In this diary, I will be presenting some basic facts about Acting AG Matt Whitacker and the Mueller Investigation. I’ll conclude with some informed speculation about his tenure in that postition. Please note that I am not a lawyer, so feedback from those that are would be appreciated!!!
As we are all aware, Jefferson Beauregard Sessions III was forced to resign his position as Attorney General on Wednesday, November 7th, just a few hours after the polls closed for the midterm elections. Within short order (in fact, that same day) Trump appointed Matthew Whitacker to the position of Acting Attorney General.
We quickly all became aware of Mr. Whitaker’s background:
- He was Sessions Chief of Staff from September 2017- November 2018.
- He was a US Attorney for the Southern District of Iowa during the Bush Administration.
- He ran in the Republican primary for a US Senate seat in Iowa in 2014, losing to Joni Ernst.
- He was campaign chair for Sam Clovis, when Clovis ran for Iowa State Treasurer.
- He was on the Board of Directors for World Patent Marketing, which was fined by the Federal Trade Commission for 26 million dollars for fraud.
- He was the Executive Director of FACT ( Foundation for Accountability and Civic Trust), a non profit with particular interest in the Hillary Clinton email scandal.
- And finally, he was a frequent and outspoken critic of Special Counsel Mueller, and the entire Russian Investigation, writing opinion pieces and commenting on CNN.
Many are hoping and arguing that Whitaker should recuse himself from overseeing the Special Counsel’s investigation (conflict of interest related to association with Clovis), but I think we can all agree that isn’t going to happen. I suspect having Whitaker in place was Trump’s grand plan to gum up the works in that investigation. Recusal? Just not going to happen.
But another avenue might be available to prevent Trump from tampering with the General Counsel’s Investigation. Neal Katyal and George Conway published an article in the NY Times, explaining that Whitakers appointment was unconstitutional based on the Appointments Clause in the Constitution. Basically, that his appointment is not legal because a “principal officer” must be Senate confirmed.
I have been mulling over this information for the last several days wondering...OK, if his appointment is unconstitutional, who is going to step up to the plate and argue this in court? How would something like this work, and how long would it take???
Well, Laurence Tribe has provided some insight. In an article, published Sunday evening on the Huffington Post, Tribe described basically three groups of people that have standing to challenge Whitaker’s appointment:
- A defendant charged with Federal Crimes by Whitaker’s Justice Department.
- US Senators can argue that they were robbed of “Advice and Consent” powers conferred to them by the Constitution
- Mueller and Rosenstein could challenge an order from Whitaker, based on the fact that they, along with Katyal and Conway, view his appointment as unconstitutional.
Now let’s switch gears for a moment.
We all know of Roger Stone- it appears he may be a target of the Mueller investigation, based on the fact that he might have had prior knowledge of Podesta’s emails being published and he may have had communications with Assange and Guccifer 2.0. I think it’s fair to say Stone may be in deep shit.
Mueller has been in the process of gathering information on Stone for some time now. In this regard, one individual Mueller wants to talk to is a man named Andrew Miller, who has worked for Roger Stone on and off for about a decade. While other associates of Stone have testified before the grand jury in the Mueller case, Miller has refused to. Miller is fighting Mueller’s subpoena tooth and nail, and that case is going through the system and is currently being heard in the US Court of Appeals in DC. Andrew Miller believes Mueller does not have the authority to oversee the Russia Investigation.
On Thursday, the three Judge panel in the Miller case ordered attorneys from both sides of the aisle to submit briefs about what effects the Sessions ouster/Whitaker appointment will have on the case. The briefs are due on November 19th.
Sooo…..Like I said above- I doubt Whitaker will recuse himself...but maybe, just maybe, we may know the vehicle to challenge his appointment. Mueller, through the Miller case, with briefs due in one week.
For those out there with more legal insight than I, I would love to hear your comments.