’s bread and butter work for a lot of lawyers, especially those with wealthy clients who want what they want when they want it, but who have no sense of the processes required to meet their needs.  Donald Trump comes to mind, but he’s worse than most lawyers ever need to deal with.

      • Trip says:

        It may not be strictly unethical as far as “lawyering”, but it is grossly unethical in the larger view of fucking over the entire country. So there’s that. I know someone will say that everyone deserves good representation, yadda yadda, but Trump has been so damaging to the rule of law in general, it should be a giant conflict for a lawyer to even consider wanting to work his angle.

        • earlofhuntingdon says:

          As Rumpole says about his clients as a barrister/litigator, he’s a taxi waiting in the rank.  He takes the next customer who comes along, whatever their wants, and argues for him or her as best he can.

          Lawyers can and do decline clients: a lot of lawyers have and would decline to work for Donald Trump personally or as president.  But a lot of lawyers haven’t the luxury.  Work is work.

            • earlofhuntingdon says:

              Flood must be honoring markers from the powers that be.  His working for the Don would be to protect their interests and the power of the presidency.

              After all, if the Don goes down in a blaze, a lot of the GOP – and those enriched or protected by their its – would be incinerated with him.

          • Lulymay says:

            I so enjoyed watching Rumpole, especially his “she who must be obeyed” response to just about everything.  However, he was at the Old Bailey,  and  you poor folks down below the 49th are having to experience all of this in real life, and just have to say that I worry about all of you!  Still, I wend my way down I-5 every year to enjoy your sunshine as well as your local folks where I stay.

            Am very worried about all the people that are experiencing the results of these runaway fires causing to much death and destruction in California.

  6. Rugger9 says:

    Apparently there is another section (508 IIRC) that also clearly points out that it applies to the AG, whereas 3345 and another 3000-level section cited frequently make clear the AG is not included in their lists.  Whatever the precise sections are, EW’s point about OLC admitting they’re in the legal limbo undermining their claim is apt and even SCOTUS might be unwilling to advertise their partisan hackery without a better grounding.  RBG and Elena will flay any sloppy opinion even if they don’t win the vote.

    Since MD and San Francisco are already challenging the Whitaker appointment, I suspect we will see some movement quickly and since two appellate districts are involved it will get to SCOTUS quickly as well.

    OLC has been the place where many dubious legal opinions get hatched, IIRC it was something of a running joke when Darth’s administration was running things and needed legal cover. Given how much worse Kaiser Quisling is (not excusing Darth Cheney or Shrub in the least), I’m not surprised he went there for getting his way legally blessed. It’s what the OLC does.

    • Avattoir says:

      One thing that can be said in favor of Justice Thomas is that he is at least consistent in his writings AGAINST the notion that someone like Whitaker can take over most if not all AG functions. And in those, he’s found some support in the past from CJ Roberts. Plus – I’ve made this point before – if one were to go thru all that Kavanaugh has written on the subject of agency head primacy in the milieu of federal administration, much of it in dissent from his DCCA seat but otherwise in writings he’s published, he’s also someone who’d be compelled to starkly abandon several key positions he’s taken on the theory of judicial review of administrative action thru federal agencies. The only current SCOTUS judges who haven’t written opinions that they’d have to foreswear from on a challenge to Whitker’s authority are Alito and Gorsuch – the latter because his legal reasoning is often that of a twisted quisling and the former because he’s a full president is emperor dude.

      I should expect Maryland and SF to be joined by a lot more state and municipal entities in any challenge to Whitaker’s authority – but the problem is that federal courts may decline to do anything until Whitaker steps in it.

      • BobCon says:

        I think it’s also the case that the politics are pretty muddled for conservatives. They’re aware of what a Democratic president could do if he or she could essentially skip Senate involvement and appoint an endless string of acting Department heads.

        I suspect the risk to Mueller from the Supreme Court is probably a bit lower than it was a year ago for similar reasons. If Trump continues to suffer politically, it’s going to be hard for conservative justices to completely hinder Mueller if they want to preserve the possibility of a new Ken Starr to harass a president Gillibrand, Warren or Booker. Not impossible, but certainly something to think about.

          • BobCon says:

            You’re talking about the Supreme Court, though. I think Roberts in particular thinks in political and institutional terms about how to maintain and expand conservative power, and in the face of a decent chance of a Democrat in the White House in two years, I think he would be reluctant to weaken the hand of the GOP to push for investigations of Democrats. Kav is probably persuadable, given his tenure as a weasel for Starr, and I suspect Gorsuch may be too.

            That’s not to say they don’t come up with some narrow grounds for hurting Mueller’s work, but even then, at this point in time, I suspect they have reason to worry about squashing Mueller if Mueller can deliver serious dirt on Trump.

            I think Roberts is keenly aware of the impact of SuCo rulings on electoral politics, and he kept Obamacare alive in large part because he knew the blowback that would happen if it was killed. He successfully kept the Court from being a rallying point for Democrats in 2016, and I suspect he’s eager to do the same in 2020.

  7. earlofhuntingdon says:

    The frequent use of the passive voice indicates a lot of gaps in the factual support for the OLC’s arguments.  It also avoids acknowledging or admitting a lack of knowledge about certain facts.

    There’s the verbal wordplay, too, as in the reference to an historical “period” of time to refer to a single instance, 150 years old, which could probably be factually distinguished from the Whitaker example without much work.

    • Peterr says:

      Most critically, the passive voice avoids the question of agency and accountability. “Decisions were made . . .” but by whom? “Mistakes were made . . .” but who made them?

      Again, this is a classic CYA memo, and in most cases you can’t cover your ass without generous use of the passive voice. The bottom line of this memo was predetermined (“it’s got to end with ‘. . . so Whitaker’s appointment is legit'”), and the author is struggling to get to that bottom line without revealing just how weak their position is. If there are problems, the passive voice allow you to make them appear as if they appeared out of thin air.

      Call it the “Immaculate Deception.”

  8. earlofhuntingdon says:

    MTP thinks Liz Cheney is the most interesting person now in Congress: smart, savvy, says what she thinks?  She’s new news?

    Chuck Todd has a limited a sense of history, politics, and Congress as Donald Trump.  Ms. Cheney is her dad in a skirt: arch-conservative, arrogant, entitled, dismissive of others’ views.  There’s nothing new there, unless you haven’t been looking.

      • Trip says:

        Chuck Todd almost always has the rightwing talking heads on his show. He balances ‘the sides’ by having several of them.

      • Jenny says:

        Yes, and let us not forget Lizzy’s statement:  I don’t believe in lynching, I just don’t support legal action taken against the KKK.

        Yep, that speaks volumes.

    • BobCon says:

      She’s maybe half as savvy as him, though. He was White House Chief of Staff in his 30s before going on to his other major jobs. She would have achieved almost nothing without being his daughter. She’s the equivalent of a bunch of RFK’s largely unimpressive kids.

      • earlofhuntingdon says:

        Big Dick became WH COS because he held onto Don Rumsfeld’s coat tails, and because the GOP was in disarray and counting on interim president Gerald Ford to tread water (and to pardon Nixon, so as to bury his crimes) until the next election.  Those were not normal times, either.

        • BobCon says:

          You’re right he had the opportunity of being around at a time when the GOP was severely depleted, but he still did a credible job, as he did at DOD and Haliburton. Liz struggled to run a Senate campaign in a state where you need a media budget of about 38 dollars and her last name was legend. She’s impressive to Chuck Todd, people like Chuck Ross will print what she says, but I think she’d have trouble running the skeeball games at Chuck E. Cheese.

          • Peterr says:

            In her Senate race, she lacked a Wyoming address and acted as if all she needed to do was say her last name three times while clicking her heels together, which kind of put a dent in her campaign. Wyoming does not take kindly to tourists who pretend to be residents and put on airs while doing so. To her credit, and the nation’s detriment, she worked hard to overcome those earlier missteps and was then elected to the House.

  9. Rapier says:

    This will all be on page three if and when Mueller issues indictments.  I mean  “if” seriously. Or, who says there is zero chance Mueller stands down now?  It seems ridiculous but….

    • Rugger9 says:

      I would not be surprised to find out it was a set up like Stormy’s indecency bust in Ohio.  However, Avenatti’s not going to be able to run for office until this is done or he becomes a Rethug (IOKIYAR).

      What will this do to Daniels’ case?  I don’t think much will occur, if he has other attorneys in his law office.  At the most Daniels will just substitute her attorney and move on. Her case already has much of the evidence in exhibits, I would guess.

  10. Trip says:

    Esquire‏Verified account @esquire

    UPDATE: An earlier version of this article referred to Matthew Whitaker as a football “star.” With 200 yards and two touchdowns in three seasons at Iowa, it appears he was an unspectacular player. We regret the error.


    • earlofhuntingdon says:

      Is he supposed to rush for yards and score touchdowns as a tight end, if that’s what he was?  I thought an original criterion for his football prowess was that he played in the Rose Bowl.

      He certainly comes across as a guy more interested in ambitious networking and toadying rather than lawyering.  A good reason not to make him a federal judge and a better reason not to make him Attorney General, even for a holiday to help Donald Trump stay in office and out of prison.

      • Rugger9 says:

        He’s there to do a task, nothing more, and the Federal bench is his reward.  Since Schumer cut his deal, he’d get confirmed for it too.

  11. earlofhuntingdon says:

    At what point is Donald Trump engaged in an attempted coup?  When he fires his Attorney General for doing his job and not protecting Trump ahead of any other goal?  Probably not.

    When Mitch McConnell prevents legislation protecting Bob Mueller’s investigation from going forward?  When Trump refuses to sign any such legislation?  Pick your red line, because we’re a little past, “ignoring presidential norms.”

    • Eureka says:

      Yeah I heard Flake peeped up and claimed ‘No more judges unless we vote on protecting Mueller (dammit).’

      But didn’t Flake say the same thing about tariffs and no more judges? X judges ago?

  12. Watson says:

    OT: I gotta think that if Michelle Obama had publicly demanded the expulsion of an NSC deputy, the MSM would be overflowing with indignant condemnations featuring numerous synonyms for ‘uppity’.

    • new-radical says:

      Has there been a comment that Mira Radielovic Ricardel is of recent Croatian heritage, whilst Melanoma is Slovenian. I wonder what their family histories might contain.

      Just a thought.

      • General Sternwood says:

        A good thought, I think. From Bloomberg:

        Serbian President Aleksandar Vucic, a close ally of Dodik’s as well as Putin’s, has floated the idea of a land deal with Kosovo—which is predominantly Albanian—that would allow his country to absorb much of its Serb population. Trump’s security adviser, John Bolton, said the U.S. would be open to the border changes.

        A lot is at stake in effectively redrawing the Dayton Accord borders.

  13. Nopants says:

    What was Trump’s score on his 4th grade California Achievement Test? And was his score higher on his 5th grade Mueller Achievement Test?

  14. Trip says:

    If you haven’t read this article on Facebook, Zuckerberg and Sandberg, it is a must.
    Delay, Deny and Deflect: How Facebook’s Leaders Fought Through Crisis

    The headline severely underplays the lies, cover-ups, and obstruction Facebook spewed/exercised about being unaware of Russian influence early on, the use of shitty (rightwing) lobbying propaganda to protect itself from criticism, including the popular Soros conspiracy, with a handy assist from Chuck Schumer (who got more campaign financing than anyone else from Facebook in 2016, and an added incentive that his daughter works there as a Marketing Manager. Aside: People complain about Pelosi, but it is Schumer who should be put out to pasture by the Dems. His constituency is, in order: himself, his family, and Wall Street).

    And it gets worse, in the goal of profit with outright indifference, FB was warned by activists in Myanmar, India, Germany and other places that it was being used for gov’t propaganda and ethnic cleansing. They did nothing. They also left up hateful words about Muslims, spoken by Trump. All of which was summarily disregarded.

    Facebook had positioned itself as a platform, not a publisher. Taking responsibility for what users posted, or acting to censor it, was expensive and complicated. Many Facebook executives worried that any such efforts would backfire…In the end, Mr. Trump’s statement and account remained on the site. When Mr. Trump won election the next fall, giving Republicans control of the White House as well as Congress, Mr. Kaplan was empowered to plan accordingly. The company hired a former aide to Mr. Trump’s new attorney general, Jeff Sessions, along with lobbying firms linked to Republican lawmakers who had jurisdiction over internet companies

    And a reminder about how Zuckerberg felt in the beginning about users on his platform:

    Zuck: Yeah so if you ever need info about anyone at Harvard
    Zuck: Just ask.
    Zuck: I have over 4,000 emails, pictures, addresses, SNS
    [Redacted Friend’s Name]: What? How’d you manage that one?
    Zuck: People just submitted it.
    Zuck: I don’t know why.
    Zuck: They “trust me”
    Zuck: Dumb fucks
    ~Gawker, 05/13/10


    The apology tour was nothing short of a mountain of bullshit, covered by politicians in the pocket. Drop Facebook on its head.

    • earlofhuntingdon says:

      So, do you think untold wealth and power have made Zuck more humble, less prone to use his political power to keep the riches coming in, and to use that power to give effect to his innermost desires?  Or is he a garden variety megalomaniac?

    • Trip says:

      Mark Zuckerberg ‘not able’ to attend international disinformation hearing

      The Facebook CEO declines a five-parliament invitation to appear in London.
      Damian Collins, chair of the committee, is leading the charge and noted that the social network’s response is “hugely disappointing.”
      “The fact that he has continually declined to give evidence, not just to my committee, but now to an unprecedented international grand committee, makes him look like he’s got something to hide,” he said in an emailed statement.” https://www.cnet.com/news/mark-zuckerberg-not-able-to-attend-disinformation-hearing-despite-growing-call/

  15. Greenhouse says:

    November 15, 2018 at 7:48 am

    I’d add just one more to the list of Schumer’s constituents: AIPAC

  16. Trip says:


    Brian Beutler‏Verified account @brianbeutler 3h3 hours ago
    Brian Beutler Retweeted Judd Legum

    It’s a real shame no one ever invented a virtual “engine” that allows decision-makers to “search” for important information and recent developments.

    Judd Legum‏Verified account @JuddLegum

    UPDATE: Google claims they were not aware of Hyde-Smith’s lynching comments at the time of their $5000 donation and would not have donated to her had the company known about them


  17. Trip says:

    Wherein Trump gives away the obstruction game (this time with Whitaker) again, unsolicited:

    THE DAILY CALLER: Sure. Could you tell us where your thinking is currently on the attorney general position? I know you’re happy with Matthew Whitaker, do you have any names? Chris Christie — 
    POTUS: Matthew Whitaker is a very respected man. He’s — and he’s, very importantly, he’s respected within DOJ. I heard he got a very good decision, I haven’t seen it. Kellyanne, did I hear that?
    POTUS: A 20-page?
    THE DAILY CALLER: It just came out right before this, sir.
    POTUS: Well, I heard it was a very strong opinion. Uh, which is good. But [Whitaker] is just somebody that’s very respected.
    I knew him only as he pertained, you know, as he was with Jeff Sessions. And, you know, look, as far as I’m concerned this is an investigation that should have never been brought. It should have never been had.


  18. Mark Ospeck says:

    Not a lawyer, and wonder if I could get answers to three questions:

    1. How long can Whitaker remain in a quasi recused/unrecused state where it is not clear how DOJ ethics has advised him?

    2. If ethics advised recusal and W did not go along with it, and he then makes a subsequent supervisory decision-say refusing to sign off a particular Mueller indictment, can W be immediately charged with obstruction?  How does the IG figure into this?

    3. Can the freedom of information act be used to obtain the DOJ ethics advisements given to Whitaker?  If so, how long before we the GP would know?

  19. Yogarhythms says:

    Wow great thread. OLC 20 pg
    memo argues attempted coup electrified by MW is just cozy with Congress and law. Tiny appoints MW to say “look what I can do.” Two branches have weighed in we will have to wait for courts vocal yoga. The voters are clear 6NOV18 shellacking is the beginning. Votes are still being counted. Mississippi has one election to go. When we stand up together we have already won.

    • Rugger9 says:

      This underscores the mindset of a narcissist like our Kaiser Quisling: there are no “norms” because everything is about keeping them happy.

      When we are looking at what the palace might do, literally everything is “on the table” as far as available actions, even if it is illegal, immoral, abnormal or merely offensive.  Don’t rule out any possibility, which is why ol’ Emmet is probably popping a bottle of Tums every day.  Plan for it.

  20. Thomas says:

    The guy literally pushes crackpot theories about Bigfoot and time machines – if Flood genuinely sees a strategy in naming [Whitaker], then Flood is going Joker on Gotham City.

    Really cracks me up. And so true!

  21. Manqueman says:

    Me, I don’t believe that Trump’s so much a classic fascist strongman as much as an ignoramus (a stupid one at that) with a child’s (erroneous) belief that a president is omnipotent. And Donald being Donald, he proceeds on his beliefs, enabled by his party (of course) as well as a corporate media for whom profits is more important than honest reporting (sad for us).

    Too,  more relevantly, Trump’s a protege, so to speak, of a mob lawyer; he thinks like a mobster so, you know, D.A.’s on your ass? Get rid of the D.A.

    And of course, to a great degree, it’s just Donald; his entire party believes they’re above the law and have no respect for a system of law.

  22. KPR says:

    To me, this analysis seems extremely problematic:  “Even if the Attorney General had declined to resign and was removed by the President, he still would have been rendered “otherwise unable to perform the functions and duties of the office” for purposes of section 3345(a).”

    At best, it’s conclusory.  At worst, it completely destroys the distinction between resignation and firing, which is typically frowned upon in interpreting statutes.

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