Sunday, November 11, 2018

Trump's Obstruction Must Not Succeed

      No president other than Donald Trump — however Republican, however conservative — would have given a moment's thought to appointing Matthew Whitaker as the chief law enforcement officer of the United States even temporarily. Whitaker is a con man with bizarre views about the federal judiciary and with no qualifications to be acting attorney general apart from his sycophantic loyalty to Donald J. Trump.
      Trump's installation of Whitaker, a pro-Trump talking head on CNN for the past year, is both unconstitutional and illegal, according to some but not all legal experts. The legal doubt about the appointment [Nov. 7] is not, however, the most important mark against it.
      Instead, Trump's selection of Whitaker must be seen as presidential obstruction of justice by indirection. Whitaker came to Trump's attention by using his CNN slot to echo Trump's denunciation of Mueller's investigation as a "witch hunt" and to deny with unprovable certainty any Russian impact on the outcome of the presidential election.
      Whitaker told friends he signed up for the CNN slot in hopes of gaining Trump's attention for a federal judgeship. On CNN, Whitaker outlined a scenario that Trump could use to quash the Mueller investigation by firing attorney general Jeff Sessions and then appointing a successor to kill Mueller's investigation by cutting his budget.
      As acting attorney general, Whitaker now exercises supervisory oversight over an investigation that he continued to call a witch hunt even after Mueller's successes in obtaining convictions against significant Trump campaign figures, including former campaign chairman Paul Manafort, and indictments against Russian election infiltrators. And if there were any doubt, Whitaker is signaling that he will not recuse himself from that role, as Sessions did, without yet consulting the Justice Department's ethics officers on the question.
      Sessions, an early Trump supporter, was fired after a tumultuous 21 months in office for having recused himself as a potential witness from any role in overseeing Mueller's investigation. He was fired, as the ACLU's national legal director David Cole aptly remarked on Saturday [Nov. 10], for the one good thing that he had done while attorney general.
      Whitaker caught a touchdown pass for Iowa in the 1991 Rose Bowl, but he had not much else on his resume until taking over the corner office at Main Justice last week. He served for four years as a Republican-appointed U.S. attorney for Iowa and then after several years as private citizen ran fourth out of a field of five candidates in the Republican primary for the U.S. Senate in 2014.
      In that campaign, Whitaker took the truly unconstitutional position that, if elected, he would screen nominees for federal judgeships based on whether they had "a biblical view of justice." Apparently, Whitaker's law school course on constitutional law skipped over the provision in Article VI, clause 3, that "no religious test shall ever be required as a qualification to any office or public trust under the United States."
      As another example of Whitaker's weak spots on constitutional law, he has called for overruling the very foundation of judicial review in the United States: Chief Justice John Marshall's landmark decision in Marbury v. Madison (1803). That decision gained support most recently from no less a conservative than the Supreme Court nominee Brett Kavanaugh, who applauded it in his confirmation hearing as one of the Court's "four greatest moments" in history.
      As private citizen, Whitaker served on the advisory board of a company that paid a $25 million fine to the Federal Trade Commission (FTC) for bilking would-be inventors out of thousands of dollars by promising help with their patent applications that never materialized. Whitaker's role in the Florida-based World Patent Marketing was featured in the company's promotional materials, but he was not named in the FTC's complaint.
      The White House apparently knew nothing about the case before Trump's appointment of Whitaker. After news of the case surfaced, however, the Justice Department spokeswoman Kerri Kupec issued a statement noting Whitaker's previous statement that "he was not aware of any fraudulent activity."
      The legal issue over Whitaker's appointment stems from the view of some legal experts that the Constitution requires any "principal officer," even in a temporary role, be Senate confirmed. The argument to that effect was set out in an op-ed article in the New York Times by two lawyers from opposite political camps: Neal Katyal, the Georgetown law professor and former acting U.S. solicitor general under President Obama, and George T. Conway III, the anti-Trump Republican lawyer who is married to senior White House counselor Kellyanne Conway. Stephen Vladeck, a respected law professor at the University of Texas, set out the contrary argument in a subsequent op-ed article also in the Times. He argued that the federal Vacancies Reform Act allows Whitaker to serve in an acting capacity for seven months.
      With no action on Trump's part, the post would have devolved on Rod Rosenstein, the Senate-confirmed deputy attorney general who has gained Trump's disfavor by failing to limit Mueller's authority. Thus, Trump's decision must be understood as deliberately aimed at curtailing the Mueller investigation. The president tried to distance himself from that evident conclusion on Friday [Nov. 9] by claiming, falsely, that he had not even met Whitaker before the temporary appointment.
      Trump's move has disturbing parallels to President Richard Nixon's firing of the special Watergate prosecutor in the so-called Saturday night massacre. Nixon's ploy failed in the face of a public and congressional backlash. Trump seemingly believes that he will be saved by his political base and compliant Senate Republicans. For the sake of the rule of law, he must not succeed and his lackey Whitaker must be thrown back into his well-earned obscurity.

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