The Invisible Game of Chicken: The Things the People Claiming to Understand the Manafort Extension Don’t Know (Nor Do I)

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There’s a lot of tea reading around the fact that the parties asked for a 10-day extension in the first status report on how well Paul Manafort has been cooperating. Originally the report (set two months ago when he flipped) was set for tomorrow, which is . the last Friday before Thanksgiving. The motion asks for an extension to November 26, which is the first Monday after Thanksgiving.

Some people have suggested that means the key issue on which Manafort is cooperating is close to done, but not done, and from that promised indictments tomorrow (since what grand jury in its right constitution-saving mind would work the day after Thanksgiving).

That may be right, but there are a lot more pieces in play than just that, including:

Trump’s open book test

Sometime in October, Mueller gave Trump his open book test of questions to answer. It already seemed like Trump was stalling until he tried his Matt Whitaker ploy. And this week, Trump’s lawyers have continued to dick around about whether they’re even going to answer all the questions.

There’s good reason not to reveal publicly whether Manafort is cooperating fully until you’ve gotten whatever answers you’re going to get or given up waiting. If you reveal in a status report that Mueller’s team thinks Manafort hasn’t been cooperating, then Trump would feel more free to lie. If you reveal Manafort has been cooperating fully, including about Trump’s actions (in contradiction to some reports that he hasn’t been), then Trump will be more likely to avoid answering.

So there’s good reason to wait until after Trump has turned in his open book test or gotten a D on the exam.

Whitaker’s ethics review and first briefing

While Matt Whitaker has blessing from the Office of Legal Counsel to oversee Mueller, there’s no indication he has undergone his ethics review on whether he can supervise Mueller. Indeed, contrary to much panic that I think stemmed from Jerome Corsi’s specific comments about how mean prosecutors are, I’m not at all convinced Whitaker has even been read into the Mueller investigation yet (this report seems to suggest he has not).

There are lots of reason to delay action — on both voting up indictments and revealing details about Manafort’s cooperation — until there’s more clarity on Whitaker’s role. Indeed, if Mueller has truly shocking things, things that even Whitaker would be unwilling to veto, it might serve him well to hold them, and make Whitaker buy off on them.

And that uncertainty might lead to a Manafort delay.

The Maryland challenge to Whitaker’s authority

Tuesday Maryland’s Attorney General, Brian Frosh, submitted his promised challenge to Whitaker’s appointment. This challenge — and others we should expect — won’t be decided anytime soon, but they may lead Mueller to delay until, at least, he knows he can continue to ensure the legality of his actions by reporting them through Rosenstein.

Manafort’s forfeitures

On October 9, Mueller’s team started the process for seizing the $46 million of assets Manafort had taken in his plea deal. Others with an ownership stake in the assets have a month to contest the seizure. Just the bank holding the mortgage on his Trump Tower apartment challenged the seizure.

That means around about now, the rest of his assets (they won’t really be worth $46 million, but they’re worth a lot) will begin to be put beyond the reach of presidential pardon.

Monday’s briefing

Meanwhile, there are two things going on at the DC Circuit.

Yesterday, the Mystery Appellant challenging some action Mueller took submitted a reply brief to Mueller’s brief submitted (in the wake of the Whitaker appointment) last Thursday. Today a notice of some sort was filed.

This stuff may be relevant — we don’t know! But the developments in this appeal may affect Mueller’s willingness to show more cards (though it won’t be resolved until December at the earliest).

We do know, however, that Mueller has to turn in a briefing describing how Whitaker’s appointment affects his own authority. That may well be the first that we understand what he knows to have occurred since Whitaker’s appointment and how he sees it affecting his own authority — and whether he think he has mitigated any risk that his actions will be invalidated by reporting through Rosenstein.

Sure, the delay might be a handful of indictments to drop tomorrow or even next Friday. But right now all we can be sure of is that Mueller and Trump are playing either a secret game of Chicken — or Chess. And we’ve seen just a tiny fraction of the plays so far.

All that said, one thing that that çomes after this date is the next Trump Putin meeting — which will be in Argentina during the G-20, which starts November 30.

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On Rick Gates’ Expansive Cooperation

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Much has been made from something in a status update in Rick Gates’ case the other day. In asking for a two month delay on sentencing (the last one was for three months), the parties revealed that Gates is cooperating on “several ongoing investigations.”

1. The parties previously filed a Joint Status Report on August 10, 2018 and proposed to send an ensuing report within ninety days and no later than November 10, 2018. To date, the status of this matter has not changed substantially since the August report, as defendant Gates continues to cooperate with respect to several ongoing investigations, and accordingly the parties do not believe it is appropriate to commence the sentencing process at this time.

2. The parties respectfully request that they provide a joint status report within sixty days, no later than January 15, 2019.

So he’s working on more than Mueller’s investigation (if he’s even still focusing on that; I’ve seen no report of him appearing at Mueller’s office).

That actually shouldn’t be that big a surprise. As part of his plea agreement, Sam Patten — who like Gates had close ties to Konstantin Kilimnik — is required to cooperate with “this Office, the Special Counsel’s Office, and other law enforcement authorities.” That means Patten is, at a minimum, cooperating with Mueller and a separate investigation out of the DC US Attorney’s Office (with whom he signed his plea). Plus, when Kyle Freeny left Mueller’s office last month, she may have brought some part of the money laundering investigation Mueller was doing with her; one obvious candidate might be Trump’s Inauguration Pay-to-Play.

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Trump Appointee Dabney Friedrich Continues to Trounce the Trolls’ Hopes of Discrediting Mueller

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Dabney Friedrich, the Trump appointee presiding over the Concord Management challenge to its indictment, just released her opinion rejecting their attempt to argue they can’t be indicted for conspiring to illegally tamper in our elections. The indictment effectively argued that Yevgeniy Prigozhin’s trolls deceptive tactics — including not just failing to register as foreigners trying to influence US politics, but also social media users hiding they were foreign — prevented the US government from ensuring foreigners don’t participate in our elections.

The key passage in the opinion is this one, which upholds the government’s contention that it doesn’t have to prove that Concord broke the underlying laws protecting elections. It only has to prove that Concord conspired to undermine lawful government functions.

Concord is correct that the indictment must identify the lawful government functions at issue with some specificity. And it does. See Indictment ¶¶ 9, 25–27. A defraud-clause conspiracy need not, however, allege an agreement to violate some statutory or regulatory provision independent of § 371.

With this passage, a Trump judge affirms the underlying theory behind all of Mueller’s interlocking conspiracies.

But I think what Friedrich did with Concord’s claim that, because trolling on social media involves First Amendment concerns, the bar for willingness is raised higher is as important. She dismissed this claim by treating Concord’s trolling as fraud, not just lying.

Concord’s remaining argument—that the indictment implicates protected speech—fares no better. There is no doubt that speech is of “primary importance . . . to the integrity of the election process,” Citizens United, 558 U.S. 310, 334 (2010), or that political speech “occupies the highest rung of the hierarchy of First Amendment values,” Janus v. Am. Fed’n of State, Cnty. and Mun. Emps., Counsel 31, 138 S. Ct. 2448, 2476 (2018) (internal quotation marks omitted). However, the indictment does not focus on the defendants’ speech, or its content, but on a course of deceptive conduct. See, e.g., Indictment ¶¶ 4–7, 30, 32, 36, 39, 41, 43, 48, 51. Although the Supreme Court made clear in United States v. Alvarez that “false statements” are not automatically unprotected, 567 U.S. 709, 717–22 (2012) (plurality opinion), it distinguished such statements from “fraud,” which involves “legally cognizable harm,” id. at 719, and remains one of the few historical categories of unprotected speech, id. at 717. Indeed, the Court approved of statutes prohibiting false statements to government officials, perjury, impersonating an officer, and pretending to speak on behalf of the government because such statutes “implicate fraud or speech integral to criminal conduct.” Id. at 721. Consistent with these principles, the Fifth Circuit in United States v. Daly rejected a claim that a conspiracy to defraud the United States by impeding and impairing the lawful functions of the IRS implicated the First Amendment. 756 F.2d 1076, 1082 (5th Cir. 1985).

The same is true here. The conspiracy to defraud does not implicate the First Amendment merely because it involved deceptive statements like claiming to represent U.S. entities, claiming to be U.S. persons, and providing false statements on visa applications. 9

9 Even if the indictment did implicate protected speech, the United States’ “compelling interest . . . in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process,” Bluman, 800 F. Supp. 2d at 288, might well sustain the charge against Concord.

Friedrich puts the government on notice that it will have to prove Concord knew it was interfering with government functions (which will be much easier with evidence laid out in the Elena Alekseevna Khusyaynova complaint, at least going forward).

Although the § 371 conspiracy alleged does not require willfulness, the parties’ disagreement may be narrower than it first appears. The government concedes that § 371 requires the specific intent to carry out the unlawful object of the agreement—in this case, the obstruction of lawful government functions. Gov’t’s Opp’n at 16 (“Because Concord is charged with conspiring to defraud the United States, . . . the requisite mental state is the intent of impairing, obstructing, or defeating the lawful function of any department of government through deception.” (internal quotation marks omitted)). Further, the government agrees that to form the intent to impair or obstruct a government function, one must first be aware of that function. See Hr’g Tr. at 40 (“[Y]ou can’t act with an intent to impair a lawful government function if you don’t know about the lawful government function.”). Thus, Concord is correct—and the government does not dispute—that the government “must, at a minimum, show that Concord knew what ‘lawful governmental functions’ it was allegedly impeding or obstructing.” Def.’s Mot. to Dismiss at 22; Def.’s Reply at 5. Here, as alleged in the indictment, the government must show that Concord knew that it was impairing the “lawful functions” of FEC, DOJ, or DOS “in administering federal requirements for disclosure of foreign involvement in certain domestic activities.” Indictment ¶ 9. But Concord goes too far in asserting that the Special Counsel must also show that Concord knew with specificity “how the relevant laws described those functions.” Def.’s Mot. to Dismiss at 22; Def.’s Reply at 5. A general knowledge that U.S. agencies are tasked with collecting the kinds of information the defendants agreed to withhold and conceal would suffice. Concord will have further opportunities—with jury instructions and in trial and post-trial motions, if any—to ensure that the government proves enough knowledge to support a specific intent to thwart at least one of the three government functions alleged in the indictment.

But it’s not clear Concord will sustain this legal challenge that long.

While regulation of elections for Americans is less onerous than it is for foreigners, the notion that trolling is fraud may be useful for other kinds of people tampering in elections.

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What OLC Says Happened with Matt Whitaker’s Appointment

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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.

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WSJ’s Curious Mueller Editorial

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I want to look back at something that has been puzzling me: a Wall Street Journal editorial issued by the end of the day Wednesday arguing that Mueller should not be fired. The next day, Rupert Murdoch paid Mitch McConnell a personal visit on the Hill.

While not as shrill or fact-free as its columnist, Kim Strassel, the WSJ editorial page has been steadily critical of the Mueller investigation, dismissing any possibility it will identify “collusion” and repeating GOP claims that it as sprawled beyond Mueller’s original remit (as well as parroting GOP claims that the FBI framed the Trump campaign). A column on the Paul Manafort plea deal, for example, warned that leaks from the investigation (which have never happened) would undermine public confidence in the investigation.

Leaks or other news about his investigation will undermine public confidence in a probe that has already wandered far from its original Russia remit and has now lasted 16 months without a resolution.

So it’s not like WSJ has been friendly to the Mueller investigation.

That said, their columns on the Mueller investigation as frequently criticize Trump’s incompetence in dealing with it and DOJ. That sentiment shows up in the two most relevant recent editorial columns on the investigation. This column from late August argues that Trump’s attacks on Jeff Sessions put Republican majorities at risk in November, which would lead to impeachment.

We will point out that Mr. Trump’s attacks on his own Attorney General this week are wrong and politically counterproductive.

The President is still furious that Mr. Sessions recused himself from the Russia probe, which has since become the sprawling Robert Mueller investigation that threatens his Presidency. But railing against Mr. Sessions can’t change that, and it gives the appearance of trying to politicize the department.

[snip]

The biggest political threat to Mr. Trump is a Democratic election victory in November, which will trigger a drive for impeachment. Mr. Trump isn’t going to persuade anyone to vote for Republicans by railing against a Republican Attorney General he selected.

And this September column about the possibility of firing Rosenstein emphasizes the impact that would have on Republican majorities.

The immediate battle now is over the midterm election and whether Mr. Trump can stay in office as the impeachment assault begins from Nancy Pelosi’s Democrats. Mr. Trump can make personnel changes after the midterms if Republicans still hold the Senate and he can get someone confirmed.

Murdoch’s American flagship paper doesn’t like the Mueller investigation. But that has as much to do with the ways it leads Trump to do stupid things that imperil Republican rule as that it poses a risk for Trump personally.

With that as background, consider the column. It starts by complaining (again) about how badly Trump treated Sessions.

Mr. Sessions deserved better than the public humiliations dealt by President Trump. As a Senator from Alabama, Jeff Sessions was the first Washington figure of any stature to embrace Mr. Trump’s candidacy. Mr. Trump wants loyalty up but not down.

It then describes the appointment of Matt Whitaker without comment or judgment.

Sessions’ temporary successor will be the AG’s chief of staff, Matthew Whitaker, who presumably will hold the job until a successor is nominated.

Most of the column argues for a solid Attorney General replacement. The WSJ seems to be complaining — as they did in some of their other editorials — that the White House should exercise more influence over DOJ. They do want someone respectable as Attorney General, however.

It is important that the White House get this one right.

The Attorney General shouldn’t fire Mr. Mueller, as the President essentially said himself at his Wednesday news conference. Mr. Trump needs an individual of stature and judgment who will have the trust of the department’s lawyers, who is capable of independence, but who also understands that the Justice Department is part of the executive branch and not a law unto itself.

But the WSJ, with as little comment as it makes about Whitaker, also states clearly that any new Attorney General shouldn’t fire Mueller and claims Trump himself has agreed, probably a reference to this answer from Trump at the press conference that day.

Q    Thank you, Mr. President.  Going back to the Russia investigation and the potential investigations from the now- Democratic majority in Congress, some say that you could stop all this by declassifying —

THE PRESIDENT:  I could.  I could fire everybody right now.  But I don’t want to stop it, because politically, I don’t like stopping it.  It’s a disgrace.  It should have never been started because there was no crime.  It is — everybody has conflicts.  They all have conflicts over there that are beyond anything that anybody has ever seen in terms of conflicts — from the fact that people ask for jobs; from the fact that they have very good friends on the other side, like really good friends, like Comey — who, by the way, lied and leaked, and also leaked classified information.  Nothing happened there.  It might, perhaps.  Maybe something is happening that I don’t know about.

I stay away from it.  But do you know what I do?  I let it just go on.  They’re wasting a lot of money, but I let it go on because I don’t want to do that.

The day after the election, Trump took a rash step to end the Mueller investigation by firing Sessions and hiring Whitaker. And WSJ almost immediately responded by warning Trump not to do any further damage to the party with his impulsive efforts to undermine Mueller.

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Neal Katyal Helps Mueller Write Monday’s Brief

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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.

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Dear Lindsey: Not Even Trump Gives a Shit What You Think about the Whitaker Appointment

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About the most competent thing Trump managed with his ham-handed roll out of a hatchet man to oversee the Mueller investigation was to pick someone with close ties to Senate Judiciary Chair Chuck Grassley. Matt Whitaker has driven all around Iowa with Grassley.

And somehow, Whitaker managed to have Gary Barnett, whose Linked In profile says he still works as Jeff Flake’s Chief Counsel, installed as his new Chief of Staff in time to attend Whitaker’s takeover strategy huddle, while Sessions huddled with Senate confirmed officials.

So whatever else he is or is not, Whitaker is certainly well wired with one of the committees that would have oversight on his actions.

Perhaps that’s why Lindsey Graham and CBS Face the Nation thought he’d be a good guest to opine that everything pertaining to Whitaker’s appointment is hunky dory.

Graham told “Face the Nation” host Margaret Brennan on Sunday he believes the acting attorney general was “appointed appropriately” and “legally,” and he’s “confident” Whitaker won’t interfere in Mueller’s ongoing investigation.

“I talked with Matt yesterday,” Graham said. “I’m going to meet with him next week when we get our schedules aligned here. I think he was appropriately appointed legally. I don’t think he has to recuse himself. I am confident the Mueller investigation will be allowed to come to a good solid conclusion, that there’ll be no political influence put on Mr. Mueller by Mr. Whitaker to do anything other than Mr. Mueller’s job. I’m confident that Mr. Mueller will be allowed to do his job without interference.”

To be clear: I’m not minimizing the degree to which Trump has eliminated one possible source of resistance to his hatchet man plan, by picking someone wired into SJC (and backed vocally by Leonard Leo, since Republican SJC members appear to answer to him).

But by picking Whitaker, Trump has affirmatively told the Senate they — and the professionals for whom they have spent the time to advise and consent — are expendable. After all, the sole reason to appoint Whitaker rather than rely on normal succession is to prevent Rosenstein from having oversight of investigations into Trump.

More importantly, while SJC could have a hearing and Lindsey promises he’ll meet with Whitaker, none of that will have an immediate effect. SJC has absolutely no way to prevent Whitaker from burning up all the norms critical to a functioning DOJ, including recusal where it clearly is called for. There’s not even a way to prevent Whitaker from trumping up some charge and firing Mueller before any such meeting happens.

And it’s not SJC’s place to judge if Whitaker’s appointment is illegal. That role belongs to OLC (whose head, Steven Engel, has already been in at least one discussion about whether it is constitutional) and the Courts. If the question gets to the latter, SJC is not among the leading entities that might have standing to challenge it.

Having Lindsey’s seal of approval might make it easier for Whitaker to last out the two months or so until Democrats take the House. But that will have zero role in whether Whitaker blows up the Constitution.

Lindsey (and CBS) think he matters here. That’s quaint.

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In Defending His Whitaker Pick, Trump Attempts to Placate Both Republicans and Lawyers

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President Trump flew all the way to Paris to (as far as we know) sit in the US Ambassador’s residence rather than attend the World War I remembrance he had flown all that way for. The stated reason was weather — basically some light drizzle in 50 degree temperatures.

I’m reminded that the other most prominent time Trump inexplicably blew off a high profile international event — when he had Ivanka sit in for him at the G-20 in July 2017 — he used the time instead scrambling with aides about how to craft a story about the June 9 meeting.

Given the way the Matt Whitaker appointment is blowing up — on top of persistent questions about the legality of the appointment, stories about the criminal investigation into his firm, (sketchy) claims that the White House knew nothing about his comments or past when they picked him, and additional reports of Whitaker’s radical legal belief, including that states can nullify federal law — I suspect he may similarly be huddled somewhere trying to prevent the Whitaker move from making his plight worse than it already was. (Though he’s demonstrably also working the phones in hopes of squeezing an extra Senate seat out of the process.)

Which is why I’m interested in the two tweets Trump made on the topic last night.

First, while also affirming his qualifications, Trump claimed (falsely) that he didn’t know Whitaker.

Yes, his claims here are narrower than the ones already debunked by his statements on Fox News the last time he tried to install Whitaker. He now admits to knowing Whitaker. But he falsely pretends that Sessions, not the White House, picked Whitaker. And he suggests, incorrectly, that he and others at the White House (including, per the NYT, Don McGahn when he was looking for an attack dog to work Trump’s defense) didn’t have direct contact with Whitaker.

President Trump first noticed Matthew G. Whitaker on CNN in the summer of 2017 and liked what he saw — a partisan defender who insisted there was no collusion between Russia and the Trump campaign. So that July, the White House counsel, Donald F. McGahn II, interviewed Mr. Whitaker about joining the president’s team as a legal attack dog against the special counsel, Robert S. Mueller III.

[snip]

The decision to fire Mr. Sessions and replace him with Mr. Whitaker had been in the works since September, when the president began asking friends and associates if they thought it would be a good idea, according to people familiar with the discussions.

The goal was not unlike the first time the White House considered hiring Mr. Whitaker. As attorney general, he could wind down Mr. Mueller’s inquiry like the president wanted.

Mr. McGahn, for one, was a big proponent of the idea. So was Leonard A. Leo, the executive vice president of the Federalist Society who regularly advises Mr. Trump on judges and other legal matters. Mr. Whitaker had also developed a strong rapport with John F. Kelly, the White House chief of staff. Nick Ayers, Vice President Mike Pence’s chief of staff, was a fan, too.

A team that has spent over a year claiming intermittently that Robert Mueller has a conflict because he interviewed to be FBI Director the day before he got named Special Counsel has made a guy who interviewed to be part of his defense team Attorney General.

All this creates an overwhelming appearance of a conflict, one DOJ’s ethical advisors — if they get the opportunity — would surely say disqualifies Whitaker from overseeing the Russian investigation.

So Trump, with his first tweet, is making false claims to try to deny these conflicts. It’s an appeal to lawyers — ethics lawyers at DOJ, constitutional lawyers questioning the legality of the appointment, and probably Mueller’s lawyers, who’ve been Hoovering up evidence relating to this latest obstruction of justice. This is the kind of performance tweeting Trump does all the time. It has no legal value — the lawyers he’s trying to influence will instead work with actual evidence — but it might lead his supporters to overlook egregious conflicts.

I’m more interested in his second tweet, posted 12 minutes later, touting that Republicans — most who worked or fought campaigns with him in IA — think highly of him.

Along with selling lawyers a lie, it seems, Trump feels the need to assure fellow Republicans (in the wake of losing many suburban women voters in part because of the Brett Kavanaugh confirmation process) that it will be worth fighting for Whitaker. Sure, Iowa politicians matter for anyone thinking of running for office. It definitely helps that the Chair of the Senate Judiciary Committee has driven to all Iowa’s counties with Whitaker.

But the key validator here, of course, is Leonard Leo, who has been pushing Whitaker as part of a defense strategy. That is, Leo is not (yet) pushing Whitaker to be a judge, though I think it likely that’s how he expects to be paid off, which makes Leo’s involvement even more suspect. For now, though, Leo is instead pushing Whitaker to help wind down the Mueller probe.

And Trump wants fellow Republicans, who just got shellacked in the House and may not even extend their advantage in the Senate, to risk political capital to defend Whitaker, all the while blowing up a half century of conservative beliefs about appointments.

Yet, even with these two bids to placate two different audiences about the Whitaker move (and all the related bullshit about not knowing what a hack Whitaker is), Trump simply doesn’t address all the glaring problems with Whitaker, starting with the question about whether the appointment is even legal.

It’s always a mistake to underestimate Trump’s survival ability, and it may be that he’ll find a way to persuade the two audiences he’s trying to reassure that Whitaker is worth the risk.

But these tweets suggest a heavy-handed move he probably imagined would bring him salvation has just added to his headaches.

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The Kremlinology (Ha!) of the Sessions’ Huddle

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A lot of people were startled by the report of Rod Rosenstein commenting on Friday that Matt Whitaker is a “superb” choice to be Acting Attorney General.

Deputy Attorney General Rod Rosenstein on Friday hailed acting Attorney General Matthew Whitaker as a “superb” choice to fill the role even as Whitaker’s past statements have prompted questions about his impartiality toward special counsel Robert Mueller’s investigation.

“I think he’s a superb choice for attorney general,” Rosenstein told a small group of reporters gathered outside of an investiture ceremony for US Attorney Zachary Terwilliger in Alexandria, Virginia. “He certainly understands the work, understands the priorities of the department.”

When asked about the Mueller probe at the same event, Rosenstein walked away.

Aside from reports that Rosenstein and Whitaker hate each other (indeed, the effort to fire Rosenstein in September was significantly hatched by Whitaker), there’s reason to believe Rosenstein was just flattering his new boss. The speech at which he made these comments included a comment not just mentioning Marbury versus Madison — the cornerstone of judicial review in this country, which Whitaker has said was wrongly decided — but mentioning it in the context of having the proper paperwork to serve as an official of DOJ.

The internet web site for the Eastern District of Virginia proudly states, and I quote, “John Marshall … was appointed by President Washington to serve as the first United States Attorney for the District of Virginia.”

Virginia’s claim to Chief Justice Marshall as the first U.S. Attorney is quite a distinction. But it is not entirely accurate. Now, it is literally true that John Marshall was appointed U.S. Attorney by President Washington. But he never actually served as U.S. Attorney.

In fact, Marshall responded to the President with a letter of his own. Marshall wrote, “[T]hank you … very sincerely for the honor … [but] I beg leave to declare that … with real regret[,] I decline ….”

Washington replied with yet another letter. He wrote, “As some other person must be appointed to fill the Office of Attorney for the district of Virginia, it is proper your Commission should be returned to me.” He wanted the document back!

Perhaps that explains why, when the case of Marbury versus Madison came along in 1803, Chief Justice Marshall focused so intently on the importance of the signed commission.

Apparently the audience, for the investiture of the new US Attorney in EDVA, laughed at Rosenstein’s comment, perhaps recognizing the reference to be a dig at Whitaker, perhaps recognizing something more.

Still, two days after Whitaker’s appointment, Rosenstein offered effusive and public flattery at a time of great uncertainty over events of the last week.

Rod Rosenstein has not survived as a senior DOJ official for thirteen years, through three presidential administrations and serving both parties, without knowing how to flatter his bosses. And I suspect, in this case, those skills may serve the country well.

Consider some details in this important CNN report, describing how and with whom, after John Kelly asked Jeff Sessions for his resignation on Wednesday morning, the Attorney General of the United States huddled, talking strategy.

Sessions met with the Deputy Attorney General, the Solicitor General, the head of Office of Legal Counsel, and the Principal Deputy Assistant Attorney General.

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.

Soon, the sources say, top Justice officials convened on the 5th floor suite of offices for the attorney general.

Eventually, there were two huddles in separate offices. Among those in Sessions’ office was Deputy Attorney General Rod Rosenstein, his deputy Ed O’Callaghan, Solicitor General Noel Francisco and Steven Engel, who heads the Office of Legal Counsel.

With the exception of O’Callaghan, all of those men outranked Whitaker so long as Sessions officially remained Attorney General. We don’t actually know when his tenure ended. Sessions’ resignation letter is not dated, much less time-stamped; while Sessions may not know how to date important letters like this, Rosenstein and O’Callaghan surely do, but somehow it did not get dated.

Judges and Justices, Rosenstein would point out two days later, “focus[ ] intently on the importance of the signed commission.”

We do know that when Trump tweeted about Whitaker’s appointment at 2:44 PM, he used the future tense — “will become,” not “is” — to describe Whitaker’s tenure as Attorney General.

We also know that Sessions implemented a significant policy change on consent decrees close to the end of that day, a policy change the Trump Administration has built on in ensuing days. So at the time Sessions implemented that policy change (which the metadata suggests was close to the end of the day), he must have still retained the authority of Attorney General.

So for the sake of this Kremlinology, I will assume that Sessions remained Attorney General for the remainder of the day on Wednesday. That means that, for at least a half day after this went down, any orders he gave were binding and all those men huddling with him on Wednesday morning retained the relative seniority to Whitaker that they started the day with.

As CNN says in its report, the people huddling with Sessions included key players overseeing Mueller’s probe. Rosenstein and O’Callaghan provide the day-to-day oversight of the probe.

The fact that Whitaker would become acting attorney general, passing over Rosenstein suddenly raised concerns about the impact on the most high-profile investigation in the Justice Department, the Russia probe led by Mueller.

The Mueller probe has been at the center of Trump’s ire directed at Sessions and the Justice Department. Whitaker has made comments criticizing Mueller’s investigation and Rosenstein’s oversight of it, and has questioned the allegations of Russian interference.

Rosenstein and 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.

That day-to-day oversight is critical both to any claim that Mueller operates with constitutional authority and to any effort by Trump and Whitaker to undermine Mueller’s authority.

But CNN doesn’t talk about the important role played in the probe by the other two Senate-confirmed figures in the room, Solicitor General Noel Francisco and OLC head Steven Engel.

As Michael Dreeben, who formally reports to Francisco, noted Thursday (that is, the day after this huddle) during his DC Circuit argument defending the constitutionality of Mueller’s authority, Francisco must approve any appeal Mueller’s team makes (presumably, he must approve any appellate activity at all). The arguments Dreeben made publicly Thursday — as well as whatever arguments Mueller submitted in a brief in sealed form in the Mystery Appeal that same day — were arguments made with the approval of and under the authority of the Solicitor General, the third ranking official at DOJ.

Then there’s Engel. He’s the guy who decides, in response to questions posed by Executive Branch officials, how to interpret the law for the entire Executive Branch. It’s his office, for example, who would decide whether it would be legal for Mueller to indict the President. His office also interprets the laws surrounding things like the Vacancies Reform Act, whether any given presidential appointment is legal.

Which is why this passage of the CNN report is so significant.

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.

In a room of men huddling with Jeff Sessions at a time he undeniably retained authority as Attorney General, at least one person — it might though is unlikely to be Sessions, it might be the Solicitor General who would argue the case legally, it might be the Deputy Attorney General or his deputy overseeing the Russian probe, it might be the guy who ultimately decides such things, or it might be several of them — at least one of those senior DOJ officials raised questions about whether Whitaker’s appointment would be constitutional. All of those men are sufficiently senior to ask Engel to write up a memo considering the question, and so long as Sessions retained the authority of Attorney General, he could decide whether to accept Engel’s advice or not. Sure, the President could override that (Obama overrode OLC, to his great disgrace, in Libya). But Trump would be on far shakier legal ground to do so without OLC’s blessing, and anyone operating in defiance of the OLC opinion could face legal problems in the future.

And an OLC opinion is precisely the kind of thing that Mueller’s team might submit to the DC Circuit — under the authority of the Senate approved and third-ranking Noel Francisco — in a sealed appendix to a challenge to Mueller’s authority.

I asked around this morning, of both those who think Whitaker’s appointment is not legal and those (like Steve Vladeck) who think it is. And it seems crystal clear: if Whitaker’s appointment is illegal, then that is a disability (just like recusal would be), and the regular DOJ succession would apply. In that case, the Deputy Attorney General would be acting Attorney General, for all matters, not just the supervision of the Special Counsel.

I don’t pretend to know what happened in that huddle or in the half day afterwards when Jeff Sessions uncontestedly retained his authority as Attorney General. I do know the rising House Judiciary Committee Chair has demanded that the paperwork behind it be preserved.

But I’m not really bugged that Rod Rosenstein is doing what he needs to do to remain the person who, if Whitaker’s appointment were illegal, would serve as the Acting Attorney General.

Update: Two more details I should have added in this post.

First, this meeting feels a lot like the ones in response to the 2004 Hospital Hero crisis, which was not just a fight about surveillance, but also about President’s abusing DOJ succession. That suggests the two different huddles at DOJ represent two different camps of loyalty. If that’s right, we might assume those officials in with Sessions might resign (or threaten to) if asked to do something they believed to be illegal. That would mean people with the analogous job titles as threatened to quit in the 2004 crisis — DAG, PDAAG, and SG — might threaten to quit here. Chris Wray would be the analogue to Robert Mueller in this situation; while he’s not reported to be involved on Wednesday, he was reportedly among those ready to quit in 2004.

Additionally, there have been worries about what would happen if Noel Francisco assumed oversight of the Mueller probe (which is what would have happened if Trump fired Rosenstein rather than replaced Sessions). That he was in the group trying to preserve the Mueller probe suggests he may be more supportive of it than people have assumed; remember, on top of approving Mueller’s appeals, he has been brought in at other key points.

So this Kremlinology also suggests there may be more resilience among top officials than assumed, as well.

Update: Fixed that “supervision of the Attorney General” phrase as noted by several in comments. Thanks!

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

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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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