The republican President Donald Trump has never given up trying to do an end run around the FBI’s Trump-Russia probe headed by the Special Counsel Robert Mueller III. His latest maneuver was to fire his US Department of Justice (DOJ) Attorney General Jeff Sessions who had to recuse himself early on from having any oversight duties regarding the Trump-Russia saga.
By now, President Trump has been advised that Mr. Sessions’ replacement, the Acting Attorney General Matt Whitaker is probably not a constitutional appointment because of the Appointments Clause of the Constitution, Article II, Section 2, Clause 2, which 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.
So, President Trump’s “what about him” deflection defense is to point to the FBI’s Special Counsel Robert Mueller III, who had not been required to undergo the senate confirmation process.
The problem with the president’s argument is that Mr. Mueller does not report directly to the US president, but has his work product and requests reviewed by the DOJ’s Deputy Attorney Rod Rosenstein who in turn reports to the Attorney General.. Thus he is not a “principle office holder,”but an “inferior one.
The president then pivoted to the fact that the Acting Attorney General is a temporary position and therefore, not a “principle office holder.” This line of thinking doesn’t hold water because Matt Whitaker has all the duties, responsibilities and power of an attorney general who reports directly to President Trump.
And there is another case where President Trump replaced a fired principle office holder, the VA Secretary David Shulkin with his lackey Robert Wilke, as Acting VA Secretary in March 2018. This was after President Trump’s original nomination Dr. Ronny Jackson bombed.
Even though Mr. Wilke had been US Senate confirmed in 2017 for a Defense Dept. job, there is the FVRA Federal Vacancies Reform Act of 1998, (5 U.S.C. § 3345) which spells out that Mr. Shulkin who was fired should be replaced by his second in command Tom Bowman. President Trump argued that since Mr. Shulkin resigned, he is not bound by the FVRA guidelines. But being ordered to submit a resignation letter still classifies as a firing.
Finally, President Trump appointed Mr. Wilke to be the VA Secretary on a permanent basis around July 2018 where he did undergo the US Senate confirmation process, which was within the 210 day limitation for an acting designation.
I’m betting that since President Trump managed to get away with this end run around the rules of the Federal Vacancies Reform Act of 1998, (5 U.S.C. § 3345) with the VA Secretary position, why not try it again with the US attorney general position.
But what he didn’t know is that there is a more specific statute, the Attorney General Succession Act (28 U.S.C. § 508) regarding succession requirements within the US Department of Justice that trumps the Federal Vacancies Reform Act of 1998. But then the US Constitution trumps both the above guidelines.
“We the People” are well aware that President Trump is desirous of squashing the FBI’s Trump-Russia probe being led by the Special Counsel Robert Mueller III, and that he put Mr. Whitaker in the position of Acting Attorney General to accomplish this goal.
So, it is not a surprise that there are those who want to take steps to bar the president and his Acting Attorney General Matt Whitaker from meddling in the FBI’s Trump-Russia investigation.
So far, democratic US senators and the State of Maryland have filed lawsuits to challenge the president’s placement of Matt Whitaker as acting attorney general on a constitutional basis.
Here’s the rest of the story…
On November 9, 2018, Alayna Treene of Axios penned the following report, “Reality check: Trump is wrong to compare Mueller and Whitaker
“President Trump is using Robert Mueller’s lack of Senate confirmation to defend his decision to name Matt Whitaker as his acting attorney general.”
Reality check: “Axios spoke with several legal experts and former DOJ officials about the legality of Whitaker’s appointment, and they told us that the key difference between Mueller and Whitaker is the seniority of their current positions, which makes Trump’s attempt to compare their lack of Senate confirmation irrelevant.”