John Yoo: Trump’s Appointment of Whitaker ‘Unconstitutional’

Yoo said that the Supreme Court has made it “clear” that the president cannot appoint a “principal officer” without getting them confirmed by the Senate.

“The Constitution says that principal officers must go through appointment with the advice and consent of the Senate. In Morrison v. Olson, the Supreme Court made clear that the attorney general is a principal officer. Therefore, Whittaker cannot serve as acting attorney general despite the Vacancies Act (which does provide for him to be acting AG) — the statute is unconstitutional when applied in this way.”

This same argument was made by constitutional lawyer David Rivkin, attorneys Neal Katyal and George Conway, husband of presidential Kellyanne Conway, and Supreme Court Justice Clarence Thomas, who wrote in 2016 that even a temporary appointment of a principal officer that is not confirmed by the Senate would be unconstitutional.

 

The Constitution won’t let Trump silence White House aides

No matter how much the president loves them, the government can only enforce nondisclosure agreements for classified information.

Part of the outrage on the president’s part seems to be over Manigault Newman breaking what Trump saw as a promise not to talk about her time working for him. White House counselor Kellyanne Conway told ABC News: “We have confidentiality agreements in the West Wing — absolutely we do.” And Manigault Newman claims in her book that Trump’s reelection campaign offered her a $15,000-a-month salary in exchange for signing a confidentiality agreement.

.. NDAs for government workers, when they go beyond prohibiting the disclosure of classified information, are unconstitutional on their face.

.. For decades, courts have made it clear that the government may not censor unclassified material, “contractually or otherwise.”

.. I have reviewed one document that is purportedly a version of the White House NDA. It appeared to be nothing more than a Trump Organization document that was modified to apply to White House staff — in fact, it still had a provision that in any litigated dispute, the parties agreed that New York state law would apply, language that no standard federal document would ever have used.
.. It was also publicly reported that one early draft of a White House NDA contained a provision that imposed a $10 million fine to be paid to the federal government if the signatory shared confidential information.
.. While the term “confidential” in D.C. parlance is part of the national security classification framework, in these NDAs, it referred to potentially derogatory and unclassified information pertaining to the president.
.. These NDAs also ignored earlier guidance from the Office of Management and Budget that any NDAs should contain whistleblower protection provisions, clauses that would be contrary to the clear message desired by this administration.
.. his campaign entity, Donald J. Trump for President Inc., rather than the U.S. government, has reportedly filed for arbitration against Manigault Newman seeking millions for a violation of a 2016 NDA.
.. The NDA allegedly required her to keep proprietary information about the president, his companies or his family confidential and to never “disparage” the Trump family “during the term of your service and at all times thereafter.” This clause is in direct conflict with the legal precedents governing federal employees, but how an arbitration body will interpret constitutional questions is anyone’s guess.
.. In an April 2016 interview with The Washington Post, the future president said he supported making federal employees sign NDAs.
“I think they should,” Trump said. “. . . When people are chosen by a man to go into government at high levels, and then they leave government and they write a book about a man and say a lot of things that were really guarded and personal, I don’t like that.”

.. In 1961, President John F. Kennedy said the “very word ‘secrecy’ is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths and to secret proceedings.”

Bill Shine Likely as Next White House Communications Director

Bill Shine, a former Fox News executive who was close to Roger E. Ailes, the network’s ousted chairman, is expected to be offered the job of White House communications director, according to four people familiar with the decision.

Mr. Shine, who was forced out as co-president at Fox News last May for his handling of sexual harassment scandals at the network, has met with President Trump in recent weeks about taking the West Wing communications job, which has been vacant since Hope Hicks left the job in March.

.. Mr. Shine’s reluctance to walk into a chaotic West Wing.

.. As recently as a month ago, Mr. Shine didn’t want the job

.. The former television executive was reluctant to deal with all the scrutiny, part of which could focus on his own connection to the sexual harassment scandal at Fox News

.. widely seen as one of the top executives and protégé to Mr. Ailes.

.. A Long Island commuter and son of a New York City policeman, the unassuming Mr. Shine was viewed inside Fox News as embodying the network’s typical viewer, urging producers to run segments on bread-and-butter issues that would appeal to conservatives.

.. He was also known as a loyal taskman for Mr. Ailes

.. so devoted to his bosses that Rupert Murdoch ..  once privately described Mr. Shine to other executives as a “fine company man.”

.. Mr. Shine was accused in several lawsuits of covering up Mr. Ailes’s behavior and dismissing concerns from women who complained about it.

.. Several former employees at Fox News reacted with alarm — but not surprise

.. few people internally were concerned about the accusations that Mr. Shine played a role in concealing Mr. Ailes’ behavior, in part because some staffers think Mr. Shine was just doing his job to protect the company.

.. enjoys powerful allies inside the president’s inner circle.

.. He is close with Kellyanne Conway, the White House counselor, who is said to have advocated for him

.. Mercedes Schlapp, a communications adviser to the White House, was seen initially as a favorite for the job, in part because of her good relationship with the chief of staff, John F. Kelly.

.. it would add to the ties between Mr. Trump and the Fox News network

.. Mr. Shine is also close to Sean Hannity, the Fox News host who has the president’s ear.