The appointment of Matthew Whitaker as acting attorney general has created quite a bit excitement on the left. It has placed most of the left and Never Trump in the position of claiming the very future of the nation relied upon Jeff Sessions–previously derided as a racist and all manner of bigot–remaining in office. And, much as they did when Mick Mulvaney was appointed to oversee the Consumer Financial Protection Bureau, they are insisting that President Trump has no authority to appoint as his successor anyone but a person who will carry on business the way the Democrats wish.
The bitching about Whittaker being given the temporary promotion morphed into an epic Manichean struggle, in the eyes of the left, when it was revealed that [shocked face!] Whittaker was a Trump supporter and [breathless gasp!] that he was skeptical that Mueller’s investigation was doing much more than keeping alive the ridiculous claim that Russia handed the 2016 election to Trump. This is a fiction the Democrats desperately need to keep alive in order to keep their base motivated.
67 percent of Democrats believe it is "definitely true" or "probably true" that "Russia tampered with vote tallies in order to get Donald Trump elected." There is no evidence of Russia tampering with vote tallies. pic.twitter.com/mgSx3MEtnQ
— Peter J. Hasson (@peterjhasson) November 18, 2018
Now three Democrat senators have filed a lawsuit claiming that despite the law that President Trump can’t appoint Whittaker as acting attorney general essentially because the law doesn’t read the way the Democrats want it to read.
Sens. Richard Blumenthal (D-Conn.), Sheldon Whitehouse (D-R.I.) and Mazie Hirono (D-Hawaii) filed a complaint in the U.S. District Court for the District of Columbia on Monday, claiming that Trump violated the Appointments Clause of the Constitution by choosing Whitaker for a Cabinet-level position even though Whitaker has never been Senate confirmed for a position. The complaint seeks to block Whitaker from serving in the role, which includes overseeing special counsel Robert Mueller’s investigation of Russian interference in the 2016 election.
Hirono in a statement Monday argued that the Appointments Clause bars Whitaker from serving as acting attorney general because in her view, it states that “principal officers who report directly to the President must be subject to a hearing and confirmed by the Senate.”
“Installing Matthew Whitaker so flagrantly defies constitutional law that any viewer of School House Rock would recognize it. Americans prize a system of checks and balances, which President Trump’s dictatorial appointment betrays,” Blumenthal said, claiming that Trump skirted the issue of having Whitaker confirmed because “Whitaker would never pass the advice-and-consent test.”
— Chris Geidner (@chrisgeidner) November 19, 2018
Glad to see this third lawsuit challenging Whitaker’s appointment, brought by three US Senators whose Art. II, Sec. 2 power to give “Advice and Consent” on principal officers like acting AG was unconstitutionally nullified by his installation to run DOJhttps://t.co/iGLXcISVsh
— Laurence Tribe (@tribelaw) November 19, 2018
The Department of Justice’s Office of Legal Counsel issued a 20-page opinion asserting that the appointment of Whittaker is legitimate. But, even without that letter, the objections in the lawsuit are easily dismissed. For instance, these yahoos are saying that recess appointments are illegal. And the Congressional Research Service’s analysis of the Vacancies Act says:
Section 3345 allows three classes of government officials or employees to temporarily perform the functions and duties of a vacant advice and consent office under the Vacancies Act.71 First, as a default and automatic rule, once an office becomes vacant, “the first assistant to the office” becomes the acting officer.72 The term “first assistant” is a unique term of art under the Vacancies Act.73 Nonetheless, the term is not defined by the Act and its meaning is not entirely clear.74 For many offices, a statute or regulation explicitly designates an office to be the “first assistant” to that position.75 However, this is not true for all offices, and in those cases, who qualifies as the “first assistant” to that office may be open to debate.76
Alternatively, the President “may direct” two other classes of people to serve as an acting officer of an agency instead of the “first assistant.”77 First, the President may direct a person currently serving in a different advice and consent position to serve as acting officer.78 Second, the President can select a senior “officer or employee” of the same executive agency, if that employee served in that agency for at least 90 days during the year preceding the vacancy and is paid at a rate equivalent to at least a GS-15 on the federal pay scale.79
All of these avenues are equally open to the President, he doesn’t have to follow them in any sequence.
I think we all know how this will shake out. The Democrats will find, with relative ease, a stump broke or allied federal judge to rule that Trump can’t appoint Whittaker. The administration will appeal and will prevail upon appeal…much like what happened with the so-called travel ban.
The sole purpose of the lawsuit is to raise money off the trust-fund #Resistance by showing that the Democrats in the Senate are fighting. I don’t know how long they can keep this going but, to paraphrase the words attributed to H. L. Mencken, “No one ever went broke underestimating the intelligence of Democrats.”
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