Obstruction of justice in pain sight: a ‘slow-motion Saturday night massacre’ at DOJ

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I have previously explained that President Trump’s appointment of Matthew Whitaker is unconstitutional and illegal. That unlawful act is being challenged in court, and the Legal challenges to Matthew Whitaker appointment are now before the Supreme Court.

The Court’s had better act quickly because this highly unethical individual who is currently under FBI investigation for his company that allegedly scammed customers out of $26 million, is now planning to take control of the Mueller investigation despite a DOJ ethics opinion recommending his recusal. Acting Attorney General Whitaker Won’t Recuse Himself From Russia Inquiry:

Matthew G. Whitaker, the acting attorney general, has decided not to recuse himself from the Russia investigation, despite being advised otherwise by a career ethics official, according to a Justice Department letter sent to Senate leaders. Mr. Whitaker will now have final say over any major developments made in that inquiry.

Read the letter.

The deputy attorney general, Rod J. Rosenstein, who has been overseeing the investigation while Mr. Whitaker spoke with ethics lawyers, will continue to manage it day to day, according to a senior department official, who was not authorized to speak publicly on the matter.

Mr. Whitaker has not yet been briefed on any aspect of the investigation, although one of his advisers has been briefed on major developments, according to the senior department official. That adviser has not shared information with Mr. Whitaker, and it is not clear when the acting attorney general will have his first briefing.

Mr. Whitaker must now be informed of any “significant” prosecutorial or investigative steps in the Russia inquiry, which is being led by the special counsel, Robert S. Mueller III.

Under the Justice Department’s regulations for special counsels, Mr. Whitaker requires Mr. Mueller to provide explanations for what he is doing, and if Mr. Whitaker decides that a proposed action is “inappropriate or unwarranted under established department practices,” Mr. Whitaker can block Mr. Mueller from taking it.

If Mr. Whitaker does block Mr. Mueller from taking a step, the Justice Department would have to notify Congress about that, with a description and explanation, after the special counsel completes his investigation, the regulation says.

Well, that what the regulation says, but does anyone really believe that this guy is going to follow regulations? Trump appointed him specifically to obstruct justice in the Mueller investigation, pure and simple.

The Justice Department on Thursday sent the letter explaining the recusal decision to Senator Chuck Schumer of New York, the Democratic leader, and Senator Mitch McConnell of Kentucky, the Republican majority leader.

It’s crystal clear that Department of Justice ethics officials believe Mr. Whitaker should recuse himself from supervision of the special counsel’s investigation,” Mr. Schumer said after receiving the letter. “Mr. Whitaker’s refusal to recuse is an attack on the rule of law and the American justice system, but it is undoubtedly consistent with what President Trump wanted — an unethical yes man who will do his bidding rather than do what’s right.”

But wait, you ask. Didn’t President Trump just nominate someone for Attorney General? Yes he did, and it turns out that William P. Barr is as much a piece of work as Matthew Whitaker and should also be recused from overseeing the Mueller investigation. A Memo and a Recusal Decision Underscore Potential Threats to the Mueller Inquiry:

Matthew G. Whitaker, who was installed last month as acting attorney general by President Trump, has cleared himself to supervise the special counsel’s investigation, rejecting the recommendation of career Justice Department ethics specialists that he recuse himself, according to a letter the department sent to Senate leaders on Thursday night.

The development came soon after the disclosure that the president’s nominee for attorney general, William P. Barr, had written unsolicitd memo to the Department of Justice this spring in which he strongly criticized one of the main lines of inquiry by the special counsel, Robert S. Mueller III — whether Mr. Trump had committed obstruction of justice. Disclosure of the memo raised questions about whether Mr. Barr would order Mr. Mueller to shut down that component of the inquiry if the Senate confirmed him.

Together, the developments underscored the potential threats to Mr. Mueller’s ability to complete his work without interference at a time when his inquiry appears to be drawing closer to the White House and the president’s most trusted associates.

* * *

Separately, the Justice Department provided to the Senate Judiciary Committee late on Wednesday a package of Mr. Barr’s writings and speeches. The documents included a 19-page, apparently unsolicited memo Mr. Barr sent to senior department officials in June in which he sharply criticized Mr. Mueller’s focus on whether Mr. Trump had obstructed justice.

Read Mr. Barr’s memo.

While acknowledging in his memo that he was “in the dark about many facts,” Mr. Barr argued that the Justice Department must not accept the notion that a president can violate a statute that criminalizes obstruction of justice when he is exercising his constitutional authority in an otherwise lawful way — such as by firing a subordinate, pardoning someone or using his “complete authority to start or stop a law enforcement proceeding” — but with a corrupt motive.

“Mueller’s obstruction theory is fatally misconceived,” Mr. Barr wrote. “As I understand it, his theory is premised on a novel and legally insupportable reading of the law. Moreover, in my view, if credited by the department, it would have grave consequences far beyond the immediate confines of this case and would do lasting damage to the presidency and to the administration of law within the executive branch.”

* * *

“It’s becoming pretty clear that the president is basing his choices for leadership at the Justice Department on candidates’ criticism of the Mueller investigation,” Senator Mark Warner of Virginia, the top Democrat on the Senate Intelligence Committee, wrote on Twitter. “We can all see what’s happening here. It’s past time for Congress to pass bipartisan legislation protecting the special counsel’s investigation from political interference,” he said.

Senator Warner went on tho say that William Barr gave the memo criticizing the special counsel investigation to the White House “almost as an attempt to solicit” the Attorney General position. Dem senator: Barr gave memo to White House ‘almost as an attempt to solicit’ AG position.

And yet …

Evil GOP bastard Senate Majority Leader Mitch McConnell (R-Ky.), who has argued the legislation isn’t needed because he doesn’t believe President Trump will try to fire Mueller, blocked a vote on the bill this week. Mueller protection bill blocked in Senate for third time.

Senate Minority Leader Charles Schumer (D-N.Y.) on Thursday said that William Barr’s criticism of special counsel Robert Mueller’s probe disqualifies him from serving as attorney general and urged President Trump to nominate someone else. Schumer tells Trump to drop attorney general pick over Mueller criticism.

Sen. Schumer is justified and correct in his position. The New York Times report continues:

[I]n an analysis on the legal blog Just Security, Martin Lederman, a Georgetown University law professor and former Office of Legal Counsel official in the Clinton and Obama administrations, criticized Mr. Barr for claiming that the Constitution gives the president “all encompassing” and “illimitable” power over law-enforcement matters.

Such “breathtaking claims,” Mr. Lederman wrote, are “inconsistent with vast swaths of U.S. history,” including a 1988 Supreme Court precedent that Mr. Barr did not mention. In that case, the court upheld a statute in which Congress had authorized the appointment of independent counsels to investigate and prosecute executive branch wrongdoing outside the president’s control.

Andrew Coan, professor of law at the University of Arizona and author of the forthcoming book, “Prosecuting the President: How Special Prosecutors Hold Presidents Accountable and Protect the Rule of Law,” adds at the Washington Post, William Barr’s memo on the Mueller probe is baseless and dangerous:

The crux of Barr’s argument, spelled out in a 19-page memo first reported by the Wall Street Journal, is that a president cannot obstruct justice when carrying out his normal constitutional responsibilities, such as hiring and firing officials and directing federal law enforcement operations. But that is just what Nixon was doing when he attempted to shut down the FBI investigation of Watergate in 1972. When this came to light two years later, no one seriously argued that Nixon had acted lawfully. Rather, he earned himself a one-way ticket out of town.

* * *

[The Nixon] episode poses an almost perfect test of Barr’s argument that a president cannot obstruct justice while exercising his constitutional responsibilities. As head of the executive branch, the president unquestionably possesses constitutional authority to supervise the FBI and the CIA. If the Constitution permits a president to exercise this authority for any reason, as Barr contends, there could be nothing improper about Nixon’s actions. Yet when Nixon released a transcript of this conversation on Aug. 5, 1974, it immediately became known as “the smoking gun.” He resigned the presidency three days later.

Now, almost 45 years on, a very similar case can be sketched. Trump asked FBI Director James B. Comey to end the investigation of national security adviser Michael Flynn. Trump then fired Comey and applied unrelenting pressure on Attorney General Jeff Sessions to end the Mueller investigation. When Sessions wouldn’t budge, Trump replaced him with an acting attorney general whose main qualification for office was his personal loyalty to the president. Finally, Trump nominated Barr, a public — and it now turns out, an even fiercer private — critic of the Mueller investigation.

All of these actions fall within a president’s constitutional responsibilities. But if Trump took them for the purpose of protecting himself and his friends from legal jeopardy, his conduct is nearly identical to Nixon’s, and he should meet the same fate. If the rule were otherwise, the president could never be investigated or removed from office for actions within the scope of his official authority — not even for accepting a bribe or acting in the service of a foreign power. That cannot be true.

Of course, we do not yet know all the facts in this case. But that is why Mueller’s investigation is so important. Barr’s call to shut down the obstruction side of that investigation — and to block the special counsel from questioning Trump on the subject — is legally baseless and practically dangerous. It would go far toward placing the president above the law. Senators should think long and hard before confirming an attorney general who holds such views.

America is in a constitutional crisis. This is the most unethical and lawless administration in American history, and this administration has surrounded itself with hangers on who are equally unethical and lawless to defend itself against the Mueller investigation. Trump is destroying the independence and credibility of the Department of Justice by trying to turn it into his personal law firm to protect himself and to prosecute his political opponents. This “cancer on the presidency” has to be removed from office post haste.





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