i think rosenstein is actually the acting a.g. -- hear me out

[unblock]

i think the appointment of whitaker might not be legal.

by default, the deputy a.g. becomes the acting a.g. if there's a vacancy.
there is a vacancy, which by default would make rosenstein acting a.g.

donnie can appoint someone under the federal vacancy reform act for 210 days, but it has to be someone who has been confirmed by the senate (for any job, donnie can transfer anyone who has been through the confirmation process from a different job or even different department). but whitaker hasn't been confirmed for any position.

the senate could confirm him in the next few days, but it hasn't yet.


alternatively, donnie could make a recess appointment, which is what he's claiming this is.

but the senate isn't in recess.


not sure the process here, but i think rosenstein could just start acting like he has the job he's in line for and go to court to keep whitaker from taking over his job illegally.

[janterry]

1. and if he's fired?

it's 4:40. His meeting started at 4.

[unblock]

6. well, yes, donnie could fire him. but that looks more and more like a saturday night massacre.

not that that would stop donnie....

[janterry]

12. the anxiety is just unreal

[lame54]

13. I prefer Wednesday Morning Hissyfit

[unblock]

20. ...

[meow2u3]

17. I'd call it the Midterm Murder

[klook]

2. Good analysis and very interesting. (nt)

[brooklynite]

3. I heard you out and you're completely wrong.

Rosenstein was NEVER the AG, and nothing requires Trump to pick the Deputy AG as the Acting AG. He will need to appoint someone permanent (or go to the Senate for a approval of a new nominee), but Rosenstein has not authority to "act" like the Acting AG.

[unblock]

10. it's federal law:

https://www.law.cornell.edu/uscode/text/28/508

[unblock]

27. haha!

good wisdom.

not quite law, but close!

[dawg day]

31. Until someone is legally appointed who can legally fulfill the role without confirmation...

Then it sounds like it goes by default. This is what happened in Nixon's time. He fired the AG. The Deputy automatically became Acting AG, refused to do what Nixon wanted, and was fired. The Solicitor General was next in line (BORK!), and did what Nixon wanted (fired the special prosecutor). But each of those men had been confirmed by the Senate.

Whitaker hasn't. Legally, can he be stuck OVER the actual person in line?

Not that Trump cares. He'll do what he wants. But that doesn't mean it's legal, and someone can sue-- Congress, or Rosenstein, or maybe any of us, or CREW.

Rosenstein might be fired momentarily, but there's still another person in line-- the Solicitor General, who seems to be a Trump lackey, but at least he's legitimate.

[eleny]

4. I was just wondering if Rosenstein could refuse to leave under this circumstance

I didn't consider his taking it to court. I'd like to see it happen to focus the nation's attention on Trump's refusal to follow the law or his ignorance of it.

[NurseJackie]

5. I always enjoy the civics lessons at TRMS University...

... when things start to get complicated and confusing, she has a great way of laying it all out and breaking it down so that even *I* can understand it. I'm hoping that she'll be able to do that again tonight.

I'll DVR her show (as usual) and then begin watching at 9:17. That's just enough buffer that I can zip through the commercials and end up watching the last few minutes "live" with everyone else.

[BamaRefugee]

30. I do the same thing with Lawrence O'Donnell ;-)

[NurseJackie]

32. I like him too. Only, even after zipping through TRMS (skipping commercials)...

... it's past my bedtime and I can only watch about 10 minutes before I have to retire for the evening. My hubby watches it though.

It really is nice to be able to watch both of them and to LEARN something and to have it MAKE SENSE... without all the arguing and crosstalk and interruptions and rude guests often seen on other shows.

[BamaRefugee]

34. I'm on Calfornia time, so he comes on at 7pm, and I get MSNBC on Sirius radio in the car

So I listen to Rachel til I get home

[Tommy_Carcetti]

7. "The law?"

"The law is a....human institution."

Sheriff Cooley, O Brother Where Art Thou?

[dlk]

8. Trump Just Makes Things Up as He Goes Along

He doesn’t have a clue about the rules.

[mahatmakanejeeves]

9. Thanks. Per Politico, Alexander Acosta is on the short list.

LEGAL

Sessions ousted
Acting Attorney General Matthew Whitaker will take over supervising Mueller’s Russia probe.

By DARREN SAMUELSOHN and CAITLIN OPRYSKO 11/07/2018 02:50 PM EST Updated 11/07/2018 04:09 PM EST
....

Few believe Whitaker will be the permanent replacement. The White House preference is to tap a permanent replacement who is already senate confirmed like Labor Secretary Alex Acosta, according to people familiar with the thinking. Acosta, however, is reluctant to take the job before the Mueller report is issued.
....

[Horizens]

11. The Fed Vacancy Reform Act

only applies if the president fired a cabinet member. Had Sessions refused to resign and made trump fire him the act would be in effect.

[unblock]

16. no. there's some controversy that it might *not* apply if he's fired.

it explicitly applies if he dies, resigns, or is otherwise unable to perform the duties....

some people argue that the law doesn't say fired, so it doesn't apply in that case, though i think that surely falls under "otherwise unable...".


in any event, if the federal vacancy reform act doesn't apply, then donnie has even less possible legal basis to appoint whitaker.

[Raine1967]

14. unblock, and all of our DU legal minds and lawyers, can you tell me what to make of this?

it was an executive order that was signed in March of 2017.

https://www.whitehouse.gov/presidential-actions/presidential-executive-order-providing-order-succession-within-department-justice/

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Vacancies Reform Act of 1998, 5 U.S.C. 3345 et seq., it is hereby ordered that:

Section 1. Order of Succession. Subject to the provisions of section 2 of this order, the following officers, in the order listed, shall act as and perform the functions and duties of the office of Attorney General during any period in which the Attorney General, the Deputy Attorney General, the Associate Attorney General, and any officers designated by the Attorney General pursuant to 28 U.S.C. 508 to act as Attorney General, have died, resigned, or otherwise become unable to perform the functions and duties of the office of Attorney General, until such time as at least one of the officers mentioned above is able to perform the functions and duties of that office:

(a) United States Attorney for the Eastern District of Virginia;

(b) United States Attorney for the Eastern District of North Carolina; and

(c) United States Attorney for the Northern District of Texas.

Sec. 2. Exceptions. (a) No individual who is serving in an office listed in section 1 of this order in an acting capacity, by virtue of so serving, shall act as Attorney General pursuant to this order.

(b) No individual listed in section 1 shall act as Attorney General unless that individual is otherwise eligible to so serve under the Federal Vacancies Reform Act of 1998.

(c) Notwithstanding the provisions of this order, the President retains discretion, to the extent permitted by law, to depart from this order in designating an acting Attorney General.

Sec. 3. Revocation of Executive Order. Executive Order 13775 of February 9, 2017, is revoked.

Sec. 4. General Provision. This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

I came across it when I was reading this article from 2017 about the firing of the VA secretary at the time.

Sessions letter starts with:

"Dear Mr. President,

At your request, I am submitting my resignation."

[unblock]

18. this really only applies if there's no a.g., no deputy a.g., *and* no associate a.g.

[steve2470]

15. I think Ted Lieu agrees with you

Link to tweet

[OnDoutside]

19. Could it be that Trump simply jumped the gun with this, after the Presser, to deflect ? It wouldn't

be unheard of, for him.

[unblock]

21. it wouldn't surprise me. deliberately or not.

maybe the idea is to get senate confirmation of whitaker.

maybe donnie fires rosenstein and tries to avoid the "saturday night massacre" parallels by claiming he didn't know rosenstein was automatically a.g.


not that that's much of an excuse, it's still at least as much obstruction as the saturday night massacre....

[OnDoutside]

22. Matt Miller just said that Mueller should wait until he finds out whether the permanent DOJ

officials can get Whitaker to recuse.

Surely Whitaker (if he refuses to recuse) could just take back the control of the Mueller investigation, since Rosenstein reports to him now ?

[unblock]

23. if whitaker's appointment is legal, then rosenstein now has nothing to do with the mueller thing

mueller reports to the a.g.

rosenstein was only involved as deputy a.g. because sessions had recused himself.

if there's a new acting a.g. who hasn't recused himself, then mueller reports to the new acting a.g.


the question remains if whitaker is actually now acting a.g. in advance of any senate confirmation.

[OnDoutside]

24. Agreed.

[grantcart]

25. You appear to be on solid ground. Conway's husband agrees.

https://www.democraticunderground.com/100211395562

[Demwolv]

28. There would be something so perfect...

about Trump's presidency ending because he couldn't fire someone (or the right person) correctly.

[unblock]

29. the funny thing about the whole "you're fired" thing is that he can't even do that.

he seems to get kelly to fire people for him, then when the victims later talk to donnie, he denies even knowing about it....

[dewsgirl]

33. The one thing I know for sure, we have the brains on our side.

I'd bet on Mueller and his team having planned for and being steps ahead of this scenerio.

[bluestarone]

35. Just want to TY for this thread

TY You made it all some what clearer!! Hoping your right! Nice having you here!

[unblock]

36. my pleasure!

thanks for the kind words!