Why Trump's Acting AG is unqualified

As expected, after the midterm election, President Donald Trump wasted no time in ousting his Attorney General Jeff Sessions and installing Sessions' Chief of Staff, Matthew Whitaker as Acting AG.   But on multiple counts, Whitaker is not qualified to hold the post, even as a temporary appointee.

1.  The Constitutional Argument:  A New York Times op-ed on Friday, by constitutional scholars Neal Katyal and George T. Conway, argues that Whitaker is not qualified because, even as Acting Attorney General, he is a "principle officer" in the federal government but has not been vetted and confirmed -- as required -- by the U.S. Senate.   A principle officer is one who reports directly to the the President and has no other supervisor.

Katyal and Conway back up their claim with analysis of Supreme Court decisions, which I won't detail here;  but their reasoning seems sound to me.  Just last year, SCOTUS held that the general counsel for the National Labor Relations Board had not been legally appointed because he did not have Senate confirmation.    What applies to a mere lawyer for the NLRB should apply in spades to the Attorney General himself -- the highest law enforcement individual in our country.   Conservative Justice Clarence Thomas himself wrote this opinion.

There could some time be an emergency situation where a vacancy had to be filled by a non-confirmed officer for a very short time.  But there was no such urgency last week, since the timing of Sessions' "resignation" was nothing more than Trump's finally accepting the letter written by Sessions months ago at Trump's own request.   And there was a whole line of succession of better qualified Justice Department officials who do have Senate confirmation that could have stepped into the position:    the Deputy AG, the Solicitor General, and others.

2.   The Lack of Legal Qualification Argument:   The highest position Whitaker had occupied in the DoJ was as Chief of Staff for Sessions.   He is not known as a legal scholar, nor does he have significant experience even in law enforcement or as a prosecutor.

3.   The Conflict of Interest Argument:    It's quite clear that Trump chose Whitaker for one reason:   his past public statements -- and probable private assurances -- that Whitaker will do what Trump wants to kill or severely limit the Mueller investigation.   He has made TV appearances in which he called it a "witch hunt," spoke about how the DoJ could limit funding for it, and how the AG could restrict areas that Mueller could investigate.   Specifically, he also has said that, like Trump himself, he would consider Mueller was crossing a "red line" into forbidden territory if he investigated Trump's finances.

Further, Whitaker has said publicly and adamantly that he will not recuse himself from overseeing the Mueller investigation.  This then would also give him control over what happens to any report Mueller might write.

4.   The Lack of Independence Argument:   From all of the above -- plus reports just out that allege, despite Trump's having told reports "I don't even know Whitaker," that he has met with Trump multiple times, secretly, in the White House;  and that they have talked multiple times on the phone.   Speculation is that he has been Trump's "mole" in the Justice Department as Sessions Chief of Staff, reporting to the president what's happening in the investigation.   This is highly improper.   The Justice Department must have a certain distance and independence from the president and the White House staff.

5.  The shady and improper financial past of Whitaker:   Mr. Whitaker, rather than having followed a career path primarily as a lawyer, has dabbled in many business ventures.   He was a paid member of the Board of World Patent Marketing, which was charged by the Federal Trade Commission with fraud for misleading customers.   A federal could ordered the company to pay a settlement of $25 million and close up shop.   The company accepted the judgment without admitting guilt.

So . . . the handwriting on the wall is easy to read.    Trump's complaint about Sessions' recusal was that it left him without an AG that would "protect" him from investigations and DoJ scrutiny -- i.e., putting Trump above the law.   Now Trump has installed -- probably illegally, and at least politically untenable -- his own lackey who has most likely already assured his loyalty to the president rather than to the country.

Within three days, protest marches had been organized in multiple cities around the country.   Members of both parties in congress are speaking against this appointment.   At the very least, we will now have a Democratic majority in the House, which can open its own investigation and pick up whatever Mueller can't get finished.

Heck, they could probably even hire Muller to be the lead investigator for them.

Ralph

PS:   These arguments don't even address obvious, out-in-the-open evidence of (1) abuse of power of office and (2) obstruction of justice arguments against both Trump and Whitaker through their attempts to interfere with an ongoing investigation.