Only Rod Rosenstein can be Acting-AG. Whitaker is the Anti-AG.

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Tuesday November 13, 2018 · 11:37 PM PST

2018/11/13 · 23:37

Anti-Attorney General Matthew Whitaker has made troubling comments about the Mueller investigation.

This is an update to an earlier diary, where I discussed why I believe the Whitaker appointment to be illegal. One of the legal arguments mentioned was that it appears to be contrary to 28 USC §508(a), which I believe to be controlling, rather than the Federal Vacancies Reform Act, when it comes to the Attorney General position.

But I thought there was some possible ambiguity there, due to the way that section also references 5 USC §3345. It turns out that any ambiguity is resolved by examining the legislative history and intent of the FRA, as laid out by the Senate Governmental Affairs committee in their report on the Federal Vacancies Reform Act of 1998 (pdf).

First, a reminder of what 28 USC §508(a) actually says:

In case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office, and for the purpose of section 3345 of title 5 the Deputy Attorney General is the first assistant to the Attorney General.

The first part of that seems clear as to who is allowed to act as AG in the event of a vacancy there, but I thought the reference to 5 USC §3345 created some uncertainty, since it suggested a possible intent that that law (which allows the President some other options) might somehow also still apply. But, at the time this law was passed, the FRA hadn’t yet been passed. So the section 3345 originally referenced was not the same. The Senate report linked above includes, starting on p. 23 (p26 of the pdf) a section titled IX. CHANGES IN EXISTING LAW. On the next page, you have in brackets, a copy of the section 3345 which existed previously:

§ 3345. Details; to office of head of Executive agency or

military department

When the head of an Executive agency (other than the General Accounting Office) or military department dies, resigns, or is sick or absent, his first assistant, unless otherwise directed by the President under section 3347 of this title, shall perform the duties of the office until a successor is appointed or the absence or sickness stops.

So designating the Deputy AG as the “first assistant” under this older section did almost the exact same thing as 508. It did contain an exception, in the reference to the older 3347, but that section explicity stated “This section does not apply to a vacancy in the office of Attorney General”. So the older 3345 really didn’t even give the Deputy AG a choice, it simply said he “shall perform the duties of the office” not he “may exercise all the duties of that office”.

And thus there was no intent in this law to allow the newly created 5 USC 3345(a)(3), the only section in the FRA which would appear to allow the appointment of an unconfirmed acting officer, to apply to the Attorney General, who was already governed by 28 USC §508(a). And the Senate report makes this clear, under VI. SECTION-BY-SECTION ANALYSIS, on p.13 (p.16 of the pdf) where it says:

With respect to a vacancy in the office of Attorney General, 28 U.S.C. § 508 will remain applicable. That section ensures that Senate confirmed Justice Department officials will be the only persons eligible to serve as Acting Attorney General

Boom, there it is, Senate confirmed Justice Department officials will be the only persons eligible to serve as Acting Attorney General.

And per 28 U.S.C. § 508, those confirmed Justice Department officals are Deputy Attorney General Rod Rosenstein, per 508(a), or Associate Attorney General Jesse Panuccio, per 508(b).

Keep in mind, the FRA, in 5 USC §3347(a)(1)(B) made clear that the §3345 and §3346 “are the exclusive means for temporarily authorizing an acting official….unless….a statutory provision expressly….designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity”.

Since 28 U.S.C. §508 does exactly that, the plain language here seems to suggest that it contols, and thus other options in §3345 do not apply to the Attorney General. Any argument otherwise, based on confusion over the intent of the reference to §3345, is crushed by the actual evidence of intent in the report from the Senate Committee on Governmental Affairs.

Thus, those suing to invalidate this appointment, including the State of Maryland, should have a good chance to prevail. And so, if the legal Acting Attorney General is Rosenstein, what ought we to call Whitaker? In the history of the church, any time where there were men who claimed the authority of Pope, who were not recognized as legitmate Popes by the church, they were called Antipopes. In that spirit, I submit that Whitaker is the Anti-Attorney General.

p.s. thanks to Jed Shugerman for this tweet calling this report to my attention.

Whitaker has not been legally appointed; the acting Attorney General should be Rosenstein.

acerimusdux

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Thursday November 08, 2018 · 2:38 PM PST

2018/11/08 · 14:38

The most important statute here seems to be 28 USC §508(a), which directly adresses the position of Attorney General:

In case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office, and for the purpose of section 3345 of title 5 the Deputy Attorney General is the first assistant to the Attorney General.

Note that it does not matter under this statue what caused the vacancy. It doesn’t matter whether Sessions was fired or resigned. But it also references the Federal Vacancy Reform Act, 5 USC §3345, which applies generally to officers of Executive agencies. But per §3347 of that law:

(a) Sections 3345 and 3346 are the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office of an Executive Agency (including the Executive Office of the President, and other than the Government Accountability Office) for which appointment is required to be made by the President, by and with the advice and consent of the Senate, unless—

       (1) a statutory provision expressly—

            (A) authorizes the President, a court, or 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;

So per 5 USC §3347(a)(1)(B), since 28 USC §508(a) is a statutory provision designating who may temporarily act as AG, it should still apply.

Normally, since 28 USC §508 is both more restrictive, and specifically applies to the office of Attorney General, I think it would be considered controlling here. But since it directly references 5 USC §3345, it seems to anticipate that that statute still applies, as well.

So arguably (but I think debateably), the other options available under 3345 for temporary appointments may also be available to the president. The only one here which could allow Whitaker, is 5 USC 3345(a)(3), which allows temporary appointment of any agency employee, who has served for at least 90 days, at pay grade GS-15 or higher.

The first objection to that might be that 3345(a) only applies when an officer “dies, resigns, or is otherwise unable to perform the functions and duties of the office”. If congress had meant this to apply in the event of any vacancy, they could have used much simpler language (like, “in the event of any vacany….”). A seperate clause, 3345(c)(2), specifies that “the expiration of a term of office” is considered an “inability to perform” under this section. But nothing clearly says that this can be applied in the case of a firing. This question appears to be unresovled as of yet by the courts. The issue was raised recently in Hamel vs. Veterans Affairs, but that case was dismissed without any rulings being made after the appointee being challenged was confirmed by the Senate.

Second, it can be argued that even if congress intended to allow such an appointment, it may not itself legislatively undermine it’s own advice and consent power in this way. This position was taken by Justice Clarence Thomas in a recent opinion (pdf), in which he argued:

That the Senate voluntarily relinquished its advice-and-consent power in the FVRA does not make this end-run around the Appointments Clause constitutional. The Clause, like all of the Constitution’s structural provisions, “is designed first and foremost not to look after the interests of the respective branches, but to protect individual liberty” NLRB v.Noel Canning, 573 U. S (2014)….The Judicial Branch must be most vigilant in guarding the separation between the political powers precisely when those powers collude to avoid the structural constraints of our Constitution

It should be noted though, that this was the opinion in this case of only Thomas. The majority in this case ruled that the appointment in question violated the FVRA, and thus they had no need to adress any constitutional issue, so we don’t know their opinions on this. But two dissenting justices (Sotomayor and Ginsberg), held that the appointment was legal, and thus they must have seen no constitutional issue with an appointee under 3345(a)(3), who had not previously been confirmed by the Senate, who served for almost 3 years as NLRB general counsel.

Ultimately, as none of these issues has yet been clearly resoved by the courts, the Whitaker appointment will likely need to be litigated. I favor holding 28 USC §508 to be controlling in the case of the Attorney General, and also believe a firing is not a resignation, or otherwise an “inability to perform”. That would mean the Deputy Attorney General Rod Rosenstein should be the legal acting Attorney General, and the next in line would be Associate Attorney General Jesse Panuccio. Some more in depth treatement of these legal issues can be found here.

A final point though, regardless of how these questions are resolved, if the President’s purpose in this forced resignation and appointment is to interfere with and obstruct the Mueller investigation, then that in itself makes the appointment illegal, as obstruction of justice. And there are plenty of details as well about Whitaker, which I won’t go into now, which suggest that this is the case, and that he would be fundamentally unqualified for the position, anyway.

Ronald Reagan on Planned Parenthood

acerimusdux

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Tuesday September 22, 2015 · 3:02 PM PDT

2015/09/22 · 15:02

Back in 1983, there was also a debate about Planned Parenthood. The issue at the time was parental notification for contraceptive services. Here's how Ronald Reagan addressed the issue, speaking to a convention of Evangelicals in Orlando (pdf):

Let me state the case as briefly and simply as I can. An organization of citizens, sincerely motivated and deeply concerned about the increase in illegitimate births and abortions involving girls well below the age of consent, sometime ago established a nationwide network of clinics to offer help to these girls and, hopefully, alleviate this situation. Now, again, let me say, I do not fault their intent. However, in their well-intentioned effort, these clinics have decided to provide advice and birth control drugs and devices to underage girls without the knowledge of their parents.

While I disagree with the position Reagan ultimately took in this speech--and especially his attacks on "modern-day secularism", and his support for a religious basis for US laws--what I wanted to highlight is the way he describes, in the above paragraph, those with whom he disagrees. Note that he doesn't see the need to malign their motives, or to grossly distort the basic facts of what it is they are doing.

Instead, he sees Planned Parenthood as a "sincerely motivated and deeply concerned" "organization of citizens" who are making a "well-intentioned effort" "to offer help". Compare that to the language we see from some of the current leading Republican candidates.

acerimusdux

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Sunday September 20, 2015 · 12:37 PM PDT

2015/09/20 · 12:37

Watching the Republican Presidential debate this week, at the Ronald Reagan library, I couldn't help being reminded of the famous Misery Index, and that moment in his debate with President Carter, when Reagan argued:

When he was a candidate in 1976, President Carter invented a thing he called the Misery Index. He added the rate of unemployment and the rate of inflation. And it came at that time to 12.5, under President Ford. And he said that no man with that size Misery Index had a right to seek re-election to the presidency. Today, by his own decision [sic], the Misery Index is in excess of 20%

https://youtu.be/...

The index itself was actually invented in the mid-1970s by economist Arthur Okun, a former chair of the CEA during the Johnson administration, who is most known for "Okun's law", the rule describing the relationship between unemployment and GDP (wherein typically, a 1% fall in unemployment equates to a about a 2% increase in GDP). Okun also can be credited for creating the now common technical definition of a recession as 2 consecutive quarters of negative growth.

Anyway, Okun's Misery Index, calculated by adding the unemployment rate (U3) to the year over year change in CPI-U, now stands at 5.3% (5.1 unemplyment + 0.2 inflation). It hasn't been this low since April 1956.

acerimusdux

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Monday January 12, 2015 · 2:58 PM PST

2015/01/12 · 14:58

Robert Samuelson, columnist for the Washington Post (and no relation to Nobel Prize winning economist Paul Samuelson) takes issue with Paul Krugman in an Op-Ed yesterday in which he argues that Ronald Reagan should be given credit for the decline of inflation in the 1980s because he supported the Fed Chairman, Paul Volker, in the effort.

I'll grant that Reagan could have had some influence, though as Krugman says in his response:

But that’s not the key point. The key point is that the great disinflation of the 1980s was essentially a monetary affair, and fully consistent with Keynesian economics. And as far as I can tell, Samuelson doesn’t disagree with that assessment.

My problem is that Krugman has let far more significant historical distortions in Samuelson's piece slide, apart from this minor quibble over how much he may have influenced the independent Chairman of the Federal Reserve. I'll examine those, and why they are important, below. Read More

No Means No

acerimusdux

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Friday January 02, 2015 · 1:28 PM PST

2015/01/02 · 13:28

https://www.youtube.com/...

PASADENA -- The Oregon players who taunted Florida State and quarterback Jameis Winston after the Ducks' Rose Bowl win Thursday will be disciplined, Oregon head coach Mark Helfrich said in a statement.
Video shot by numerous media organizations, including the Oregonian, showed several Oregon players chanting "No means no" to the tune of the "Warchant" used by Florida State fans and mimicking the iconic Seminole Tomahawk chop. The gesture was an apparent mocking of Winston and the sexual assault accusations that have followed the former Heisman Trophy winner over the last two seasons.

"We are aware of the inappropriate behavior in the postgame," Helfrich said. "That is not what our program stands for, and the student-athletes will be disciplined internally."

link

acerimusdux

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Thursday December 19, 2013 · 5:22 PM PST

2013/12/19 · 17:22

Via Erin Fuchs at Business Insider:

A federal investigation has revealed that a lawyer who headed the Office of Special Counsel (OSP) in the George W. Bush administration allegedly disliked gay workers so much that he tried to "ship" them to a new office in Detroit.
Scott Bloch — whose tenure was filled with controversy — went to great lengths to make life difficult for gay workers in the OSP, that agency's inspector general found. Bloch even told government contractor Richard Trefry that he planned to create a Detroit office just for the gays, according to the report, which was posted by the Blog of the Legal Times.

acerimusdux

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Wednesday October 17, 2012 · 1:51 PM PDT

2012/10/17 · 13:51

The funniest thing about Romney's debate blunder on Libya isn't that he was wrong about what Obama said, it's the hypocrisy of the charge to begin with, considering that there doesn't seem to be any evidence that Romney himself ever used the words "terror" or "terrorist" in relation to this attack until two weeks later, on September 25.

A summary of what was said and when below the fold, with special thanks to Zack Beauchamp at Think Progress for collecting most of this here.

acerimusdux

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Wednesday September 26, 2012 · 2:54 PM PDT

2012/09/26 · 14:54

Mitt Romney in his 60 Minutes interview defended low capital gains tax rates.

ROMNEY: It is a low rate. And one of the reasons why the capital gains tax rate is lower is because capital has already been taxed once at the corporate level, as high as thirty-five percent.
PELLEY: So you think it is fair?

ROMNEY: Yeah, I -- I think it's -- it's the right way to encourage economic growth, to get people to invest, to start businesses, to put people to work.

(per transcript)

But where did he get the idea that low capital gains rates encourage investment or economic growth? If you think about this, this isn't a tax you pay when you invest. You can invest, and stay invested for a very long time, without ever paying this tax. You only pay the tax when you sell. But selling isn't investment, it's disinvestment. Do we really need tax policy to encourage disinvestment?

Aside from which, we've been reducing capital gains rates now for years. Is there any evidence that this has ever increased investment?

I would say not.

More below the orange fractal set.

acerimusdux

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Tuesday August 28, 2012 · 8:53 AM PDT

2012/08/28 · 08:53

“He actually is the tea party movement,” Kaufman said. “He truly is the outside candidate not the inside candidate.”
http://www.politico.com/...

Who is Kaufman?

While these former gubernatorial aides have not played a major role in a general election presidential campaign, Romney has several other key advisers who have such experience, including longtime friend Ron Kaufman and political strategists Stuart Stevens and Russ Schriefer, all of whom worked with Romney on his failed 2008 White House bid.
http://www.boston.com/...

And he says Romney "is the Tea Party". The same Tea Party movement:

Which two thirds of Americans don't support, and which a majority have an unfavorable opinion of (link).

And which In their Contract From America, has called for:

* Stopping attempts to control carbon emisions through the free market cap and trade system
* A single tax rate, so millionaires like Romney pay no greater share than anyone else
* Repealing the historic health care reform which was just passed in 2010

That Tea Party. That's who Mitt Romney really is. According to one of his top advisors and closest friends.

Coal Kills

acerimusdux

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Thursday May 20, 2010 · 1:21 AM PDT

2010/05/20 · 01:21

This just the latest, reported in the last hour:

(Reuters) - Turkish rescue teams found 28 dead in a coal mine in the northern Black Sea province of Zonguldak on Thursday, Energy Minister Taner Yildiz said, three days after an underground explosion caused the mine to collapse.

Unfortunately, there's more below....

acerimusdux

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Wednesday May 19, 2010 · 12:49 AM PDT

2010/05/19 · 00:49

Get a load of the spin on this report on yesterday's primary:

Lincoln loses leverage on US financial reform bill
By Charles Abbott

WASHINGTON, May 19 (Reuters) - Senator Blanche Lincoln, a key voice for financial reform, was forced on Tuesday into a Democratic runoff election in Arkansas and lost leverage for her plan to force big banks to spin off swaps desks.

She was expected to be the vote-leader in the primary and possibly win the nomination outright. Instead, Lieutenant Governor Bill Halter ran neck-and-neck with her in a race colored by anti-Washington sentiment.

Her swap reform proposal would cost a handful of big U.S. banks billions of dollars in revenue. It is one of the final issues in a mammoth Wall Street reform bill pending in the Senate.

http://www.reuters.com/...

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Only Rod Rosenstein can be Acting-AG. Whitaker is the Anti-AG.

Whitaker has not been legally appointed; the acting Attorney General should be Rosenstein.

Ronald Reagan on Planned Parenthood

The best economy since Eisenhower

Robert Samuelson, the Reagan Myth, and the ongoing War on Wages

No Means No

IG says Scott Bloch, Bush's head of OSC, purged office of gays

It took two weeks for Romney to call Benghazi a terrorist attack

Where's the Investment?

Romney "is the Tea Party" according to top advisor

Coal Kills

Blanche's Bank Reform Dog and Pony Show