Three Things to Know About the Acting Attorney General

By now, everyone awake knows that Trump fired Jeff Sessions. Standing alone, no loss in my opinion. I have expressed my views of Sessions in earlier posts in this blog.

But there is the major issue of how this relates to Trump’s determination to abort the Mueller investigation. If successful at doing that, Trump might well immunize himself from the laws of the United States and, in effect, become the dictator he wants to be. That catastrophic constitutional crisis-in-the-making will play out however it plays out. It is far from clear that Trump’s ploy to replace Sessions with Matt Whitaker is going to work because the constitutionality of Whitaker’s status as Acting AG has been challenged by legal authorities on all sides of the political spectrum.

Meanwhile, there is more to the Whittaker Walt story. Sorry, I got confused with the movie, The Russians Are Coming, in which Carl Reiner plays Walt Whittaker whose name is a challenge to the Russian submarine captain whose sub has gone aground on a Martha’s Vineyard-like island. It’s Matt Whitaker we’re concerned with here. Though I do recommend everyone rent The Russians Are Coming. It’s very funny and we could all use a laugh right now.

Back to Matt Whitaker. Here are the three things:

  1. He believes that good judges should administer “biblical justice” (New Testament only) ahead of the justice prescribed by the statutes enacted by the government; I know that sounds batsh*t crazy but here is the evidence: https://wapo.st/2PLGiKr
  2. Whitaker, who was Chief of Staff to Jeff Sessions before Trump axed Sessions and made Whitaker “acting,” believes that Marbury v. Madison was wrongly decided: https://wapo.st/2JRQsUh For those not initiated into the secret cult of law and lawyers, Marbury was decided in 1803 in an opinion written by one of the imminent jurists in American legal history, John Marshall. Here is a nice summary of the case:

“Thomas Jefferson defeated John Adams in the 1800 presidential election. Before Jefferson took office on March 4, 1801, Adams and Congress passed the Judiciary Act 1801, which created new courts, added judges, and gave the president more control over appointment of judges. The Act was essentially an attempt by Adams and his party to frustrate his successor, as he used the act to appoint 16 new circuit judges and 42 new justices of the peace. The appointees were approved by the Senate, but they were not valid until their commissions were delivered by Secretary of State James Madison.

William Marbury had been appointed Justice of the Peace in the District of Columbia, but his commission was not delivered. Marbury petitioned the Supreme Court to compel the new Secretary of State, James Madison, to deliver the documents. Marbury, joined by three other similarly situated appointees, petitioned for a writ of mandamus compelling the delivery of the commissions….

The Court [unanimously] found that Madison’s refusal to deliver the commission was illegal, but did not order Madison to hand over Marbury’s commission via writ of mandamus. Instead, the Court held that the provision of the Judiciary Act of 1789 enabling Marbury to bring his claim to the Supreme Court was itself unconstitutional, since it purported to extend the Court’s original jurisdiction beyond that which Article III, Section 2, established.

Marshall expanded that a writ of mandamus was the proper way to seek a remedy, but concluded the Court could not issue it. Marshall reasoned that the Judiciary Act of 1789 conflicted with the Constitution. Congress did not have power to modify the Constitution through regular legislation because Supremacy Clause places the Constitution before the laws.

In so holding, Marshall established the principle of judicial review, i.e., the power to declare a law unconstitutional.”

Marbury v. Madison, Oyez, 10 Nov. 2018, http://www.oyez.org/cases/1789-1850/5us137.

  1. Whitaker also believes that states can overrule federal law. https://cnn.it/2FgIFRs

That position, which harkens back to the attitude of Southern states before the Civil War, is in direct conflict with the Supremacy Clause of the U.S. Constitution that, I believe, Whitaker has sworn to uphold. Again, for the uninitiated, here is the pertinent part of the Supremacy Clause:

“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.”

So, this Matt Whitaker is the man Trump picked to be Acting Attorney General of the United States.

And, if that weren’t enough, when confronted with questions about the legitimacy of the appointment, Trump claimed not to know Whitaker and that he had acted on the basis of what other (unnamed) people had said about him. The media, of course, took a deep breath and immediately found the audio tape in which Trump had declared he did know Whitaker.

You just couldn’t make this stuff up. Trump has demonstrated once again that he, and the people supporting him in the White House, are corrupt, bumbling, incompetent, dishonest and, dare I say it, just “terrible people.” That was Trump’s characterization of the media people who dared to press him for answers about all this as he had one foot on the plane to fly to Paris where he promptly humiliated himself and the United States, again.

The Republicans in Congress will almost certainly continue to play the Kids Gallery to Trump’s version of Clarabell the Clown from the Howdy Doody Show. https://bit.ly/2qECe0r For those too young to know (Howdy aired from 1947 to 1960), Clarabell did not speak. He had a squeeze- horn on his belt and used exaggerated gestures to communicate with Buffalo Bob and the Kids Gallery. Maybe that’s a partial solution to Trump: let’s get him a belt-mounted squeeze-horn and a gag. General Kelly can continue to play Buffalo Bob.

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