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Having qualifications for the particular job you seek at Trump’s Russia House has always been a rather circuitous route to getting a job there. Trump doesn’t care about qualifications. Again to say that he’s a CEO misses that Trump Org is hardly a signature Fortune 500 company but a family business with Trump as the patriarch. That he runs sort of like a mob boss.

Loyalty not qualifications is what matters. Matthew Whittaker has little in the way of conventional qualifications for the top position in the American justice system but he knew the way to ‘President Trump’s heart: praise him on cable news and declare the Mueller investigation to be ‘going too far’, ‘illegitimate’ etc.

FN: Of course in retrospect Trump’s true eyes and ears has turned out not to be the unqualified Matt Whittaker but the very qualified Coverup AG Barr-he took the heat off of Bush Sr regarding Irangate and other scandals-how could anyone be more qualified for Trump’s nefarious purposes?

And Barr’s own clear bias and lack of objectivity for the job was just as abundantly clear as it was for Whittaker. So it turns out that in the case of AG Trump’s ticket to a ringer at Justice was having not an unqualified loyalist but rather someone just as loyal but competent, qualified and who understands the machinery of the agency

It’s easy to lose sight just what a five car alarm fire this actually is:

Seth Abramson:

 

Regarding Sessions, Abramson reminds you that Sessions himself is a person of considerable interest in the Russia probe:

FN: For Sessions the moniker is live by the sword die by the sword. While Trump never got over him recusing himself Sessions did many other things to please him-beginning with his awful civil rights and anti immigration policy-mass deportations detentions.

Sessions had cruelly fired Andy McCabe 26 hours before his pension in March 2018 at the same time Sessions was aware McCabe was investigating himself for perjury. Sessions compounded this by later calling on his staff to lie about when he learned he was under investigation.

In the end Sessions was fired for lack of loyalty to ‘President Trump’ just like McCabe was.

End of FN.

Indeed, regarding Sessions’ criminal liability, while Papadopoulos inexplicably insists he didn’t tell the Trump campaign about what Mifsud said about incriminating emails on Clinton, as we saw in (Chapter C) he told a patron at a Chicago bar in March that he did tell Sessions about the emails-this would implicate both he and Sessions in yet more perjury.

Marcy Wheeler has more in the Kreminology of Sessions’ huddle:

“Rod Rosenstein has not survived as a senior DOJ official for thirteen years, through three presidential administrations and serving both parties, without knowing how to flatter his bosses. And I suspect, in this case, those skills may serve the country well.

It was John Kelly who asked Sessions for his resignation-it was also Kelly who referred to Whittaker as Trump’s eyes and ears at Justice.

Consider some details in this important CNN report, describing how and with whom, after John Kelly asked Jeff Sessions for his resignation on Wednesday morning, the Attorney General of the United States huddled, talking strategy.

Sessions met with the Deputy Attorney General, the Solicitor General, the head of Office of Legal Counsel, and the Principal Deputy Assistant Attorney General.

John Kelly, the White House chief of staff, asked Sessions to submit his resignation, according to multiple sources briefed on the call. Sessions agreed to comply, but he wanted a few more days before the resignation would become effective. Kelly said he’d consult the President.

Soon, the sources say, top Justice officials convened on the 5th floor suite of offices for the attorney general.

Eventually, there were two huddles in separate offices. Among those in Sessions’ office was Deputy Attorney General Rod Rosenstein, his deputy Ed O’Callaghan, Solicitor General Noel Francisco and Steven Engel, who heads the Office of Legal Counsel.

“With the exception of O’Callaghan, all of those men outranked Whitaker so long as Sessions officially remained Attorney General. We don’t actually know when his tenure ended. Sessions’ resignation letter is not dated, much less time-stamped; while Sessions may not know how to date important letters like this, Rosenstein and O’Callaghan surely do, but somehow it did not get dated.”

FN: In retrospect it is certainly true that Rosenstein ‘is a survivor’ as Comey put it unflatteringly-if accurately-to Ben Wittes. We can debate how much this served the country. On one hand we now know how far Rosenstein’s flattery and kowtowing to the fake ‘President’ went. We have his talk of ‘your courtesy and humor’ in his resignation speech and we know know of his promise that I can land the plane. For more see Chapter A.

There’s also a real question of wether Mueller was pushed to shut things down after Coverup AG Barr got there. And we have Rosenstein’s involvement in pushing back against the Buzzfeed story that Trump directed Cohen to lie. Still OTOH you can argue that Rosenstein was able to at least allow Mueller to run his investigation for 20 months without it being summarily shutdown. While the question of wether Rosenstein helped obstruct the investigation is a legitimate one that needs to be pursued by the House-one particularly important question being if Mueller was shutdown early after Barr came in and what role Rosenstein might have played- it’s also questionable if the investigation would have gone forward at all without him.

Indeed, when he uttered that statement: I can land the plane this was his attempt to placate Fuhrer Trump after the NYT story about him joking about the 25th Amendment and wearing a wire when talking to the Fuhrer.

Note that McCabe has since corroborated that Rosenstein did talk about wearing a wire and he didn’t take it as a joke.

End of FN.

Judges and Justices, Rosenstein would point out two days later, “focus[ ] intently on the importance of the signed commission.”

We do know that when Trump tweeted about Whitaker’s appointment at 2:44 PM, he used the future tense — “will become,” not “is” — to describe Whitaker’s tenure as Attorney General.

“So for the sake of this Kremlinology, I will assume that Sessions remained Attorney General for the remainder of the day on Wednesday. That means that, for at least a half day after this went down, any orders he gave were binding and all those men huddling with him on Wednesday morning retained the relative seniority to Whitaker that they started the day with.”

“As CNN says in its report, the people huddling with Sessions included key players overseeing Mueller’s probe. Rosenstein and O’Callaghan provide the day-to-day oversight of the probe.”

The fact that Whitaker would become acting attorney general, passing over Rosenstein suddenly raised concerns about the impact on the most high-profile investigation in the Justice Department, the Russia probe led by Mueller.

The Mueller probe has been at the center of Trump’s ire directed at Sessions and the Justice Department. Whitaker has made comments criticizing Mueller’s investigation and Rosenstein’s oversight of it, and has questioned the allegations of Russian interference.

Rosenstein and O’Callaghan, the highest-ranked officials handling day-to-day oversight of Mueller’s investigation, urged Sessions to delay the effective date of his resignation.

“That day-to-day oversight is critical both to any claim that Mueller operates with constitutional authority and to any effort by Trump and Whitaker to undermine Mueller’s authority.”

“There’s been a lot of discussion as to wether Trump’s appointment of Whittaker is in fact constitutional. Apparently at least one important player in this huddle raised the question:

“But CNN doesn’t talk about the important role played in the probe by the other two Senate-confirmed figures in the room, Solicitor General Noel Francisco and OLC head Steven Engel.”

“As Michael Dreeben, who formally reports to Francisco, noted Thursday (that is, the day after this huddle) during his DC Circuit argument defending the constitutionality of Mueller’s authority, Francisco must approve any appeal Mueller’s team makes (presumably, he must approve any appellate activity at all). The arguments Dreeben made publicly Thursday — as well as whatever arguments Mueller submitted in a brief in sealed form in the Mystery Appeal that same day — were arguments made with the approval of and under the authority of the Solicitor General, the third ranking official at DOJ.”

Then there’s Engel. He’s the guy who decides, in response to questions posed by Executive Branch officials, how to interpret the law for the entire Executive Branch. It’s his office, for example, who would decide whether it would be legal for Mueller to indict the President. His office also interprets the laws surrounding things like the Vacancies Reform Act, whether any given presidential appointment is legal.

Which is why this passage of the CNN report is so significant.

At least one Justice official in the room mentioned that there would be legal questions about whether Whitaker’s appointment as acting attorney general is constitutional.

“In a room of men huddling with Jeff Sessions at a time he undeniably retained authority as Attorney General, at least one person — it might though is unlikely to be Sessions, it might be the Solicitor General who would argue the case legally, it might be the Deputy Attorney General or his deputy overseeing the Russian probe, it might be the guy who ultimately decides such things, or it might be several of them — at least one of those senior DOJ officials raised questions about whether Whitaker’s appointment would be constitutional. All of those men are sufficiently senior to ask Engel to write up a memo considering the question, and so long as Sessions retained the authority of Attorney General, he could decide whether to accept Engel’s advice or not. Sure, the President could override that (Obama overrode OLC, to his great disgrace, in Libya). But Trump would be on far shakier legal ground to do so without OLC’s blessing, and anyone operating in defiance of the OLC opinion could face legal problems in the future.”

“And an OLC opinion is precisely the kind of thing that Mueller’s team might submit to the DC Circuit — under the authority of the Senate approved and third-ranking Noel Francisco — in a sealed appendix to a challenge to Mueller’s authority.”

asked around this morning, of both those who think Whitaker’s appointment is not legal and those (like Steve Vladeck) who think it is. And it seems crystal clear: if Whitaker’s appointment is illegal, then that is a disability (just like recusal would be), and the regular DOJ succession would apply. In that case, the Deputy Attorney General would be acting Attorney General, for all matters, not just the supervision of the Special Counsel.

I don’t pretend to know what happened in that huddle or in the half day afterwards when Jeff Sessions uncontestedly retained his authority as Attorney General. I do know the rising House Judiciary Committee Chair has demanded that the paperwork behind it be preserved.

But I’m not really bugged that Rod Rosenstein is doing what he needs to do to remain the person who, if Whitaker’s appointment were illegal, would serve as the Acting Attorney General.”

FN: Again Bill Barr has proven to be what we all feared Whittaker would be-it turns out having someone just as corrupt and partisan as Whittaker but actually  competent at the job was much more effective for Trump’s nefarious purposes.

It’s not clear what Whittaker actually did-how much damage he in fact caused-in his time as Acting AG. The one case where the SC pushed back against a media report-the Buzzfeed story that asserted Trump directed Cohen to lie-directly; it’s pretty clear he did tell him to lie through counsel-was during Whittaker’s term-we soon learned that Rosenstein’s office pushed Mueller to do the push back.

What role may Whittkaer have had in that episode we don’t know. But the actions of Barr since he was confirmed are of much greater importance than what the Big Dick Toilet Salesman did during the short transition phase beginning with the fraught question of wether Barr forced Mueller to close up shop when he did.

Now let’s look at a little more from Abramson:

FN: Again we really do have to revise our overall assessment of Rosenstein based on all we’ve subsequently learned from Mr. I Can Land the Plane including any assumptions at what lines he may have or failed to have drawn for ‘President Trump’-after all we know how hard Rosenstein finds Trump’s ‘courtesy and good humor’ to resist.

Likewise while what happened during Whittaker’s time certainly can be researched and assessed for no little interest far more important is the Barr era that is ongoing. While Pelosi-Steny Hoyer-Hakeem Jeffries-Richard Neal and friends have been very timid in pursuing legitimate  and correctly predicted investigations-much less impeachment-into the fake ‘President’-on the other hand Barr harbors no such debilitating qualms in pursuing illegitimate and poorly predicated investigations into the Trump-Russia investigations themselves.

End of FN

What we have now is more obstruction of justice-with Whitaker himself a witness. The House Dems are clear they want to interview him as soon as they come to power in January.

But if Whittaker tries to rollback the Mueller investigation what is his recourse? Natasha Bertrand argues the courts.

“In a little-noticed hearing this week before the D.C. Circuit Court of Appeals, attorneys for Special Counsel Robert Mueller laid out how much authority the acting attorney general has over the Russia investigation, including the ability to reject a proposed subpoena and scuttle an indictment. Although on its face the hearing had little to do with Matthew Whitaker, the man President Donald Trump just appointed to the post, it raised fresh questions about how far Whitaker could hypothetically go in gutting the investigation—and how the special counsel could fight back.”

The hearing was actually brought about by Roger Stone’s assistant who’s been agitating to prove the investigation itself is somehow illegitimate:

“On Thursday, a three-judge panel considered a legal challenge to Mueller’s authority brought by an assistant to Roger Stone, the longtime Trump confidant who is being investigated by Mueller for his ties to Russia and WikiLeaks. The aide, Andrew Miller, has been trying to fend off a grand-jury subpoena issued by Mueller earlier this year. Miller’s lawyers tried to argue that Mueller’s work isn’t lawful, saying that he’s effectively acting as a principal officer of the U.S. government without having gone through the proper Senate confirmation process that position requires. (“Principal officers” include Cabinet officials, among other posts.) But Michael Dreeben, Mueller’s lawyer, insisted that Mueller doesn’t qualify as a principal officer, because he “has a regular reporting obligation to the acting attorney general.”

Who Mueller reports to is of major consequence. Jeff Sessions, the former attorney general, had recused himself from oversight of the federal Russia investigation, so Mueller reported to his deputy, Rod Rosenstein. Now that Trump has fired Sessions, those oversight responsibilities fall to his replacement, Whitaker, who has previously expressed skepticism about the scope of Mueller’s probe.

What’s clear is that Whittaker has ample tools to undermine Mueller’s probe if he wants to. What is Mueller’s recourse? One course of action is to directly challenge Whittaker’s legitimacy as acting AG:

“The D.C. circuit court is now examining what influence, if any, Sessions’s ouster and Whitaker’s appointment could have on the Miller case. It is possible that the court will decide that Rosenstein, not Whitaker, is Mueller’s rightful boss, according to Neal Katyal, a former acting solicitor general under President Barack Obama.”

“Short of that conclusion, however, Mueller may have some recourse in the event that Whitaker maintains control over the investigation and attempts to either suppress it or shut it down. Several legal experts have argued that Trump’s appointment of Whitaker may have been unconstitutional. At issue is the same question of who qualifies as a principal officer. Because Whitaker reports directly to the president, he is a principal officer, these experts say, and would have required Senate confirmation.”

Yes-that George Conway, Kellyann Conway’s George Conway…

Questions over Whitaker’s legitimacy could work to Mueller’s advantage, according to Jens David Ohlin, a professor at Cornell Law School who specializes in criminal law. Ohlin explained that Mueller could challenge Whitaker’s appointment in federal court on both statutory and constitutional grounds, the latter of which is “most likely to succeed.”

“In order to get either of these issues before a federal court, someone needs standing to bring the claim, which means they’ve been specifically harmed,” Ohlin told me. “If Mueller is fired, which is Whitaker’s ‘nuclear option,’ Mueller certainly has standing to object to Whitaker’s appointment.”

He added that Trump’s decision to appoint a “constitutional nobody” to head the Justice Department “is so far from mainstream practice” that a federal court would likely “scrutinize this carefully and would be skeptical that this is consistent with the [Constitution’s] Appointments Clause,” which outlines how appointments are to be made. Before he went to work at the Justice Department under Sessions, Whitaker served as the U.S. attorney for the Southern District of Iowa from 2004 to 2009, then worked in private practice and appeared as a cable-news pundit throughout 2017.

UPDATE: Emptywheel also has a post on the testimony of Mueller’s team in the DC Court hearing. Mueller’s team laid out all the many things they can do without needing clearance from the AG-Whittaker or maybe still Rosenstein 

In any case Trump may be too late if most of Mueller’s work is done:

And one way or the other Mueller’s findings will see the light of day:

If Whitaker were to refuse to release Mueller’s final report, for example, Mueller and the grand jury could make their evidence available to Congress through a report transmitted by the court, as the former Watergate prosecutorsRichard Ben-Veniste and George Frampton recently noted. And “with the fox now guarding the henhouse,” they wrote, “there is sufficient precedent” for them to do so.”

FN: As noted above, however, while Whittaker’s time as Acting AG is something of a black box even more important is the  much larger and more black box  of the continuing reign of Coverup AG Barr.

Hopefully the House Democrats have a plan to get to the bottom of all this before the 2020 election. Often you wonder if the goal isn’t simply to role out the clock-while Pelosi and Friends may believe that brilliant political strategy it may work out the opposite as Alan Litchman argues.

 

 

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October 28, 2016: a Day That Will Live in Infamy Copyright © by . All Rights Reserved.

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