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Friday, November 09, 2018


A law unto himself

by Tom Sullivan

The sitting president "treats the Constitution like a tax code, something he can loophole this way or that," Neal Katyal told MSNBC's Chris Hayes Thursday night. In a New York Times op-ed written jointly with attorney George Conway, the former acting solicitor general under President Barack Obama branded Donald Trump's installation of Matthew Whitaker as acting attorney general both unconstitutional and illegal.

"This really underscores the wisdom of our founders," Katyal said. "This is something actually that Justice Thomas, who is the president's favorite justice, wrote about 3 years ago. He said the founders said we distrusted the idea that any one president, no matter how wise, wouldn't abuse his powers and nominate people or install people to department heads like the Attorney General and abuse their authority."

Hayes added that Fox News legal commentator Andrew Napolitano agreed Whitaker "does not qualify under the law" for the job. The post must go to someone confirmed by the Senate.

Whitaker's installation over Deputy Attorney General Rod Rosenstein is seen as a clear move by the president to have a toady oversee and/or quash the investigation into the Trump campaign's ties to Russia by special counsel Robert S. Mueller III. News sources have spread a lot of pixels detailing Whitaker's shady business dealings and kissing up before joining the Trump administration as former attorney general Jeff Sessions's chief of staff. A more quintessential Trump administration resume would be hard to find.

Unconstitutionality is the central question before Whitaker's other blemishes come into focus. Whitaker reportedly will not recuse himself from overseeing the Mueller investigation even "given that he has written opinion pieces about the investigation and is a friend and political ally of a grand jury witness," reports the Washington Post. Eighteen Attorneys General have sent a letter to Whitaker at the U.S. Department of Justice asking him to recuse himself from overseeing the Mueller investigation, as Sessions did under federal rules.

Lawfare blog cites chapter and verse:

Whitaker may be obligated to recuse himself from the Mueller investigation. The relevant Justice Department guideline is Section 45.2 of Title 28 of the Code of Federal Regulations, which states that “no employee shall participate in a criminal investigation or prosecution if he has a personal or political relationship with” either “any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution” or “any person or organization which he knows has a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution.”
What captures the imagination is the ham-fistedness of Trump's attempt to run the Department of Justice from the White House puts in question every other prosecution underway. "Every litigant in this country who is facing the Justice Department can make these arguments," Katyal said. "Hey, you're trying to put me in jail, Justice Department? You don't have the authority. You have a fake attorney general."

Trump, who sometimes tweets about his exploits in the third person, has always considered He Trump a law unto himself. One still marvels he was able somehow to raise his right hand and place the other on a Bible with his fingers crossed behind his back.