Drudge Retort: The Other Side of the News
Thursday, November 08, 2018

He said there are only three ways someone can become acting attorney general: if they are the deputy attorney general and the president signs an executive order to make them acting attorney general, if they are already at the Justice Department in a job that both required and received Senate confirmation or if the Senate in in recess, they can be a recess appointment. He said none of those apply in this case, as Whitaker is not deputy attorney general, he did not receive Senate confirmation for his current role at the DOJ and the Senate is not in recess.

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The thing that bothers me is why this wasn't the first thing out of Schumer's and Pelosi's mouths yesterday rather than demanding recusal?

#1 | Posted by Hagbard_Celine at 2018-11-08 01:54 PM | Reply

Hag,

Matthew Whitaker joined the Trump Justice Department as Sessions's chief of staff in October 2017. The date is relevant. The president has named him as acting attorney general under the Vacancies Reform Act of 1998 (the relevant provisions are codified at Sections 3345 and 3346 of Title 5, U.S. Code). There has been some commentary suggesting that because Whitaker was in a job (chief of staff) that did not require Senate confirmation, he could not become the "acting officer" in a position (AG) that calls for Senate confirmation. Not so. The Vacancies Act enables the president to name an acting officer, who may serve as such for 210 days, as long as the person named has been working at the agency or department for at least 90 days in a fairly high-ranking position. Whitaker qualifies.

www.nationalreview.com

#2 | Posted by JeffJ at 2018-11-08 02:26 PM | Reply | Newsworthy 1

It does seem that Humpy is trying to pull a fast one. (isn't he always?)

Humpy is trying to pull another Okie Dokie on us!

Just another Humpy Bamboozle.

Another Humpy Hoodwink.

#3 | Posted by donnerboy at 2018-11-08 02:43 PM | Reply | Funny: 1

the National Review could claim the Moon is Made of Cheese

and jeffyj would be here ------------ slavishly insisting it's all true

its almost like that is the one and only place he gets all his opinions from

#4 | Posted by ChiefTutMoses at 2018-11-08 02:59 PM | Reply | Newsworthy 1

I will take your "National Review" and raise you a Steven Calabresi!

Once again the passage of time proves the "conservatives" greatest enemy! TEEHEE!

Both Calabresi and the Trump Chumps referred to the appointments clause and claimed "A principal officer must be confirmed by the Senate" in an attempt to get rid of mueller

But it turned out Mueller is defined as a "inferior officer". I wonder if the national review will be elaborating on that. just kidding

So Sad to be jeffyj

#5 | Posted by ChiefTutMoses at 2018-11-08 03:15 PM | Reply | Funny: 1 | Newsworthy 1

Here's the real issue - if the attorney general resigns, the deputy attorney general becomes the acting attorney general. That would be rod rosenstein. So why isn't rod rosenstein acting attorney general now?

We all know the answer to that - because rosenstein wouldnt help trump obstruct justice.

#6 | Posted by SpeakSoftly at 2018-11-08 09:47 PM | Reply | Newsworthy 1

Sorry gang, on this one Jeff is correct. Whitaker's appointment was made under a different statute and he qualifies under that one for 210 days. That's the time limit under said statute where he can be acting director without Senate confirmation.

#7 | Posted by tonyroma at 2018-11-08 10:05 PM | Reply

The thing that bothers me is why this wasn't the first thing out of Schumer's and Pelosi's mouths yesterday rather than demanding recusal?

#1 | POSTED BY HAGBARD

That's why I've been saying for years the Democrats need to change their party animal to the spineless jellyfish.

#8 | Posted by aborted_monson at 2018-11-08 10:14 PM | Reply

Stop the presses! We have an alternate assertion here:

Whitaker's Appointment as Acting Attorney General Is Statutorily Illegal

...{T}he Vacancies Act does not apply when "a statutory provision expressly -- (A) authorizes ... "the head of an Executive department, to designate an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity; or (B) designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity" (5 U.S.C. § 3347(a)(1)).

And it turns out that there is a more specific statutory provision for the Department of Justice. 28 U.S.C. § 508 states:

OMG, all the legalese in this article is making my head hurt, but basically I guess it depends which side of the interpretation you like and you can argue either legal/illegal under the Vacancies Act.

I'll leave it for our resident counselors to give us an edited version.

#9 | Posted by tonyroma at 2018-11-08 10:16 PM | Reply

#2 | Posted by JeffJ

#7 | Posted by tonyroma

Depends, while the general VRA is a possible alternative there, nevertheless, is a specific statute regarding vacancies in the attorney generals office. That statute specifically assigns the duties of the now vacant AG to Rosenstein. www.law.cornell.edu

Which prevails is an undecided question and there are arguments both ways. www.justsecurity.org
www.lawfareblog.com

Bottom line, Whitaker is there and there is no quick and easy solution, so he'll remain for now. As the Just Security article points out, the immediate question is if and how far can he interfere or restrain Mueller.

#10 | Posted by et_al at 2018-11-08 10:31 PM | Reply | Newsworthy 1

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#10

NW.... and according to James Clapper, the distinct possibility is that Whitaker will be there just long enough to drive the details of Mueller's case over to the White House for Trump and his lawyers to peruse.

#11 | Posted by Corky at 2018-11-08 10:56 PM | Reply

This Faux News "lawyer:" is mistaking a lot of precedent for law.

#12 | Posted by IndianaJones at 2018-11-08 11:04 PM | Reply

Is Trump's appointment of Whitaker as "acting" AG legal?

Perhaps. But perhaps not. There are two possible bases for challenging the legality of the Whitaker appointment.

Who would have standing to challenge the legality of the Whitaker appointment? And when might a court rule on it?

www.justsecurity.org

#13 | Posted by Gal_Tuesday at 2018-11-08 11:17 PM | Reply

#10 Sorry, didn't see this:

Which prevails is an undecided question and there are arguments both ways. www.justsecurity.org

#14 | Posted by Gal_Tuesday at 2018-11-08 11:20 PM | Reply

ET AL

"how far can he interfere or restrain Mueller."

Considering that Whitaker is just there to plug a hole and could face obstruction of justice charges himself if he interferes, I can't imagine that he's going to do much more than hold down the fort until Trump bring in the big gun who will defend him to gory end.

Trump doesn't have time to run out the clock. Also, the recounts in process are looking like the Senate majority isn't as secure as Trump once thought.

It's only a guess of course, but this "who's on first" situation in the Justice Department will probably be over in a matter of days. As I said above, time isn't Trump's friend.

#15 | Posted by Twinpac at 2018-11-08 11:22 PM | Reply

Does anyone actually think this guy is anywhere near being the most qualified person for the job?

#16 | Posted by johnny_hotsauce at 2018-11-08 11:40 PM | Reply

Maura Healey @MassAGO

Acting AG Whitaker's hostility to the Special Counsel's investigation disqualifies him from overseeing Robert Mueller. We are leading 18 state attorneys general in calling on Whitaker to recuse himself immediately. #ProtectMueller

twitter.com

#17 | Posted by Gal_Tuesday at 2018-11-08 11:45 PM | Reply

Does anyone actually think this guy is anywhere near being the most qualified person for the job?

He's not, nor he will be, be appointed to the job, he is a placeholder.

If he tries to do anything other than keep the seat warm it will be a big issue.

Otherwise, this is all sound and fury...

#18 | Posted by Rightocenter at 2018-11-08 11:48 PM | Reply

Otherwise, this is all sound and fury...

#18 | Posted by Rightocenter

No one has ever gone broke betting that trump is doing something manipulative/illegal to benefit himself.

#19 | Posted by SpeakSoftly at 2018-11-09 12:37 AM | Reply

SPEAK

"No one has ever gone broke betting that trump is doing something manipulative/illegal to benefit himself."

It took a couple years to sink in but Trump finally figured out that he can't bluster his way around the law single-o ~ which says a lot about his fragil grip on reality. A sane person would know that smarter men than him have tried and went down in flames. If history is any teacher, the same will happen to him.

It may seem like an eternity to us right now but retribution is headed his way ~ on a rail.


#20 | Posted by Twinpac at 2018-11-09 04:50 AM | Reply

To me, the real question is about right and wrong. Either you support Trump's attempt to ignore advise and consent or you approve of it. The Constitution is pretty clear and no law can supersede the Constitution.

"The heads of the executive departments and all other federal agency heads are nominated by the President and then presented to the Senate for confirmation or rejection by a simple majority (although before the use of the "nuclear option" during the 113th US Congress, they could have been blocked by filibuster, requiring cloture to be invoked by ​3⁄5 supermajority to further consideration). If approved, they receive their commission scroll, are sworn in and then begin their duties.

An elected Vice President does not require Senate confirmation, nor does the White House Chief of Staff, which is an appointed staff position of the Executive Office of the President."

en.wikipedia.org

#21 | Posted by danni at 2018-11-09 08:01 AM | Reply

What are we waiting for ? Where is the injunction?

#22 | Posted by fresno500 at 2018-11-09 09:13 AM | Reply

Jeffy's and Spork's heads be exploding...

#23 | Posted by e1g1 at 2018-11-09 09:55 AM | Reply

Liar-in-chief:

Daniel Dale @ddale8

Per pool: Trump said "I don't know Whitaker," his new acting attorney general, and that he hasn't spoken to Whitaker about the Mueller investigation. He also said Whitaker is "highly thought of."

Extended quote: "Well Matt Whitaker, I don't know Matt Whitaker. Matt Whitaker worked for Jeff Sessions. And he was always extremely highly thought of, and he still is. But I didn't know Matt Whitaker. He worked for Attorney General Sessions."

Natasha Bertrand @NatashaBertrand

"As Sessions's chief of staff, Whitaker met with the president in the Oval Office more than a dozen times...When Trump complained about the Mueller investigation, Whitaker often smiled knowingly and nodded in assent."

#24 | Posted by Gal_Tuesday at 2018-11-09 10:35 AM | Reply

Bill Kristol @BillKristol

Our new alleged Acting AG on confirming judges:
"I'd like to see...Are they people of faith? Do they have a biblical view of justice?...New Testament...And what I know is as long as they have that worldview, that they'll be a good judge."

#25 | Posted by Gal_Tuesday at 2018-11-09 10:38 AM | Reply

"Do they have a biblical view of justice?"

So I can have slaves if they're from Canada or Mexico?!? Kewl!

#26 | Posted by Danforth at 2018-11-09 10:40 AM | Reply

What are we waiting for ? Where is the injunction?

He hasn't done anything yet so there might be concerns with standing. The moment he does something Mueller doesn't like (hacks away at his budget, denies authorization for subpoena, etc) I'm certain Mueller will make a dramatic move against him.

#27 | Posted by JOE at 2018-11-09 10:53 AM | Reply

Lies, lies and more lies:

Rep. Steve King says he spoke with Trump in the Oval, Oct. 2, about Matt Whitaker's qualifications for either Sessions' job or Rosenstein's. King: "The president said he was a Whitaker fan. And he asked me to call Matt, and tell him that he loves him."

Trump had already spoken personally with Whitaker in late September about the possibility of replacing Sessions, a West Wing aide told DailyMail.com last month.

A senior Republican said then that Whitaker was in a 'grooming exercise' to become attorney general, and had been expected to replace Rosenstein on an acting basis until his planned resignation evaporated in September.

www.dailymail.co.uk

#28 | Posted by Gal_Tuesday at 2018-11-09 11:17 AM | Reply

Gee, I wonder what could have made Trump fall in love with Whitaker? Power corrupts and absolute power corrupts absolutely, but Trump is president, not king or dictator. There has to be a way to stop him and show him that he is not above the rule of law.

#29 | Posted by Gal_Tuesday at 2018-11-09 11:24 AM | Reply

"There has to be a way to stop him and show him that he is not above the rule of law." - #29 | Posted by Gal_Tuesday at 2018-11-09 11:24 AM

Gal, here's something to ponder:

One minute after he was appointed acting AG, Whitaker could have ordered that every single file and piece of evidence in the Mueller investigation be delivered to the White House.

And nothing could be done about that.

#30 | Posted by Hans at 2018-11-09 11:28 AM | Reply

Whitaker was forced to shut down his business and pay a 26 million dollar fine for being fraudulant 6 MONTHS AGO.

Trump loves crooks.

Crooks help crooks.

#31 | Posted by SpeakSoftly at 2018-11-09 11:44 AM | Reply | Newsworthy 1

Neal Katyal @neal_katyal

Wow. The Court of Appeals, in a case challenging Mueller, now orders briefing on impact of the Sessions firing & installation of Whittaker. It is possible for parties to take the view that his boss is the legitimate Rosenstein, not the pretend-Attorney General Trump wants to have

twitter.com

#32 | Posted by Gal_Tuesday at 2018-11-09 12:13 PM | Reply

That were even in this debacle shows what a ---- show this country has become under Trump.

#33 | Posted by jpw at 2018-11-09 12:56 PM | Reply

Colin Campbell @colincampbell

Trump in October: "I know Matt Whitaker"

35. "Well, I never talk about that, but I can tell you Matt Whitaker's a great guy. I mean, I know Matt Whitaker. But I never talk about conversations that I had."

www.cnn.com

#34 | Posted by Gal_Tuesday at 2018-11-09 12:59 PM | Reply

... the immediate question is if and how far can he interfere or restrain Mueller.
Apparently, the judiciary is stepping into the void by ordering Mueller and attorneys for a former aide to Roger Stone to assess the impact on their cases of the recent DOJ shakeup.

A federal appellate court panel on Friday ordered Robert Mueller as well as attorneys trying to knock the special counsel out of his job to file new legal briefs that explain how this week's shake-up atop the Justice Department could influence their case.

www.politico.com

#35 | Posted by FedUpWithPols at 2018-11-10 06:44 AM | Reply

Imagine that Obama was under investigation for stealing the election with help from a foreign adversary and he fired his AG and appointed a known criminal to end the investigation without consulting Congress.

#36 | Posted by JOE at 2018-11-10 08:12 AM | Reply | Newsworthy 1

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