In response to questions, Mr. Barr said he viewed Mr. Mueller as a fair-minded investigator who would treat the president fairly. “I don’t believe Mr. Mueller would be involved in a witch hunt,” Mr. Barr said, contradicting Mr. Trump’s favorite description of the special counsel’s investigation.
.. Mr. Barr told Ms. Feinstein his memo was “entirely proper.” He was concerned by news accounts of Mr. Mueller’s investigation into whether Mr. Trump obstructed justice, he said, and thought such a theory “would have a chilling effect going forward over time.”
Mr. Barr said he expressed his concerns to Deputy Attorney General Rod Rosenstein over lunch before putting them in writing. “He did not respond and was sphinx-like in his reaction, but I expounded on my concerns.”
.. The nominee also said he had expressed similar concerns to Justice Department officials regarding the prosecution of Sen. Bob Menendez (D., N.J.) on bribery allegations, saying, “I thought the prosecution was based on a fallacious theory.” That case ended in a hung jury.
.. Likely to be of particular concern to Democrats is Mr. Barr’s disclosure Monday night that he had sent the memo to a wider group of Trump lawyers than was previously known, including Jay Sekulow, Marty and Jane Raskin and Pat Cipollone, a former Justice Department colleague who is now White House counsel. Democrats, including Senate Minority Leader Chuck Schumer of New York, have said Mr. Trump should withdraw Mr. Barr’s nomination given his views in the letter.
.. “I distributed it broadly so that other lawyers would have the benefit of my views,” he said.
On the Mueller probe more broadly, Mr. Barr said in prepared remarks: “I will not permit partisan politics, personal interests or any other improper consideration to interfere with this or any other investigation.” He will add: “On my watch, Bob [Mueller] will be allowed to complete his work.”
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.
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.
.. the the flaw in the appointment of Mr. Whitaker, who was Mr. Sessions’s chief of staff at the Justice Department, runs much deeper. It 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.
.. If you don’t believe us, then take it from Supreme Court Justice Clarence Thomas, whom Mr. Trump once called his “favorite” sitting justice. Last year, the Supreme Court examined the question of whether the general counsel of the National Labor Relations Board had been lawfully appointed to his job without Senate confirmation. The Supreme Court held the appointment invalid on a statutory ground.
.. Justice Thomas agreed with the judgment, but wrote separately to emphasize that even if the statute had allowed the appointment, the Constitution’s Appointments Clause would not have. The officer in question was a principal officer, he concluded. And the public interest protected by the Appointments Clause was a critical one: The Constitution’s drafters, Justice Thomas argued, “recognized the serious risk for abuse and corruption posed by permitting one person to fill every office in the government.” Which is why, he pointed out, the framers provided for advice and consent of the Senate.
.. What goes for a mere lawyer at the N.L.R.B. goes in spades for the attorney general of the United States, the head of the Justice Department and one of the most important people in the federal government.
Mr. Whitaker has not been named to some junior post one or two levels below the Justice Department’s top job. He has now been vested with the law enforcement authority of the entireUnited States government, including the power to supervise Senate-confirmed officials like the deputy attorney general, the solicitor general and all United States attorneys.
.. We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design. Senate confirmation exists for a simple, and good, reason. 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... Because Mr. Whitaker has not undergone the process of Senate confirmation, there has been no mechanism for scrutinizing whether he has the character and ability to evenhandedly enforce the law in a position of such grave responsibility. The public is entitled to that assurance, especially since Mr. Whitaker’s only supervisor is Mr. Trump himself, and the president is hopelessly compromised by the Mueller investigation... As we wrote last week, the Constitution is a bipartisan document, written for the ages to guard against wrongdoing by officials of any party. Mr. Whitaker’s installation makes a mockery of our Constitution and our founders’ ideals. As Justice Thomas’s opinion in the N.L.R.B. case reminds us, the Constitution’s framers “had lived under a form of government that permitted arbitrary governmental acts to go unchecked.” He added “they knew that liberty could be preserved only by ensuring that the powers of government would never be consolidated in one body.”
We must heed those words today.
The outgoing attorney general did more to enact the president’s priorities than any other member of the Cabinet, but that didn’t save him from White House hostility.
The paradox of Jeff Sessions’s tenure as attorney general is that no member of the Trump administration was so beleaguered and disparaged by President Trump, but no member got as much done.Even as he endured persistent verbal abuse from the president, Sessions steamed forward on a range of conservative social-policy priorities, aggressively reorienting the Justice Department’s stances on immigration, civil rights, and criminal justice, among other issues. In an administration plagued by incompetent and ineffective figures, Sessions was a paragon of efficacy—a distinction that horrified his many opponents, but did nothing to win Trump’s trust or affection.
- When it came time for Trump to pull the plug on the Deferred Action for Childhood Arrivals program, as he had promised he would during the 2016 campaign, the president got cold feet, but Sessions was happy to be the public face of the withdrawal. It was Sessions who
- tried to follow through (unsuccessfully) on Trump’s threat to cut off funding to sanctuary cities. It was Sessions who issued new guidance to immigration judges. And, most prominent, it was Sessions who
- went to the border to announce the Trump administration’s decision to separate migrant children from their parents.
Sessions openly said the plan to split families up was intended to deter migrants, even as other administration officials said otherwise. The policy was met with widespread and appropriate horror, and Trump eventually pulled back—but he had backed the plan before that, and Sessions had followed through... But these weren’t just Sessions’s pet issues. They were Trump’s as well. Hardline immigration policies, giving police free rein, fighting phantom voter fraud—these were all signature Trump projects. Sessions had been the first U.S. senator to endorse Trump, and Trump took from him a range of policy concepts—especially on immigration—as well as a top adviser, Stephen Miller. But Sessions’s stewardship of those projects didn’t return him to favor with Trump, who, according to Bob Woodward’s book Fear, called Sessions “mentally retarded” and a “dumb Southerner.”.. When McGahn’s departure was announced in August, I wrote that he’d been the most effective person in the West Wing, through his stewardship of judicial appointments. But Trump disliked and distrusted McGahn, and seemed eager to have him gone... Of course, the same issue poisoned both Sessions’s and McGahn’s relationships with Trump: the Russia investigation, and especially Special Counsel Robert Mueller’s takeover of it... Trump was angry that neither man had protected him. He raged at Sessions’s lack of “loyalty” and complained that Attorney General Eric Holder had “totally protected” Barack Obama. (What he meant by that is unclear.) He twice instructed McGahn to fire Mueller, and McGahn twice refused, once threatening to resign... Attorney General Matthew Whitaker assumes control of Mueller’s probe. Whitaker was outspokenly critical of the special counsel’s inquiry before joining the administration, so Trump may now have a leader of the Justice Department who is more pliable on the Mueller front. But the president is unlikely to find an attorney general who will do as much to move his priorities forward as Sessions did—and the new attorney general will come into the job knowing that loyalty and efficacy aren’t enough to garner favor with Trump.
For all of the president’s Twitter tantrums about how the investigation is supposedly “rigged,” Mueller has never alleged that the Trump campaign was complicit in Russia’s election meddling.
This is not for lack of thoroughness on the prosecutor’s part. Mueller has brought two sweeping indictments against Russian operatives. Rosenstein made these charges a point of emphasis in the interview. It is noteworthy, then, that these narrative “speaking indictments” appear to preclude the possibility of a conspiratorial relationship between the Kremlin and the Trump campaign. They indicate that Russia was conducting influence operations before Trump entered the campaign, that it orchestrated some against Trump, and that it wanted deniability.
Clearly, Rosenstein has been fixed on something often ignored by the president: Trump would benefit from being exonerated after a searching investigation by Mueller... He appointed Mueller at the end of a frenetic week in which, reportedly distraught, he discussed the possibility of covertly recording Trump at meetings to demonstrate the latter’s instability. This would be a prelude to invoking the 25th Amendment.. The Mueller appointment — after Rosenstein considered naming former Obama deputy attorney general James Cole — was designed to signal to the Washington establishment that Rosenstein (confirmed 94–6, thanks to overwhelming Democratic support in the Senate) was still on the team... For Trump’s part, moreover, it would be foolish to believe that the president’s drumbeat against the investigation means he fails to grasp the potential benefit of being cleared by Mueller. He surely gets it. Yet, unlike Rosenstein, Trump has had to live with the challenges of governing under a cloud of suspicion.. he may well believe these costs have outweighed any benefit he’d get from being cleared for something there was never much evidence he did. Plus, the president is nothing if not shrewd. There are political advantages in ripping the probe. He does not forfeit the upside of exoneration by stressing that his campaign and administration have been targeted by an investigation rife with leaks and other irregularities. Even if the riled-up Trump base believes the probe is a witch hunt, it would still credit him for being cleared... Rosenstein maintains — in the Journal’s words — that “the investigation has already revealed a widespread effort by Russians to interfere in the 2016 presidential election.”.. In fact, the indictments are more in the nature of publicity stunts than charging instruments. Foreign powers are subjected to counterintelligence investigations, not criminal probes, in part because they are essentially immune from prosecution. Mueller’s indictments against Russians enable Rosenstein and the special counsel’s other cheerleaders to argue that the dozens of people charged show that the special-counsel appointment was — as Rosenstein claims — “appropriate and independent.”.. But they don’t. An indictment is just an allegation; it does not prove anything. More to the point, everyone — very much including Rosenstein and Mueller — is well aware that Vladimir Putin was never, ever going to turn his operatives over to the American justice system for trial. As I’ve pointed out before, there are another 143 million people in Russia, and if Mueller were to charge every one of them, he’d have very impressive indictment statistics but he won’t have proved anything, and he won’t have come close to establishing that anyone in America, let alone the president of the United States, colluded in election interference... there is no reason the indictments against Russians could not have been filed by the Justice Department without the appointment of a special counsel.. Rosenstein refused to discuss well-sourced reports that he suggested covertly recording the president. It is not apparent whether he was asked about proposing that the 25th Amendment be invoked against Trump. Nor is there indication that Rosenstein was pressed on such flashpoints as whether he actually read the FISA surveillance warrant against a former Trump campaign official that he approved in June 2017.. (The warrant expressly said that the FBI believed that Trump campaign officials were likely complicit in Russia’s election interference.) And was Rosenstein asked about the Justice Department’s stonewalling of congressional inquiries into apparent investigative irregularities? We don’t know... a reader who had not been following the storms engulfing Rod Rosenstein’s tenure as deputy attorney general would come away come away from the Journal’s interview wondering why there is so much fuss about such a dedicated, unassuming public servant.