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Will the Real Attorney General Please Stand Up?
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Last week’s surprise forced resignation of Jeff Sessions as attorney general of the United States set in motion a series of events that will soon resonate in all corners of the Department of Justice.

President Donald Trump has been steamed at Sessions ever since Sessions removed himself from supervision over the DOJ’s investigation into whether a conspiracy existed between Russian agents and the Trump campaign in 2016 for the Russians to provide assistance to the campaign — a felony.

Sessions’ recusal was perfectly rational and ethically required; he had been a high-ranking official in the campaign and would probably be interviewed as a witness in the investigation. Because ethics rules prohibit DOJ officials from being witnesses in cases that they supervise, Sessions passed the case to his deputy, Rod Rosenstein, who promptly appointed former FBI Director Robert Mueller as special counsel to head the investigation.

When the special counsel began flexing his prosecutorial muscles a little too close to Trump Tower and the Oval Office for Trump’s comfort, Trump’s blood pressure rose, and he asked Sessions to sign and deliver an undated letter of resignation, which Sessions did. On Nov. 7, the day after the midterm elections delivered the House of Representatives comfortably to the Democrats, Trump released the still-undated letter, and Sessions was out of a job.

Then Trump began another legal firestorm by naming Sessions’ chief of staff, Matthew Whitaker, acting attorney general. He did this even though the federal statutes governing succession in the DOJ state that upon a vacancy in the office of attorney general, the deputy attorney general — in this case, the same Rod Rosenstein — shall become the acting attorney general.

In bypassing Rosenstein for Whitaker, Trump has added to the woes he will face when the Democrats take control of the House in early January. That’s because of lingering and now public doubts about Whitaker’s professional qualifications for office and clear statutory language that makes him legally ineligible to be acting attorney general.

Here is the back story.

Every federal executive department, from Defense to Treasury to Justice, has a principal officer — usually called the secretary but called the attorney general for Justice — and a deputy. Neither position can be occupied without a presidential appointment and a Senate confirmation.

The main purpose of the deputy is to be ready to fill in for the principal when that office becomes vacant. Congress created the office of deputy attorney general for the express purpose of having a presidentially appointed and Senate-confirmed person in the wings should the attorney general’s office fall vacant. On Nov. 7, the office fell vacant.

Should the president wish to bypass the deputy attorney general, he may do so, but he may only designate a person who already occupies a DOJ position that is presidentially appointed and Senate-confirmed. Whitaker, Sessions’ former chief of staff, was not in a presidentially appointed or Senate-confirmed job at the time Trump named him acting attorney general.

ORDER IT NOW

Whoever runs the DOJ has such vast power over its 90,000 employees, including the FBI — not to mention that he or she is seventh in the presidential line of succession and has the unchecked power to commence criminal investigations, seek and obtain indictments, and terminate criminal investigations already begun — that Congress passed statutes to ensure that no one could hold that job who has not been scrutinized by the rigors of Senate confirmation.

In Whitaker’s case, that scrutiny — if it were to happen — would show a person whose legal thinking is so far outside the mainstream as to create material doubt about his professional qualifications. He recently offered public comments questioning the equality of the three branches of the federal government and challenging the constitutional power of the courts to engage in judicial review.

By saying the courts “are supposed to be the inferior branch” of the government, he has denied a fundamental principle of the Constitution — a truism, if you will — namely, that all three branches (Congress, the president and the judiciary) are coequal. And by questioning the power of the courts to review and void the unconstitutional behavior of Congress, the president and state and local governments, Whitaker has revealed an attraction to legal thinking that is profoundly at odds with 215 years of consistent American jurisprudence.

This is why you should care about who runs the Department of Justice. This is why the Constitution and federal law require that whoever is picked to run the DOJ be confirmed by the Senate. Because the Senate confirmation process is so rigorous, it exposes legal thinking on the part of the nominee, and if that thinking is at odds with basic American legal principles, the process gives senators the opportunity to challenge it.

Without the constitutionally and statutorily required Senate confirmation, a president could put any political hack he likes in charge of the DOJ and the FBI — and thus all federal prosecutions and criminal investigations — wreaking havoc on the rule of law.

Add to this, Whitaker will supervise the special counsel, whose current job is to investigate the president for potential criminal wrongdoing or impeachable offenses. It is contrary to the rule of law that the subject of a criminal investigation — which Donald Trump currently is — could select his own prosecutor.

The whole purpose of the rules and procedures of the special counsel is to keep that office insulated from the political process, immune from the political power of the people the office is investigating, and substantially within the professional judgment of politically independent prosecutors at the DOJ.

Litigation has been filed to remove Whitaker from the office he claims to hold. The courts have not done this before. The president should save them from this unpleasant but necessary task. Once Whitaker is removed, all of his official work will be void. Try putting that toothpaste back into its tube.

Copyright 2018 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Donald Trump 
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  1. “… a conspiracy existed between Russian agents and the Trump campaign in 2016 for the Russians to provide assistance to the campaign — a felony.”

    If you are youing to accuse someone of a felony, you need to better lay out the specific felony crime and the person you are alleging committed that crime. Otherwise, your statement is little more than inflammatory blather.

    “He did this even though the federal statutes governing succession in the DOJ state that upon a vacancy in the office of attorney general, the deputy attorney general — in this case, the same Rod Rosenstein — shall become the acting attorney general.”

    Re-read 28 USC § 508 … it uses ‘may’ rather than ‘shall.’ This issue is not cut and dry, but the President and Whittaker would be on better footing if he had been a Principle Officer rather than an Inferior Officer who might technically qualify under the FVA.

    “By saying the courts “are supposed to be the inferior branch” of the government, he has denied a fundamental principle of the Constitution — a truism, if you will — namely, that all three branches (Congress, the president and the judiciary) are coequal. “

    Let’s look at Article 3, Section 1:

    The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

    While you are at it, scan the rest of the Constitution for wording to the effect that the three branches of government are co-equals: I can’t seem to find wording to that effect. What I see are three branches, each assigned specific roles and responsibilities, with SCOTUS taking the lead on exercising judicial power, whatever that means. It probably did not include judicial review of the laws enacted by the other two branches, but that is a useful function when exercised in moderation.

    And the Constitution refers itself to inferior courts, so I’m going to give Whittaker the benefit of the doubt that he might haven taken out of context. I’m a firm believer that the inferior Federal courts of the US are operating way out of bounds in many of the cases where they step in to thwart the will of the Peoples’ representatives and the Executive in the enforcement of the laws they have enacted. If SCOTUS wants to weigh in on the constitutionality of an EO, fine, but district court, circuit court, or appellate court judges should not have the power to bring the machinery of government to a grinding halt on a national level, and if they have any proper role in judicial review, it should only be with respect to application of due process to specific persons vis á vis specific federal agencies within their assigned jurisdiction.

    “The whole purpose of the rules and procedures of the special counsel is to keep that office insulated from the political process ….”

    Yeah, that’s working out really well, isn’t it? Judge, this whole thing is political, and the appropriate response is to turn up the political heat to keep it in line. The Special Counsel is not a Fourth Branch unaccountable to only himself.

    • Agree: KenH
    • Replies: @Macon Richardson
    , @Christo
  2. KenH says:

    According to other legal experts a president does have the authority to install an interim AG other than the deputy AG for 90 days, but some have said even 180 days. There doesn’t seem to be a hard and fast law or rule that requires the automatic ascension of the deputy AG which is good because Rosenstein is a Jewish leftist.

    The Mueller investigation has gone on for nearly 18 months and still not a scintilla of evidence of collusion between the Trump campaign and the wily and wicked Vladimir Putin. All of Mueller’s deputies have deep ties to the Democrat party and ultra left wing establishment in D.C., so they aren’t exactly neutral and dispassionate in their quest for the truth.

    This whole sordid affair has degenerated into a political witch hunt and a “show me the man and I’ll find the crime” type investigation eerily similar to the Soviet Union. Roger Stone and Jerome Corsi are the latest victims and are now likely facing indictments for being political enemies of the Democrat political establishment.

  3. anonymous[340] • Disclaimer says:

    ” … the subject of a criminal investigation — which Donald Trump currently is …”

    Is this now so? I remember months ago reading that the Special Counsel had said just the opposite. But everyone involved — including Mr. Napolitano for the past year — has dissembled and contradicted himself so much that I’ve lost track.

  4. @The Alarmist

    Alarmist, noted 28 USC § 508(a) but you neglected to note 28 USC § 508(b) which states

    (b) When by reason of absence, disability, or vacancy in office, neither the Attorney General nor the Deputy Attorney General is available to exercise the duties of the office of Attorney General, the Associate Attorney General shall act as Attorney General. The Attorney General may designate the Solicitor General and the Assistant Attorneys General, in further order of succession, to act as Attorney General.

    In addition, you neglected to note 5 U.S. Code § 3345 – Acting officer which make very clear that Mr. Whitaker should not be in line for the office he has been assigned by the president.

    That having been said, I acknowledge (no, I proclaim) that the Mueller investigation is and was from the beginning so tainted as to make it outside the law. So too, are critical members of the Department of Justice and it’s boy-child, the FBI. So too, are critical members, present and former, of the CIA as well.

    The question as I see it it how does one stop these illegal forces that are now in action. The same question applies to voter fraud. When state government participates in voter fraud or ignores it, how does one combat it? Today it is on-going in Florida. So, too, in the 2000 election. Of course, a Constitutional remedy existed in 2000, Art. II, §1 (3) but there the Supreme Court usurped its authority as it usurped its authority in Marbury v Madison in 1803. It is Marbury you speak of when you assert that the Constitution gives no rights to the Supreme Court to judge issues as it has done since that case. In that, I completely agree.

    Yet the question still remains: How does one stop the illegal forces that are now in action, both the Trump witch hunt and today’s horror, the Florida ‘vote’ recount. I have no idea nor, I suppose, do you. Among lesser breeds without the law, one has a military coup to sort the bad guys out. Of course, sometimes the bad guys who are sorted out are the ones who institute the coup,

  5. David JW says:

    Look, I’m not American and shouldn’t intrude. However, I’m English and saving America would be a big step towards saving all white nations. The US constitution provides for three branches of government with the President controlling the executive. So statutes specifying who the President may appoint to executive positions are unconstitutional – and would require a constitutional amendment and not just a Congressional statute.

    • Replies: @Bubba
  6. Christo says:
    @The Alarmist

    “I’m a firm believer that the inferior Federal courts of the US are operating way out of bounds in many of the cases where they step in to thwart the will of the Peoples’ representatives and the Executive in the enforcement of the laws they have enacted. If SCOTUS wants to weigh in on the constitutionality of an EO, fine, but district court, circuit court, or appellate court judges should not have the power to bring the machinery of government to a grinding halt on a national level, and if they have any proper role in judicial review, it should only be with respect to application of due process to specific persons vis á vis specific federal agencies within their assigned jurisdiction.”

    This is a perfect synopsis of the problem. Only the SCOTUS should have equal or nullifying power to the other branches actions. Of course Judaic law and lawyers/judges of the same have made a total mockery of this aspect of the Constitution and the limits it set on the Judicial Branch.

  7. nickels says:

    It’s far beyond time to abolish the courts.

    • Replies: @jack daniels
  8. Bubba says:
    @David JW

    Hey David, you seem to be sincere and a good guy, so if I may give you a bit of advice from America – please completely ignore the absolute buffoons like Andrew Napolitano. He’s an ex-judge that wants an open border in American and he actively is trying to get rid of white Americans. He is a complete fraud. Just read previous articles written by this sanctimonious Pharisee Judas (and then the bloody outrage of comments that follow). Napolitano despises white Americans and wants to accept every 3rd world gang banger to invade the U.S. and murder us. It’s a trendy common theme among the Global Glitterati like Napolitano to destroy white working class America.

  9. MarkinLA says:

    President Donald Trump has been steamed at Sessions ever since Sessions removed himself from supervision over the DOJ’s investigation into whether a conspiracy existed between Russian agents and the Trump campaign in 2016 for the Russians to provide assistance to the campaign — a felony.

    Well fromn everything I have read or heard this is not technically a crime, let alone rising to a felony. However, instead of constantly bleating out nonsense maybe the judge can cite the actual law broken in question and how it was broken.

  10. KenH says:

    Maybe the real Attorney General will stand up when the real Judge nappy does.

  11. “Last week’s surprise forced resignation of Jeff Sessions as attorney general . . .”

    “Surprise”, Judge?? I stopped reading right there.

  12. ” in this case, the same Rod Rosenstein — shall become the acting attorney general.”

    I don’t think that us correct. According to the Vacancy Act, the president of the US has the authority to appoint whosoever he chooses to fill a vacancy. There is no command of succession.

  13. @Macon Richardson

    And if you read further down the act, it states quite clearly.

    “Alternatively . . .”

    There is mandatory line of succession.

  14. @Macon Richardson

    correction:

    There is no mandatory line of succession.

  15. @nickels

    I think it’s far beyond time to abolish Judge Napolitano. Talk about a “hack.” This guy is nothing more than a TV talking head BS artist and not a very interesting one either. One thing that has become increasingly clear in the last few years is that the law is a joke where the powerful are concerned. Look at the unpunished IRS abuses, the feather-light sentence of Jeffrey Epstein, the Clinton Foundation’s myriad shenanigans, the FBI’s weaponized subservience to the “anti-hate” fanatics, Rudy Giuliani’s “lock her up” BS followed by instant abandonment of the idea once Trump was elected and it became a possibility. Trump may or may not be sincere but his supporting cast is so pathetic that we’ll never know. As a Trump voter I would say the Dems are slightly closer to sincerity, for what it’s worth. Anyway Judge Andrew writes as if he just finished a high school civics textbook at an undistinguished high school.

    • Replies: @Jim Bob Lassiter
  16. @jack daniels

    Those that can’t do teach. Those that can’t lawyer or get a job as a tenured law professor run for judge in some atomized clusterfuck polyglot jurisdiction like New Jersey.

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