Trump wanted to order Justice Dept. to prosecute Comey and Clinton

The New York Times reports:

President Trump told the White House counsel in the spring that he wanted to order the Justice Department to prosecute two of his political adversaries: his 2016 challenger, Hillary Clinton, and the former F.B.I. director James B. Comey, according to two people familiar with the conversation.

The lawyer, Donald F. McGahn II, rebuffed the president, saying that he had no authority to order a prosecution. Mr. McGahn said that while he could request an investigation, that too could prompt accusations of abuse of power. To underscore his point, Mr. McGahn had White House lawyers write a memo for Mr. Trump warning that if he asked law enforcement to investigate his rivals, he could face a range of consequences, including possible impeachment.

The encounter was one of the most blatant examples yet of how Mr. Trump views the typically independent Justice Department as a tool to be wielded against his political enemies. It took on additional significance in recent weeks when Mr. McGahn left the White House and Mr. Trump appointed a relatively inexperienced political loyalist, Matthew G. Whitaker, as the acting attorney general. [Continue reading…]

Trump says he wouldn’t stop acting attorney general from curtailing Mueller probe

The Washington Post reports:

President Trump said he would not overrule his acting attorney general, Matthew G. Whitaker, if he decides to curtail the special counsel probe being led by Robert S. Mueller III into Russian interference in the 2016 election campaign.

“Look, it’s going to be up to him . . . I would not get involved,” Trump said in an interview on “Fox News Sunday.”

In the weeks since Trump forced Jeff Sessions to resign as attorney general and chose Whitaker to serve as his interim replacement, Whitaker has faced calls from Democrats to recuse himself from oversight of the probe given his previous criticism of the investigation. Trump said in Sunday’s interview that he “did not know [Whitaker] took views on the Mueller investigation as such” before he appointed him to his position.

Trump also essentially shut the door to sitting down with Mueller, telling host Chris Wallace that his written answers mean “probably this is the end” of his involvement in the probe into Russian interference in the 2016 campaign. [Continue reading…]

Conservative lawyers say Trump has undermined the rule of law

The New York Times reports:

The annual convention of the Federalist Society, the conservative legal group, has long been a glittering and bustling affair. In the Trump era, though, the group has become more powerful than ever, supplying intellectual energy and judicial candidates to an assertive administration eager to reshape the legal landscape.

But as the group prepares to gather on Thursday for the start of this year’s convention, more than a dozen prominent conservative lawyers have joined together to sound a note of caution. They are urging their fellow conservatives to speak up about what they say are the Trump administration’s betrayals of bedrock legal norms.

“Conservative lawyers are not doing enough to protect constitutional principles that are being undermined by the statements and actions of this president,” said John B. Bellinger III, a top State Department and White House lawyer under President George W. Bush.

The group, called Checks and Balances, was organized by George T. Conway III, a conservative lawyer and the husband of President Trump’s counselor, Kellyanne Conway. In recent opinion articles, Mr. Conway has criticized Mr. Trump’s statements on birthright citizenship and argued that his appointment of Matthew G. Whitaker to serve as acting attorney general violated the Constitution. [Continue reading…]

Matthew Whitaker: An attack dog with ambition beyond protecting Trump

The New York Times reports:

President Trump first noticed Matthew G. Whitaker on CNN in the summer of 2017 and liked what he saw — a partisan defender who insisted there was no collusion between Russia and the Trump campaign. So that July, the White House counsel, Donald F. McGahn II, interviewed Mr. Whitaker about joining the president’s team as a legal attack dog against the special counsel, Robert S. Mueller III.

At that point, the White House passed, leaving Mr. Whitaker, 49, to continue his media tour, writing on CNN’s website that Mr. Mueller’s investigation — which he had once called “crazy” — had gone too far.

Fifteen months later, the attack dog is in charge. With little ceremony on Wednesday, Mr. Trump ousted Attorney General Jeff Sessions and put Mr. Whitaker, Mr. Sessions’s chief of staff, in charge of the Justice Department — and Mr. Mueller’s Russia investigation.

People close to Mr. Trump believe that he sent Mr. Whitaker to the department in part to limit the fallout from the Mueller investigation, one presidential adviser said. [Continue reading…]

FBI is investigating Florida company where Whitaker was advisory-board member

The Wall Street Journal reports:

The Federal Bureau of Investigation is conducting a criminal investigation of a Florida company accused of scamming millions from customers during the period that Matthew Whitaker, the acting U.S. attorney general, served as a paid advisory-board member, according to an alleged victim who was contacted by the FBI and other people familiar with the matter.

The investigation is being handled by the Miami office of the FBI and by the U.S. Postal Inspection Service, according to an email sent to the alleged victim last year by an FBI victim specialist. A recording on a phone line set up by the Justice Department to help victims said Friday the case remains active.

Mr. Whitaker, appointed Wednesday by President Trump to replace Jeff Sessions as head of the Justice Department, oversees the FBI in his new job.

Justice Department guidelines would require Mr. Whitaker to avoid any involvement in the Florida case, which relates to a company called World Patent Marketing Inc., said Stephen Gillers, an ethics expert at New York University Law School. Mr. Gillers said Mr. Whitaker “is unquestionably recused from any investigation or prosecution of World Patent Marketing.” [Continue reading…]

It’s probably too late to stop Mueller

Benjamin Wittes writes:

Here are 10 reasons to think that [acting attorney general, Matthew] Whitaker may have less capacity to foil Mueller than the current moment—and his formal powers—may suggest.

First, Mueller has spread the wealth around. The normal critique of special-counsel investigations is that they hoard jurisdiction, endlessly expand, and become personal roving inquests into their political subjects’ lives. The opposite is the case with Mueller. He has not merely referred to other Justice Department components matters at the margins of his investigation, such as the Michael Cohen situation in New York. He has also let other components handle matters involving core questions of Russian interference in the U.S. elections, such as the Maria Butina and Elena Khusyaynova prosecutions. The result of this strategic step is not just that Mueller is relatively invulnerable to the charge of any kind of power grab or mission creep. It is also that firing him or reining him in only does so much. If Trump imagines these investigations as a cancer on his presidency, they are a cancer that has already metastasized.

Second, the investigation has already progressed very far. It is one thing to squelch an investigation in its crib. It’s another thing to squelch an investigation that has already collected important evidence and brought key cases. The effort to do so cannot take place invisibly, as a great many prosecutors and FBI agents will be aware of what is happening. None of them has to leak anything for that awareness to find its way to Capitol Hill, because the Hill is already aware of the problem and looking for signs. Mueller is by many accounts writing a report, a step that signals a completed investigation or a completed portion of an investigation. The effort to suppress that report could be politically galvanizing and, in its own way, as damaging for the administration as the contents of that report when they eventually become public.

Third, Mueller does not have to remain silent. Mueller has used silence as a powerful strategic instrument throughout his investigation. He has done this for a variety of reasons, and the silence has served him well. Among other things, it has given his voice, if and when he ever chooses to use it, enormous moral and political power. The day that Mueller holds a press conference or stands before cameras and declares that his investigation is facing interference from the Justice Department will be a very big day, perhaps a game-changing day. If the department suppresses his report, he has the capacity to, as James Comey did after his firing, testify before Congress about what happened. Mueller has not hoarded power or jurisdiction, but he has hoarded moral authority. If Whitaker or his successor seeks to frustrate the probe, Mueller can spend down those huge reserves of credibility. [Continue reading…]

Trump’s appointment of the acting attorney general is unconstitutional

Neal K. Katyal and George T. Conway III write:

What now seems an eternity ago, the conservative law professor Steven Calabresi published an op-ed in The Wall Street Journal in May arguing that Robert Mueller’s appointment as special counsel was unconstitutional. His article got a lot of attention, and it wasn’t long before President Trump picked up the argument, tweeting that “the Appointment of the Special Counsel is totally UNCONSTITUTIONAL!”

Professor Calabresi’s article was based on the Appointments Clause of the Constitution, Article II, Section 2, Clause 2. Under that provision, so-called principal officers of the United States must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.

He argued that Mr. Mueller was a principal officer because he is exercising significant law enforcement authority and that since he has not been confirmed by the Senate, his appointment was unconstitutional. As one of us argued at the time, he was wrong. What makes an officer a principal officer is that he or she reports only to the president. No one else in government is that person’s boss. But Mr. Mueller reports to Rod Rosenstein, the deputy attorney general. So, Mr. Mueller is what is known as an inferior officer, not a principal one, and his appointment without Senate approval was valid.

But Professor Calabresi and Mr. Trump were right about the core principle. A principal officer must be confirmed by the Senate. And that has a very significant consequence today.

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. [Continue reading…]

Acting attorney general opposes principal of constitutional checks and balances

The New York Times reports:

The acting attorney general, Matthew G. Whitaker, once espoused the view that the courts “are supposed to be the inferior branch” and criticized the Supreme Court’s power to review legislative and executive acts and declare them unconstitutional, the lifeblood of its existence as a coequal branch of government.

In a candidate Q. and A. when he sought the Republican nomination for senator in Iowa in 2014, Mr. Whitaker indicated that he shared the view among some conservatives that the federal judiciary has too much power over public policy issues. He criticized many of the Supreme Court’s rulings, starting with a foundational one: Marbury v. Madison, which established its power of judicial review in 1803.

“There are so many” bad rulings, Mr. Whitaker said. “I would start with the idea of Marbury v. Madison. That’s probably a good place to start and the way it’s looked at the Supreme Court as the final arbiter of constitutional issues.”

Mr. Whitaker lost the 2014 primary to Joni Ernst, who went on to win election to the Senate. But on Wednesday, he vaulted to power when President Trump fired Attorney General Jeff Sessions and appointed Mr. Whitaker as the acting attorney general, putting him in charge of the Justice Department.

Because Mr. Trump installed Mr. Whitaker as the nation’s top law enforcement official without undergoing the vetting process of a Senate confirmation hearing, his answers to the 2014 candidate questionnaire, published by Jacob Hall on the Caffeinated Thoughts website alongside answers by the other Republican primary contenders, offer a rare window into how he thinks about legal issues. [Continue reading…]

Words and walkouts aren’t enough. CNN should sue Trump over revoking Acosta’s press pass

Margaret Sullivan writes:

CNN White House correspondent Jim Acosta is a smart, tough reporter. He can also be a grandstander who seems to thrive on conflict with President Trump and doesn’t always know when to stop his aggressive questioning.

But whether you like Acosta’s style, it’s clear the White House crossed a bright line Wednesday when it took away Acosta’s “hard pass,” which allows him the access he needs to cover the White House.

That action amounts to punishing a member of the press for doing his job of informing the public — and then creating a false pretext to justify that relatiation.

Trump’s dislike of Acosta is well known, and he took it to a new level at a wild news conference Wednesday, calling him “a rude, terrible person” whom CNN should be ashamed of employing.

To make matters worse, Sarah Sanders lied — and circulated a misleadingly edited video to back herself up — when she claimed later that Acosta was being punished for “placing his hands on a young woman.”

A White House staff member was directed to take a mic out of Acosta’s hands; he certainly didn’t readily give it up but he was polite, and he came into physical contact with her only for a brief moment as he moved his arm to shield the mic.

I’ve heard various suggestions about how CNN or the press corps should respond to this retaliation: There should be a boycott, a walkout, a news blackout. And I’ve read the strongly worded rebukes from the White House Correspondents’ Association, from CNN and others.

But mere words aren’t enough. And a boycott or blackout not only runs counter to the core idea that the reporters are there to inform the public, but it also would cede the briefings to the worst Trump sycophants.

No, something more is called for: CNN should sue the Trump White House on First Amendment grounds. And press-rights groups, along with other media organizations, should join in to create a united and powerful front. (Fox News, which benefited from the press corps’ united front on its behalf when the Obama White House tried to exclude it from some briefings in 2009, should pay that solidarity forward by getting on board.) [Continue reading…]

Judge orders evidence to be gathered in emoluments case against Trump

The New York Times reports:

A federal judge in Maryland on Friday ordered evidence-gathering to begin in a lawsuit accusing President Trump of violating the Constitution by maintaining a financial interest in his company’s Washington hotel.

The plaintiffs are seeking records that could illuminate potential conflicts of interest between Mr. Trump and foreign leaders or state officials who patronize Trump International Hotel, blocks from the White House.

The judge, Peter J. Messitte of the United States District Court in Greenbelt, Md., said the Justice Department had failed to show a compelling reason to hold up the case while its lawyers appeal his earlier rulings. He ordered the parties to come up with a timeline within 20 days to produce evidence.

The lawsuit, filed by the District of Columbia and the State of Maryland, seeks for the first time to define the meaning of constitutional language that restricts the president from accepting financial benefits, so-called emoluments.

So far, Judge Messitte has ruled against Mr. Trump at every step. But the case is still in its early stages, and the Justice Department signaled on Friday that it would seek emergency relief from a higher court rather than comply with his latest order. [Continue reading…]