President Trump Can’t Get Away With Firing Cabinet Heads To Be Replaced By His Lackeys

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It is not surprising to me that the US Department of Justice’s legal team, Justice Department’s Office of Legal Counsel (OLC), would render a decision validating the Republican President Donald J. Trump’s placement of Matt Whitaker as the Acting Attorney General to replace the recently fired US Attorney General Jeff Sessions based on the Vacancy Reform Act of 1998. But there is a more specific law that trumps the Vacancy Reform Act which is the Attorney General Succession Act ( (28 U.S.C. § 508).

But the only way that I can think of that this placement could be considered legal is if the OLC defined his position as an inferior one. An employee is defined as a “principle” when he/ she reports directly to the president and she/ he has lots of responsibilities. There is no sound basis to define the position of “Acting Attorney General” at a level of anything less than a ‘principle.’ This is crucial because the president cannot go around firing peoples like the US attorney general, only to replace them with a lackey.

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WHITAKER

The Appointments Clause of the Constitution, Article II, Section 2, Clause 2, states in a nutshell, that any principle office holder who reports directly to the US president cannot be replaced by any party who has not undergone the confirmation process by the US Senate.  Mr. Whitaker has not been subject to this US Senate confirmation process.

In addition The Appointment Clause of the US Constitution’s Article II, Section 2, Clause 2, trumps the following statutes, the Vacancy Reform Act or the Attorney General Succession Act ( (28 U.S.C. § 508).

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In my opinion, the above statutes do not apply when the principle has been fired so that the president can appoint a lackey. Forcing a principle to write a resignation letter is still a firing and not a true resignation.

The president has already tried this approach on at least one occasion by firing the Veterans Administration Head, David Shulkin around March 2018, to replace him with a stooge who had a reputation for being pro-privatization of the Veterans Healthcare infrastructure.

He is Robert Wilke who had been Senate Confirmed to be the Under Secretary of Defense for Personnel and Readiness in September 2017, but in March 2018 he became the acting VA secretary to replace Dr. Shulkin who had been fired. Then after about a few months, on July 30, 2018, Mr. Wilke was Senate confirmed to be the permanent secretary of Veterans Affairs.

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But my reading of the the Vacancy Reform Act or the Attorney General Succession Act ( (28 U.S.C. § 508), does not apply if the principle was fired. In the event of a firing, it should have been Mr. Schulkin’s second in command Tom Bowman who replaced him. We all know how Dr. Shulkin was fired by tweet. His being forced to write a resignation letter doesn’t change the fact that the president fired Mr. Shulkin.

It’s crucial that the president does not get away with this practice because he could then fire Department heads at will to replace them with Trumpians.

There is a reflexive desire by legislators to allow the US president lots of latitude when managing personnel, but this is a step too far.

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As per the 4/17/18 Pacific Standard Magazine report by Isaac Arnsdorf, “The distinction (between a firing vs. resigning) isn’t just a matter of semantics. Under the Federal Vacancies Reform Act, the president can appoint an interim successor to succeed a cabinet secretary who dies, resigns, or can’t perform his or her duties. But it doesn’t say what happens if the secretary is fired. It’s unsettled legal territory, but some scholars say it could open the door to challenging decisions made by the person Trump appointed as acting VA secretary, Robert Wilkie (an official in the Department of Defense). The argument would be that Wilkie lacked authority to make the decisions in question, the scholars say.”

“Opposition to Wilkie surfaced rapidly. Amvets, one of the largest veterans advocacy groups, called on Trump to remove Wilkie and instead elevate the VA’s deputy secretary, Tom Bowman. “This is what common sense, veterans and the law all require, and it needs to happen now,” Amvets national commander Marion Polk wrote in a letter to Trump on April 3rd. Bowman, a former senior senate staffer, is popular with traditional veterans groups and on Capitol Hill. But, like Shulkin, he clashed with White House aides over legislation that would increase the use of private health care in the VA system.”

Only one conservative Veterans’ organization backed by Koch brothers, CVA (Concerned Veterans Of America) was in favor of Mr. Wilke replacing Mr. Shulkin.

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RONNY JACKSON WAS THE PERFECT LACKEY

On November 12, 2018, Sadie Gurman and Byron Tap of the Wall Street Journal penned the following report, “Justice Department Poised to Issue Legal Opinion Supporting Whitaker Appointment” (“Agency lawyers to cite 2003 guidance for President George W. Bush”)

“The OMB director, like the attorney general, is a principal officer of the federal government. The 2003 opinion avoided that problem by defining an acting director as an “inferior officer,” who under Supreme Court precedent doesn’t require Senate approval to be appointed.”

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“Critics from across the ideological spectrum have said Mr. Whitaker’s appointment is a potentially invalid end-run around the Senate’s power to provide “advice and consent” on senior executive-branch nominations. Others have said Mr. Whitaker’s appointment was lawful under a statute called the Vacancies Reform Act.”

“In addition, others say Mr. Whitaker’s ties to a witness in special counsel Robert Mueller’s probe into Russian interference in the 2016 elections and his history of critical comments about that inquiry raise questions about his impartiality and his ability to supervise it. The special counsel is designed to be insulated from political considerations.”

“Justice Department spokeswoman Kerri Kupec said Mr. Whitaker would follow “all appropriate processes and procedures,” including consulting with senior ethics officials.”

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“The Office of Legal Counsel’s opinion is unlikely to quell the debate over Mr. Whitaker’s leadership. The appointment could still face a legal challenge that, if successful, could invalidate actions Mr. Whitaker takes as acting attorney general. Officials in acting capacities are often viewed as placeholders who don’t pursue policy initiatives until a permanent official is confirmed by the Senate.”

“Even if short-lived, the appointment of Mr. Whitaker, who was Mr. Sessions’ chief of staff, could have far-reaching consequences, including for the Mueller investigation.”

“Congressional Democrats on 11/12/18 asked the Justice Department to detail any ethics advice Mr. Whitaker has sought or received since taking office, including questions about his supervision of the Russia probe.”

“Congress is preparing to return to Washington on 11/14/18 for the first time since the Nov. 6 midterm elections, in which Democrats took control of the House and Republicans maintained a narrow Senate majority. With control of one chamber, Democrats will be able to run investigations and issue subpoenas, and several party leaders have signaled they plan to look into Mr. Whitaker’s appointment.”

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“Many Republicans say they aren’t concerned by Mr. Whitaker’s appointment or his past comments that were critical of the Mueller probe.”

“The Democrats’ letter was signed by Rep. Nancy Pelosi of California and Sen. Chuck Schumer of NY, the Democratic leaders in the House and Senate respectively. The top Democrats on the Judiciary and Intelligence committees of the House and Senate also signed the letter, as did the senior Democrat on the House Oversight and Government Reform committee.”

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SCHUMER/ PELOSI

“A challenge to Mr. Whitaker’s appointment could land at the Supreme Court. In recent years, the court has invalidated several executive appointments at the National Labor Relations Board, including then-President Obama’s appointments to the board during a brief Senate break in 2012, and his decision in 2011 to nominate as the board’s general counsel an official who continued to serve in the post in an acting capacity.”

“Those rulings threw into question hundreds of decisions the officials made while in the posts and forced the agency to revisit them. Legal experts said the Justice Department is likely keeping those rulings in mind when advising Mr. Whitaker on any actions he takes that could be challenged.”

Image result for PHOTOS OF World Patent Marketing Inc.“The FBI is conducting a criminal investigation of a Florida company, World Patent Marketing Inc., that is accused of scamming millions from customers during the period that Mr. Whitaker served as a paid advisory-board member, The Wall Street Journal previously reported. As attorney general, Mr. Whitaker has authority over the FBI, which is a component of the Justice Department.

“Mr. Whitaker ran a conservative political nonprofit and frequently appeared on cable television as a legal commentator before becoming Mr. Sessions chief of staff.”

8 comments

  1. Let’s face it, the only reason Trump chose Whitaker (and make no mistake … this has been in the works for a long time, given the little private meetings Trump & Whitaker have been having) was to shutter or stifle the Mueller investigation. Rod Rosenstein would have made a fine Acting Attorney General, but Trump knew he would allow Mueller to continue his investigation relatively unhampered by Trumpantics. My guess is that Trump plans to use the next month-and-a-half to replace as many cabinet members as possible with his sycophants. Every morning I waken and wonder “who’s been fired today?”

    Hugs!

    Liked by 3 people

    • Dear Jill,

      That is why these shenanigans by President Trump need to be challenged in court. This is a precedent that can’t be overlooked. Now that US Congress is back in session, Senators of the Judiciary Committee need to fight this as well.

      You are right, if he gets away with this maneuver, he’ll be firing a lot of folks to replace them with sycophants. Then the USA will become a true banana republic.

      Hugs, Gronda

      Liked by 4 people

  2. Gronda, my hope is Mueller will proceed with his next set of indictments. It may be a subordinate of Roger Stone and even Stone, who is being interviewed for witness tampering on top of other things. Trump never recruited an A team, with exception of Jim Mattis. The better candidates turned him down. Now, we are about to see the C and D team, with loyalty the greatest quality. Keith

    Liked by 3 people

    • Dear Keith,

      You and I are operating on the same wave length. The FBI’s Special Counsel Robert Mueller III had better act soon. I have no doubt that President Trump will start his firing campaign within days.

      He is fuming over recent news and this is when he acts out. This is another reason as to why he can’t get away with firing AG Sessions to replace him with a lackey.

      Hugs, Gronda

      Liked by 2 people

  3. Dear Mz. Gronda,

    Breaking a self imposed silence. Have we all forgotten that the President is allowed to appoint a person to his cabinet bypassing the Senate confirmation process when the Senate is not in session? If my memory serves me right that person must be confirmed before the end of the next session? This is why the debate about the fool he has assigned temporarily to hold the position of Attorney General will fail in the long run…

    Liked by 1 person

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