Author Topic: Trump's new line of attack on Russia inquiry: 'Mueller was not Senate confirmed'  (Read 745 times)

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Trump's new line of attack on Russia inquiry: 'Mueller was not Senate confirmed'
by Kelly Cohen
 | November 09, 2018 10:37 AM


President Trump intensified his attacks on special counsel Robert Mueller by suggesting he lacks legitimacy because he was not confirmed by the U.S. Senate.

When Trump was asked about the constitutionality of appointing Matthew Whitaker acting attorney general without Senate confirmation, Trump, speaking to reporters on the South Lawn at the White House, pointed out that Mueller had not been confirmed by the Senate as special counsel.

“Mueller is doing a report, he hasn’t gone through the Senate process, so you’re saying Whitaker hasn’t? But Whitaker has. He was a really distinguished U.S. attorney in Iowa, and he was approved by everybody,” Trump said.

Mueller was confirmed as FBI director by the Senate with a 98-0 margin in 2001 and the law later changed to extend his 10-year term. In 2011, the Senate voted unanimously to extend Mueller’s tenure for an additional two years. Whitaker was confirmed by the Senate in 2004 as a federal prosecutor in Iowa.

Trump added: “Mueller - a big complaint people have - Mueller was not Senate confirmed. So he’s doing a report. He wasn’t Senate confirmed. Whitaker was Senate confirmed.”

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https://www.washingtonexaminer.com/news/trumps-new-line-of-attack-on-russia-inquiry-mueller-was-not-senate-confirmed
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Offline Free Vulcan

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The gist I'm getting is since the Dems want Matt out because he's not Senate confirmed, then why not have Mueller gone for the same reason?
The Republic is lost.

Offline edpc

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Whitaker’s views of the Mueller probe have been documented.  However, as acting AG, he also has authority over US Attorney offices.  So, it’ll be interesting to see if he does anything with the cases currently being investigated by SDNY.


Donald Trump Played Central Role In Hush Payoffs To Stormy Daniels And Karen McDougal

https://www.wsj.com/articles/donald-trump-played-central-role-in-hush-payoffs-to-stormy-daniels-and-karen-mcdougal-1541786601
I disagree.  Circle gets the square.

Offline the_doc

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The gist I'm getting is since the Dems want Matt out because he's not Senate confirmed, then why not have Mueller gone for the same reason?

It has to do with the Constitution's Appointments Clause (in Article II), which specifies who requires Senate confirmation for federal positions.  The controversy over Mueller hinges on the specification that "principal" officers require Senate confirmation. The Dems would argue that the Special Counsel is not a principal officer, but a low-level officer.  (However, Mueller's self-exercised authority is so monumental that he certainly cannot be considered a low-level officer.  So, I agree with Trump.  [Levin has said a lot about this, too.])

Andy McCarthy has supposedly written something about the different situation of an Acting AG certainly not requiring Senate confirmation. 
« Last Edit: November 09, 2018, 08:18:17 pm by the_doc »

Offline edpc

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It has to do with the Constitution's Appointments Clause (in Article II), which specifies who requires Senate confirmation for federal positions.  The controversy over Mueller hinges on the specification that "principal" officers require Senate confirmation. The Dems would argue that the Special Counsel is not a principal officer, but a low-level officer.  (However, the Special Counsel's self-exercised authority is so monumental that he certainly cannot be considered a low-level officer.  So, I agree with Trump.  [Levin has said a lot about this, too.])

Andy McCarthy has supposedly written something about the different situation of an Acting AG certainly not requiring Senate confirmation.


Dems are not the only one to argue the subordinate role of the special counsel.  One of the most strident people  in a position to check this power, Judge T. S. Ellis, upheld the authority of Rosenstein to appoint Mueller and investigate Manafort, citing the Appointments Clause on page 24 of his ruling this past summer.


To begin with, the parties do not dispute that the Special Counsel’s appointment was consistent with the Appointments Clause of the Constitution, which empowers Congress to vest appointment of “inferior officers,” in the “president alone” or in “heads of departments.” U.S. Const. art. II, § 2, cl. 2. In Morrison v. Olson, the Supreme Court concluded that the independent counsel there was an “inferior officer,” not subject to appointment by the President and advice and consent of the Senate, because (i) the independent counsel was removable by the Attorney General and (ii) the independent counsel was “empowered . . . to perform only certain, limited duties.” 487 U.S. at 663, 671. These same factors apply here—(i) the Special Counsel is removable by the Acting Attorney General, see 28 C.F.R. § 600.7(d), and (ii) the Special Counsel’s authority is limited to that which the Acting Attorney General has authorized generally in the May 17 Appointment Order, and more specifically in the August 2 Scope Memorandum. In sum, the parties do not dispute, and Morrison makes clear, that the Special Counsel is an “inferior officer” and as such, can be appointed by a department head, in this case the Acting Attorney General, pursuant to Article II of the Constitution.

https://www.politico.com/f/?id=00000164-3dc7-dbdc-a96d-3dff8c890001
« Last Edit: November 09, 2018, 07:05:15 pm by edpc »
I disagree.  Circle gets the square.

Offline Slide Rule

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The gist I'm getting is since the Dems want Matt out because he's not Senate confirmed, then why not have Mueller gone for the same reason?


I am sure McConnell can set up hearings in January to confirm Mueller.

That would be interesting.

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Offline Free Vulcan

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It has to do with the Constitution's Appointments Clause (in Article II), which specifies who requires Senate confirmation for federal positions.  The controversy over Mueller hinges on the specification that "principal" officers require Senate confirmation. The Dems would argue that the Special Counsel is not a principal officer, but a low-level officer.  (However, the Special Counsel's self-exercised authority is so monumental that he certainly cannot be considered a low-level officer.  So, I agree with Trump.  [Levin has said a lot about this, too.])

Andy McCarthy has supposedly written something about the different situation of an Acting AG certainly not requiring Senate confirmation.

Right, but court cases that culimated in the Vacancies Act of 1998 that provided for temporary appointments for up to 210 days for the smooth transition of govt. Even the NY Times of all places agrees with this.

https://www.nytimes.com/2018/11/09/opinion/trump-attorney-general-constitutional.html
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Offline the_doc

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Dems are not the only one to argue the subordinate role of the special counsel.  One of the most strident people  in a position to check this power, Judge T. S. Ellis, upheld the authority of Rosenstein to appoint Mueller and investigate Manafort, citing the Appointments Clause on page 24 of his ruling this past summer.


https://www.politico.com/f/?id=00000164-3dc7-dbdc-a96d-3dff8c890001

I am aware of Ellis's ruling, but there is another problem--and it's a big one:  under the Special Counsel statute, a Special Counsel is supposed to be closely supervised by the DOJ, thereby making a Special Counsel a low-level officer rather than a principal officer.  Fine.  But Ellis seems to have been addressing that rather narrow point of the law without snarling himself in the different but related and important legal matter of Mueller's statutorily improper oversight by DOJ's Rosenstein.  Mueller has been unsupervised, so to speak--thus making him a de facto principal officer. 

Two examples:  First, a Special Counsel is supposedly required to follow DOJ policy.  (I believe this is in the Special Counsel statute, and it definitely goes to the matter of DOJ oversight.)  By threatening POTUS with a criminal prosecution bypassing an impeachment, Mueller was flagrantly defying DOJ policy.  In the next place, and even more ominous, perhaps, the DOJ is supposed to draft a narrow scope for any Special Counsel--a narrow scope being surely necessary to prevent any abuse of the Special Counsel's potentially ominous power. 

Mueller's supervisor (Rosenstein) gave him an essentially open-ended scope of work despite a mention of Russian Collusion.  The scope was designed to facilitate a fishing expedition automatically authorizing what has proven to be a horrific abuse of power--an abuse smashing through attorney-client privilege and chasing down miscellaneous rabbit trails, including Manafort's banking records more than a decade old with no genuinely probable cause of any connection to Russian Collusion.  Mueller was looking for any dirt whatsoever on Trump--because that was the real scope of work given to him by his DOJ "supervisor."  But looking for "any dirt whatsoever" is ILLEGAL.

Even Ellis himself was appalled at Mueller's tactics of trying to make Trump's associates squeal under the threat of horrific sentences (and, in squealing, likely even to lie about POTUS) in an effort to snag Trump for any crime whatsoever--including any of which Trump was innocent but frameable.  This jailhouse snitching stuff is unfortunately legal, as Ellis had to admit, but the fact that Ellis allowed Mueller to pull these unethical shenanigans in an extraordinarily important investigation of the President of the United States is alarming, indeed.  The entire investigation is obviously a political witch hunt in the first place--a witch hunt that was even launched by framing Trump and his campaign to get the bogus surveillance warrants of campaign personnel.

Putting all of this together, the Mueller investigation is a horrific violation of the Constitution and the Special Counsel statute.  Mueller is not merely the point man in a witch hunt, but a loose cannon exercising a principal officer's power in violation of the Constitution and the Statute.
« Last Edit: November 09, 2018, 08:03:30 pm by the_doc »

Offline the_doc

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@edpc
@Free Vulcan

I am aware of Ellis's ruling, but there is another problem--and it's a big one:  under the Special Counsel statute, a Special Counsel is supposed to be closely supervised by the DOJ, thereby making a Special Counsel a low-level officer rather than a principal officer.  Fine.  But Ellis seems to have been addressing that rather narrow point of the law without snarling himself in the different but related and important legal matter of Mueller's statutorily improper oversight by DOJ's Rosenstein.  Mueller has been unsupervised, so to speak--thus making him a de facto principal officer. 

Two examples:  First, a Special Counsel is supposedly required to follow DOJ policy.  (I believe this is in the Special Counsel statute, and it definitely goes to the matter of DOJ oversight.)  By threatening POTUS with a criminal prosecution bypassing an impeachment, Mueller was flagrantly defying DOJ policy.  In the next place, and even more ominous, perhaps, the DOJ is supposed to draft a narrow scope for any Special Counsel--a narrow scope being surely necessary to prevent any abuse of the Special Counsel's potentially ominous power. 

Mueller's supervisor (Rosenstein) gave him an essentially open-ended scope of work despite a mention of Russian Collusion.  The scope was designed to facilitate a fishing expedition automatically authorizing what has proven to be a horrific abuse of power--an abuse smashing through attorney-client privilege and chasing down miscellaneous rabbit trails, including Manafort's banking records more than a decade old with no genuinely probable cause of any connection to Russian Collusion.  Mueller was looking for any dirt whatsoever on Trump--because that was the real scope of work given to him by his DOJ "supervisor."  But looking for "any dirt whatsoever" is ILLEGAL.

Even Ellis himself was appalled at Mueller's tactics of trying to make Trump's associates squeal under the threat of horrific sentences (and, in squealing, likely even to lie about POTUS) in an effort to snag Trump for any crime whatsoever--including any of which Trump was innocent but frameable.  This jailhouse snitching stuff is unfortunately legal, as Ellis had to admit, but the fact that Ellis allowed Mueller to pull these unethical shenanigans in an extraordinarily important investigation of the President of the United States is alarming, indeed.  The entire investigation is obviously a political witch hunt in the first place--a witch hunt that was even launched by framing Trump and his campaign to get the bogus surveillance warrants of campaign personnel.

Putting all of this together, the Mueller investigation is a horrific violation of the Constitution and the Special Counsel statute.  Mueller is not merely the point man in a witch hunt, but a loose cannon exercising a principal officer's power in violation of the Constitution and the Statute.

I meant to ping both of you.  I also want to point out that I modified my post #3 by replacing "Special Counsel" with "Mueller." 

My point here is that I do not loathe the idea that a Special Counsel does not need Senate confirmation, but I maintain that Mueller is not a proper Special Counsel, is not behaving as an inferior officer.  So, I wind up in a version of Trump's position. 

Offline edpc

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I am aware of Ellis' ruling......


If you really were, nothing that followed would have been written.  He addressed all the points you brought up in the 31 pages.  While he doesn't necessarily like the potential for unfettered power, he saw nothing to dismiss the indictment or find specific misconduct or abuse.  He grudgingly agreed, after seeing unredacted materials, decade old conduct was germane to the case, despite the length of time and window of occurrence.
« Last Edit: November 09, 2018, 08:29:46 pm by edpc »
I disagree.  Circle gets the square.

Offline DB

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Whitaker’s views of the Mueller probe have been documented.  However, as acting AG, he also has authority over US Attorney offices.  So, it’ll be interesting to see if he does anything with the cases currently being investigated by SDNY.


Donald Trump Played Central Role In Hush Payoffs To Stormy Daniels And Karen McDougal

https://www.wsj.com/articles/donald-trump-played-central-role-in-hush-payoffs-to-stormy-daniels-and-karen-mcdougal-1541786601

We knew Trump was lying about this all along. And somehow they thought people were stupid enough to believe his fixer lawyer just plopped down $130k of his own money to buy a porn star's silence of having sex with Trump while his third wife was pregnant...

But none of that has anything to do with being Trump's fault... It is all the porn star's, playmate's and his crooked lawyers fault...

« Last Edit: November 10, 2018, 01:44:20 am by DB »

Offline the_doc

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If you really were, nothing that followed would have been written.  He addressed all the points you brought up in the 31 pages.  While he doesn't necessarily like the potential for unfettered power, he saw nothing to dismiss the indictment or find specific misconduct or abuse.  He grudgingly agreed, after seeing unredacted materials, decade old conduct was germane to the case, despite the length of time and window of occurrence.

You are essentially stipulating that my summary of Ellis's position concerning the Special Counsel Statute was basically correct, so thanks.  I had not read Ellis's written ruling in June, but I have followed a fair amount of commentary;  the only thing I missed in all of this was the fact that Ellis had eventually concluded from redacted/unredacted documents that Manafort's nefarious bank dealings years ago were chargeable in Ellis's court. i.e., the evidence supporting criminal charges against Manafort did incidentally but properly stem from the Russian Collusion investigation. 

Still, I think Ellis was afraid to throw the Manafort case out of his own court--because he would have to declare the overall Mueller investigation was a rogue investigation in violation of the Special Counsel Statue.  He couldn't go that far if Manfort's attorneys did not do a very good job putting Mueller's entire investigation on trial and in the court record for the Manafort trial. 

I predict that Manafort's conviction will be reversed when the FISA warrant applications are fully redacted.  The whole investigation will be revealed as a poisonous investigative tree stemming from a poisonous conspiracy at every step and, as a result, specifically producing an illegal, undersupervised Special Counsel. 
« Last Edit: November 09, 2018, 10:48:46 pm by the_doc »

Offline edpc

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“Mueller is doing a report, he hasn’t gone through the Senate process, so you’re saying Whitaker hasn’t? But Whitaker has. He was a really distinguished U.S. attorney in Iowa, and he was approved by everybody,” Trump said.


Approved by everybody?  Would that include Trump himself?  After all, Whitaker is a really great guy he doesn’t know.


"I don't know Matt Whitaker," Trump said of the new acting attorney general, saying he hired him because he had worked for since-dismissed Attorney General Jeff Sessions. "He was always extremely highly thought of, and he still is. But I didn't know Matt Whitaker. He worked for Attorney General Sessions."

*****************

And in an October 11 interview on Fox News, Trump made clear he did, in fact, know Whitaker well.

"I can tell you Matt Whitaker's a great guy. I know Matt Whitaker," he said.


https://www-m.cnn.com/2018/11/09/politics/matthew-whitaker-donald-trump-attorney-general/index.html?r=https%3A%2F%2Fwww.cnn.com%2F


Sounds like Trump is Papadopoulous-ing him, already.
« Last Edit: November 09, 2018, 10:52:46 pm by edpc »
I disagree.  Circle gets the square.

Offline Right_in_Virginia

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The gist I'm getting is since the Dems want Matt out because he's not Senate confirmed, then why not have Mueller gone for the same reason?

This is exactly right @Free Vulcan   The President mentioned this in an answer to a question about the new acting AG and his not being confirmed by the Senate.

This was not a bleeping "new line of attack".