Donald Trump’s firing of Attorney General Jeff Sessions has all the markings of Richard Nixon’s “Saturday Night Massacre” during Watergate, compounded by Trump’s bumbling effort to put a political crony in the job, sparking a national outcry.
In the latest development, New York Attorney General Barbara D. Underwood, as part of a coalition of 18 Attorneys General nationwide, has demanded that Acting Attorney General Matthew Whitaker recuse himself from Special Counsel Robert Mueller’s investigation.
“It’s vital that the Special Counsel’s investigation move forward free from any appearance of interference or bias,” said Underwood on behalf of the group.
“As such, Acting Attorney General Whitaker has a clear responsibility to recuse himself from any role in the investigation – in order to ensure that the public can trust the integrity of the investigation and to protect DOJ’s fundamental independence,” she added.
Legal experts, including George T. Conway III, the husband of Trump spokeswoman Kellyanne Conway, have called the appointment of the Trump political crony “unconstitutional.”
“The president is evading the requirement to seek the Senate’s advice and consent for the nation’s chief law enforcement officer and the person who will oversee the Mueller investigation,” Conway wrote in a New York Times op-ed article with lawyer Neal K. Katyal.
Whitaker was appointed acting Attorney General, skipping over Deputy Attorney General Rod Rosenstein, even though the Constitution requires that only an individual confirmed by the Senate can hold the office.
Whitaker been a strong advocate of the president and a frequent critic of Mueller’s investigation of Russian interference in the 2016 presidential election.
The state Attorneys General said in a letter mailed directly to Whitaker that his recusal is “necessary to maintain public trust in the integrity of the investigation and to protect the essential and longstanding independence of the Department you have been chosen to lead, on an acting basis.”
The Attorneys General cited federal ethics regulations that require federal government employees to recuse themselves from participation in matters involving any “question in the mind of a reasonable person about his impartiality.”
Whitaker, in various public forums and the media, has suggested cutting the Mueller’s budget or limiting his authority to follow lines of inquiry.
Rosenstein should continue to supervise the Special Counsel’s investigation, which must proceed free from interference or supervision that would “appear to many Americans to be biased,” the letter stated.
Trump, however, was furious at Sessions when he recused himself from the investigation because of his role in Trump’s 2016 presidential campaign and because of his own interaction with the Russian ambassador during the election.
Sessions was the first GOP senator to endorse Trump’s 2016 White House bid, and Trump said he appointed him out of loyalty.
The fact that Trump moved to fire Sessions after the midterm elections has been widely interpreted as an effort to curb or end the Mueller probe. There have been unconfirmed reports that Trump son, Donald Trump Jr., could be facing indictment for perjury.
But any action Whitaker takes would be illegal and invalid, Conway and Katyal assert.
Ironcially, they made the same argument advanced by conservative law professor Steven Calabresi in The Wall Street Journal in May. He claimed Mueller’s appointment was unconstitutional because he had not been confirmed by the Senate.
But Conway and Katyal noted that Mueller’s confirmation is unnecessary because he does not report directly to the president. The Constitution’s Appointments Clause requirement only applies to principal government officers who report directly to the president.
“It means that Mr. Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid,” they stated.
The appointment, they continued, “defies one of the explicit checks and balances set out in the Constitution, a provision designed to protect us all against the centralization of government power.”
“We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design. Senate confirmation exists for a simple, and good, reason,” the add.
“Constitutionally, Matthew Whitaker is a nobody. His job as Mr. Sessions’s chief of staff did not require Senate confirmation. (Yes, he was confirmed as a federal prosecutor in Iowa, in 2004, but Mr. Trump can’t cut and paste that old, lapsed confirmation to today.) For the president to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document.”
So far, Whitaker is still in the job.
Trump claimed today (Nov. 9) that he had not spoken Whitaker about the special counsel investigation and tried to claim he did not know him.
“I don’t know Matt Whitaker,” Mr. Trump told reporters on his way out of town on a trip to Paris. “Matt Whitaker is a very highly respected man.”
But Whitaker, who now oversees the investigation, has visited the Oval Office several times and is said to have an easy chemistry with the president, people familiar with the relationship, told The New York Times.
According to Seth Abramson, a lawyer, professor and vocal Trump critic, Whitaker played a key role end-running Sessions’ recusal as his chief of staff to keep Trump officials informed about the Mueller investigation.
“Any secret Whitaker-Trump discussion of Mueller probe was inappropriate—Trump knew it, Sessions knew it, Kelly knew it, and Whitaker knew it. But Whitaker had been selected ‘because’ his history showed he was willing to break rules—and he was perpetually thankful for his job,” Abramson wrote on Twitter this morning (Nov. 9).
Trump is reportedly scrambling to name Sessons’ permanent replacement, but his focus has been purely on political cronies who he believes are loyal to him.
Although the president appoints the Attorney General, the position is chief law enforcement officer for the United States, not the president. Constitutionally, it’s supposed to be immune to White House influence or pressure.
Among some of the Trump loyalists who have been floated for the job are Pam Bondi, the outgoing Florida attorney general and long-time Trump ally.
From the Senate, Ted Cruz, Lindsey Graham and Judiciary Chairman Charles E. Grassley have been mentioned, but all seem unlikely to take the job. Graham has already declined. Cruz just won a hard-fought re-election campaign.
Kris Kobach, who just lost a re-election bid for Kansas secretary of state, is a staunch Trump supporter on immigration and led Trump’s abortive voter fraud commission.
Former New Jersey Gov. Chris Christie and former New York City Mayor Rudy Giuliani have also been mentioned. While both severed as U.S. Attorneys, they are considered highly polarizing figures and strong GOP partisans. Giuliani, however, is mired in another nasty divorce.
Sessions’ firing smacks of what became known as the “Saturday Night Massacre” during the height of Nixon’s Watergate scandal.
Nixon ordered Attorney General Elliot Richardson to fire independent special prosecutor Archibald Cox; Richardson refused and resigned effective immediately.
Nixon then ordered Deputy Attorney General William Ruckelshaus to fire Cox; Ruckelshaus also refused and resigned. Nixon then ordered the third-most-senior official Solicitor General Robert Bork, to fire Cox.
Bork considered resigning, but followed Nixon’s orders. The move backfired and ultimately led to Nixon’s resignation months later. The move also cost Bork an appointment to the U.S. Supreme Court.
President Reagan nominated Bork, then a sitting judge, to serve as an Associate Justice in 1987. The Senate rejected his nomination, 58-42, along partisan lines.
Editor’s Note: The Attorneys General letter was signed by AGs from Massachusetts, New York, California, Connecticut, Delaware, Hawaii, Illinois, Maryland, Minnesota, New Jersey, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia.