WTF Community

Day 671

Updated 11/21/2018 11:12 AM PST

1/ The White House authorized U.S. military troops deployed at the Mexican border to use lethal force and conduct law-enforcement operations. John Kelly's "Cabinet order" expanded the authority of troops at the border to include "a show or use of force (including lethal force, where necessary), crowd control, temporary detention, and cursory search" in order to protect border agents. The order could conflict with the 1878 Posse Comitatus Act, which prohibits the military from acting as law enforcement on U.S. soil. (Military Times / Axios)

This is a companion discussion topic for the original entry at

Thanking you now!!!

Happy Thanksgiving to you and all…


More shady business surrounding Matthew Whitaker. In January 2018, after Whitaker became Jeff Sessions’ chief of staff, he started receiving contributions to the campaign for his failed 2014 U.S. Senate bid. Say what?! Is he raising money to build a time machine so he can jump back four years and try again? Or could some kind of payola be going on? Which is more likely? Or the real question should be, why isn’t Whitaker in front of a congressional committee right now?


Yes, there’s a lot of opponents to Whitaker’s appointment…and legal actions piling up. We know that his appointment is to be T’s fix-it man, a bald version of Michael Cohen. All the payola that Whitaker is getting wreaks of corruption, and yes, many are alarmed at his position as T’s watch dog.

Looks like Vox did a deep dive on it. Go to Vox link for further links of these cases. They have created an easy way to see how many are concerned with this appointment.

The Justice Department’s Office of Legal Counsel issued an opinion last week that defended Whitaker’s appointment as legal. But that’s unlikely to quell the numerous legal challenges.

Here’s what you need to know about some of the cases brought so far.

  1. Senate Democrats are suing to block Whitaker

The case: Blumenthal v. Whitaker

Who’s bringing it: Government watchdog groups filed the lawsuit on behalf of Senate Democrats in DC federal district court. Senate Judiciary Committee members Richard Blumenthal (D-CT), Sheldon Whitehouse (D-RI), and Mazie Hirono (D-HI) are the lead plaintiffs.

What the case is about: Senate Democrats want to block Whitaker from serving as acting AG, arguing that his appointment violates the Constitution because he lacks Senate confirmation. Even though the role is temporary, they say, it tramples on the Appointments Clause, which gives the Senate the “advice and consent power” over “principal officers” — high-level Cabinet positions, of which the attorney general is definitely one.

Senators say there are legitimate questions about Whitaker’s background, from his comments about special counsel Robert Mueller to his sketchy business dealings to his pretty thin legal résumé. This would make for a contentious Senate confirmation in normal circumstances, but Whitaker, as acting AG, doesn’t have to face lawmakers’ scrutiny while still being empowered to carry out all the duties of the nation’s chief law enforcement officer.

If allowed to stand,” Senate Democrats argue in their lawsuit, “Mr. Whitaker’s appointment would create a road map for the evasion of the constitutionally prescribed Senate advice-and-consent role.

Read it here. Blumenthal v. Whitaker Complaint

  1. Maryland fights a health care case — and Whitaker’s appointment

The case: Maryland v. US

Who’s bringing it: Maryland’s Attorney General Brian E. Frosh. The case is currently in federal district court in Maryland.

What the case is about: Maryland is suing the Justice Department over its decision to stop defending protections for people with preexisting conditions under the Affordable Care Act. The suit originally named former Attorney General Sessions, but now Maryland is asking the courts to block Whitaker and recognize Rosenstein, the deputy AG, as the rightful acting AG.

“The Constitution and Congress have established vitally important processes for filling high-level vacancies in the federal government,” Frosh said in a statement. “Few positions are more critical than that of US Attorney General, an office that wields enormous enforcement power and authority over the lives of all Americans.”

Maryland’s motion argues that Whitaker’s appointment violates the federal statute that governs the attorney general order of succession, which would have put Rosenstein in charge. (Justice Department lawyers have said the Vacancies Reform Act can be used in lieu of the succession order.)

The case also argues that Whitaker’s appointment, though temporary, is unconstitutional because he hasn’t faced Senate confirmation and is serving as a “principal officer.

Read it here. Link to Maryland v US Injunction

And briefly - here are the subheadings of the various legal cases brought with Whitaker’s position in mind.

  1. A gun rights case

The case: Michaels v. Whitaker

  1. A Texas business leader finds a creative way to fight an indictment

The case: US v. William Douglas Haning

  1. An asylum ban challenge takes on Whitaker

The case: O.A. v. Trump

  1. And the most meta: a Mueller challenge where Whitaker comes up

The case: In re: Grand Jury investigation (Andrew Miller v. United States)


Iranian news have reported more than once, that Saudi Arabia is threathening Trump regarding Khashoggi’s case. Earlier they cited sources from within the Royal Family.

Here is the latest article:

Arab Paper: S. Arabia, UAE Threatening Trump over Khashoggi’s Case


Saudi Arabia and the UAE have threatened to disclose the details of US President Donald Trump’s questionable contracts and financial transactions with the two countries, if he takes any action against the ruling Bin Salman family in the Khashoggi’s case, a leading Arab paper reported on Saturday.

The Arabic-language Khaleej Online quoted a senior Saudi prince as saying, that Saudi Crown Prince Mohammed bin Salman has threatened Trump, that if he helps a coup against him after the scandal over the murder of prominent Saudi journalist Jamal Khashoggi, he will release documents and details of the deals which will trouble Trump and his administration.

According to the source, similar threats have also been posed by Abu Dhabi Crown Prince Mohammed bin Zayed who has declared since the first moments of revelations about Khashoggi’s case that he would stand beside bin Salman.

The source added that bin Salman has also threatened Trump that he would cancel the major arms deals between the two countries and would withdraw financial support for tens of billions of dollars of financial investment in the US.

The report came after Trump said the CIA did not conclude that bin Salman ordered the murder of Khashoggi.

Khashoggi was killed on 2 October in the Saudi consulate in Istanbul.

The US officials have reportedly said that such an operation would have needed the prince’s approval. But Saudi Arabia maintains it was a “rogue operation”.

“They didn’t conclude,” Trump said when asked about the CIA’s reported evaluation by reporters in Florida.

Also, the Crown Prince of Abu Dhabi, Mohammed bin Zayed, tweeted to say the UAE “will always be a loving and supportive home for our brothers in Saudi Arabia”.


Profile on Mueller in The Guardian. Straight up, Mueller is a stand up guy. He believes in the honest pursuit of the truth, stands by his word (honest) and is determined and diligent. Just hope this investigation is not curtailed, but if it is, we’ve been hearing that Mueller is smart enough to leave a lot of breadcrumbs.

And cynical as this may sound, I doubt very much that Mueller or his team would ever try to get this praiseworthy piece done by a PR firm. His stands by his work and that is enough, more than enough. Refreshing in this day in age of chicanery, sound bites and self puffery.

Covert and careful, Mueller is still moving with stealth in Washington DC, 50 years after he was shot and wounded in Vietnam as a first lieutenant in the US Marines.

For 18 months now, the former long-serving director of the FBI has been the calm centre of a gathering storm which may be about to break over Donald Trump’s White House.

During an exhausting period of perpetual leaks across DC, the office of Special Counsel Mueller has stood apart, seemingly impervious and water-tight.

Garrett Graff, author of The Threat Matrix: Inside Robert Mueller’s FBI and the War on Global Terror, interviewed Mueller for about 12 hours for the 2011 book. He said: “He is probably America’s straightest arrow, very by-the-book, very professional.

The word integrity seems to be almost sewn into the fabric of his pin-striped suits. “It’s why [Deputy Attorney General] Rod Rosenstein brought him into this role of special counsel,” Graff said, “because he is probably the one person in Washington that you could never accuse of having a partisan agenda – he’s always seen things with a very strong moral compass, instilled in him by his father, and really sees the world with a pretty black and white, right or wrong vision.”

The commendation for Mueller’s Bronze Star read: “Second Lieutenant Mueller’s courage, aggressive initiative and unwavering devotion to duty at great personal risk were instrumental in the defeat of the enemy force.”

Months later, after he was promoted to first lieutenant, Mueller was engaged in a close firefight. Graff wrote: “The incoming fire was so intense – the stress of the moment so all-consuming, the adrenaline pumping so hard – that when he was shot, Mueller didn’t immediately notice. Amid the combat, he looked down and realized an AK-47 round had passed clean through his thigh.

Mueller kept fighting.”


Here’s hoping the new Blue majority in the House will get to the bottom of this. They’ve already announced they will be investigating Trump’s business ties to Saudi Arabia and this should open the door to examining charges of extortion by the Saudis as well.

Business Insider’s summary of Trump’s extensive financial dealings with Saudi Arabia:

  • President Donald Trump stood by Saudi Arabia in a statement on Tuesday, despite the CIA reportedly concluding that Saudi crown Prince Mohammed bin Salman ordered the killing of journalist Jamal Khashoggi.

  • Following the uproar over Khashoggi’s disappearance, Trump tweeted that he had “no financial interests in Saudi Arabia.”

  • The Trump Organization does not have any buildings in Saudi Arabia, but his businesses have accepted large amounts of money from the Saudi government.

  • For instance, Trump’s hotel in New York City saw a huge financial boost from the visit of Crown Prince Mohammed in early 2018.

  • Additionally, Trump has had ties to Saudi investors for over two decades.

…Trump has long done business with the Saudis:

  • Alwaleed bin-Talal, a member of the royal family purchased the 282-foot yacht “Princess” for $20 million in 1991 after the boat was repossessed from Trump (Trump was nearing bankruptcy at the time) and was part of a group that purchased the financially troubled Plaza Hotel for $325 million in 1995.

  • In 2016, the New York Daily News reported that the Saudi government also purchased the entire 45th floor of the Trump World Tower, for $4.5 million, in June 2001. Given annual fee fares for the building at the time, Trump also was paid $5.7 million by the Saudis between the purchase and 2016, the paper reported.

Trump bragged about his business dealings with the Saudis during a 2015 campaign rally in Mobile, Alabama:

"I get along great with all of them; they buy apartments from me," Trump said. "They spend $40 million, $50 million. Am I supposed to dislike them? I like them very much!"

The most recent example came last year, as The Washington Post reported in August that a visit from Saudi officials to Trump’s Trump International Hotel in New York City helped boost the hotel’s quarterly revenue by 13% in 2018’s first quarter.

The bump came after two straight years of booking declines for the property, according to a letter obtained by the Post in which the manager of the Trump hotel cited “a last-minute visit to New York by the Crown Prince of Saudi Arabia.”

In addition, a lobbying firm connected to the Saudi government also paid $270,000 to the Trump International Hotel in Washington, DC, between October 2016 and March 2017.

Here’s a clip of Trump bragging about how much business he does with the Saudis – but even more importantly, he is basically saying that because they pay him millions he has to like them. I guess that means that even if their leader kidnaps a U.S. resident, tortures and then dismembers him, Trump still has to like the Saudis. (The link will drop you at Trump’s statement – you can circle back to the beginning of the MSNBC segment for more on Trump’s Saudi ties.)


He’s in deep. And I hope that Rep Schiff in House Intelligence AND perhaps the Saudi group mentioned above (Saudi Arabia and the UAE )will expose him for who he really is - money grubbing realtor, who wants global position.

Anti-liberal groups are blowing this thing up as to be expected, saying the libs are castigating everything Saudi. No, we’re just standing on moral ground, this should not happen, we do not condone it, particularly from an ‘ally’ like the Saudi’s.

Truth will win out…hopefully starting with the CREW group and their emoluments case against T. :statue_of_liberty::boom:


And it’s not just Trump’s business ties with Saudi Arabia that we should be concerned about – it’s also his political ties. I’m surprised that news outlets are not revisiting this story from May exposing a plot by Trump Jr. to enlist the Saudis’ help during his father’s campaign.

The Gulf emissary, George Nader, has reportedly flipped – so there’s hope we’ll find out if this plot to enlist the Saudis in Trump’s campaign is now a contributing factor in his defense of the Crown Prince.


English articles from Arabian newspapers are not so weird anymore.

Here is a recent article from 20. Nov. 2018:

Source: Pompeo Handed Saudi Arabia A Plan to Shield MbS from Khashoggi Fallout

TEHRAN (FNA)- Saudi Arabia’s king and crown prince are shielding themselves from the Jamal Khashoggi murder scandal by using a roadmap drawn up by the US Secretary of State, a senior Saudi source told Middle East Eye (MEE).

Mike Pompeo delivered the plan in person during a meeting with Saudi King Salman and his son, Crown Prince Mohammad bin Salman (MbS), last month in Riyadh, the source, who is familiar with Pompeo’s talks with the Saudi leaders, said.

The plan includes an option to pin the Saudi journalist’s murder on an innocent member of the ruling al-Saud family in order to insulate those at the very top, the source told MEE.

That person has not yet been chosen, the source stated, and Saudi leaders are reserving the use of that plan in case the pressure on bin Salman becomes too much.

“We would not be surprised if that happens,” the source told MEE.

The US State Department denied the Saudi source’s allegations, and called them “a complete misrepresentation of the secretary’s diplomatic mission to Saudi Arabia”.

"We’ve spoken publicly about our goals: to impress upon Saudi leadership the seriousness to which the Unites States government attaches to a prompt and complete accounting of the murder of Jamal Kashoggi,” State Department Spokesperson Heather Nauert told MEE.

According to the source, Pompeo outlined his plan on October 16, when he jetted over to Riyadh to meet with King Salman and MbS as international scrutiny on the Khashoggi case intensified.

Pompeo’s trip to the Gulf kingdom came exactly two weeks after Khashoggi, a prominent journalist and critic of the crown prince, was murdered inside the Saudi consulate in Turkish city of Istanbul on 2 October.

Just days before Pompeo touched down in Riyadh, MEE reported that Turkish officials had discovered that Khashoggi was killed and dismembered minutes after he entered the consulate to get papers he needed to remarry.

At the time of Pompeo’s trip to Riyadh, top US officials - including US President Donald Trump - had said very little about what happened to Khashoggi, who had been living in self-imposed exile in the US at the time of his disappearance.

Pompeo’s meeting with MbS in Riyadh raised eyebrows, as human rights groups worldwide were urging Washington to demand answers from its allies in Saudi Arabia.

The day after the high-profile meeting, Pompeo told journalists that the Saudis didn’t want to talk about the facts in Khashoggi’s case and neither did he.

“I don’t want to talk about any of the facts,” Pompeo said as he travelled to Turkey, adding that “they didn’t want to either”.

The Saudi source told MEE that Pompeo went to Riyadh to advise the Saudis on how to handle the fallout in the Khashoggi case.

After his meetings, however, Pompeo stated that he advised the Saudis to conduct a transparent investigation.

“We had direct and candid conversations. I emphasised the importance of conducting a thorough, transparent and timely investigation, and the Saudi leadership pledged to deliver precisely on that,” he noted.

“My assessment from these meetings is that there is serious commitment to determine all the facts and ensure accountability, including accountability for Saudi Arabia’s senior leaders or senior officials,” he added.

The Trump administration is expected to make a formal statement on Tuesday about the US’s findings so far in relation to Khashoggi’s murder.

Late last week, the CIA announced that it had concluded that MbS ordered the journalist’s killing, several US media outlets reported, but Trump has since moved to cast doubt on the US intelligence agency’s findings.

Pompeo’s plan for the Saudi leadership included several steps, the Saudi source said.

When Pompeo declared on October 18 that Saudi Arabia should be given “a few more days” to complete its investigation into the case, he was giving them time to begin implementing his plan, the source added.

“They [the Saudi leadership] have done everything he wanted to execute,” according to the source.

Since Pompeo’s visit to Riyadh, the Saudis have allowed Turkish investigators into their Istanbul consulate, offered to coordinate a joint Saudi-Turkish investigation, sent a team to Istanbul to pursue the probe and arrested at least 21 suspects.

The remaining step - pinning the crime on a member of the royal family - may be taken if the arrests of those Saudi suspects don’t work to ease the pressure on Riyadh, the source stressed.

Meanwhile, MbS and King Salman have toured Saudi Arabia, made public appearances at a major investor conference in Riyadh, and met with the journalist’s sons.

So far, Riyadh’s official investigation into Khashoggi’s murder has implicated two of bin Salman’s closest allies, deputy intelligence chief Ahmed al-Assiri and top aide Saoud al-Qahtani.

Both men have been relieved of their jobs. However, according to the Saudi source, they are expected to eventually retake positions of influence in Saudi Arabia.

MEE understands that neither Assiri nor Qahtani are among five Saudi suspects the country’s public prosecutor said would be facing the death penalty if convicted of “ordering and committing” the murder.

Last Thursday, the Saudi prosecutor said the leader of the Saudi team sent to kill Khashoggi in Turkey - widely believed to be MbS’s bodyguard, Maher Abdulaziz Mutrib - made the decision on his own to have Khashoggi killed.

Turkish President Recep Tayyip Erdogan has stated that the order to kill Khashoggi came from the “highest levels” of the Saudi leadership. However, Erdogan added in a Washington Post column that he does not believe King Salman was involved in the murder.

The kingdom maintains that MbS had no knowledge of the assassination plot and the subsequent attempt to cover it up, however.

Seven members of the death squad sent to kill Khashoggi were members of bin Salman’s personal security detail, MEE has previously reported.

Parts from a long article from Hareetz:

**Saudi Arabia’s Crown Prince Losing Favor as Senior Royals Reportedly Want Him Replaced



The brutal killing of Khashoggi, a prominent critic of the crown prince, in the Saudi consulate in Istanbul last month has drawn global condemnation, including from many politicians and officials in the United States, a key Saudi ally. The CIA believes the crown prince ordered the killing, according to U.S. sources familiar with the assessment.

Saudi Arabia’s public prosecutor has said the crown prince knew nothing of the killing.

The international uproar has piled pressure on a royal court already divided over 33-year-old Prince Mohammed’s rapid rise to power. Since his ascension, the prince has gained popular support with high-profile social and economic reforms including ending a ban on women driving and opening cinemas in the conservative kingdom.

His reforms have been accompanied by a crackdown on dissent, a purge of top royals and businessmen on corruption charges, and a costly war in Yemen.

He has also marginalized senior members of the royal family and consolidated control over Saudi’s security and intelligence agencies.

He first ousted then-powerful crown prince and interior minister Mohammed bin Nayef >
Some 30 other princes were also arrested, mistreated, humiliated and stripped of their wealth, even as MbS splashed out on palaces, a $500 million yacht, and set a new record in the international art market with the purchase of a painting by Italian Renaissance engineer and painter Leonardo Da Vinci.

The entire House of Saud has emerged weakened as a result.

According to one well-placed Saudi source, many princes from senior circles in the family believe a change in the line of succession “would not provoke any resistance from the security or intelligence bodies he controls” because of their loyalty to the wider family.

“They (the security apparatus) will follow any consensus reached by the family.”

Officials in Riyadh did not respond to a request for comment.

The United States, a key ally in economic and security terms, is likely to be a determining factor in how matters unfold in Saudi Arabia, the Saudi sources and diplomats say.

Trump and his son-in-law and adviser Jared Kushner have cultivated deep personal relationships with the crown prince. One Saudi insider said MbS feels he still has their support and is willing to “roll some heads to appease the U.S.”

But Trump and top administration officials have said Saudi officials should be held to account for any involvement in Khashoggi’s death and have imposed sanctions on 17 Saudis for their alleged role – including one of MbS’s closest aides.

U.S. lawmakers are meanwhile pushing legislation to punish Riyadh for the killing, and both Republican and Democratic senators have urged Trump to get tough on the crown prince.

King Salman, 82, is aware of the consequences of a major clash with the United States and the possibility that Congress could try to freeze Saudi assets.

Those who have met the king recently say he appeared to be in denial about the role of MbS in what happened, believing there to be a conspiracy against the kingdom. But they added that he looked burdened and worried.


When the king dies or is no longer be able to rule, the 34-member Allegiance Council, a body representing each line of the ruling family to lend legitimacy to succession decisions, would not automatically declare MbS the new king.

Even as crown prince, MbS would still need the council to ratify his ascension, one of the three Saudi sources said. While the council accepted King Salman’s wish to make MbS crown prince, it would not necessarily accept MbS becoming king when his father dies, especially given that he sought to marginalise council members.

Officials in Riyadh did not respond to a request for comment.

The Saudi sources say MbS has destroyed the institutional pillars of nearly a century of Al Saud rule: the family, the clerics, the tribes and the merchant families. They say this is seen inside the family as destabilising.

Despite the controversy over Khashoggi’s killing, MbS is continuing to pursue his agenda.

Some insiders believe he built his father a new but remote Red Sea palace in Sharma, at the Neom City development site – thrown up in a record one year at a cost of $2 billion – as a gilded cage for his retirement.

The site is isolated, the closest city of Tabouk more than 100 km (60 miles) away. Residence there would keep the king out of the loop on most affairs of state, one of the sources close to the royal family said.

Officials in Riyadh did not respond to a request for comment.


Breaking…(But read with a bit of skepticism…*)


Because of the way this is sourced, color me a little skeptical. Let’s see if other news organizations confirm/match it.
6:51 AM - 27 Nov 2018

Some clues as to what Manafort might have been lying about. And visits to Julian Assange could mean of course that there was coordination with the emails that were leaked.

We also know that Assange has been indicted (under seal?) - he just would need to be extradicted…and perhaps that is underway.

Manafort held secret talks with Assange in Ecuadorian embassy, sources say

Trump ally met WikiLeaks founder months before emails hacked by Russia were published

Donald Trump’s former campaign manager Paul Manafort held secret talks with Julian Assange inside the Ecuadorian embassy in London, and visited around the time he joined Trump’s campaign, the Guardian has been told.

Sources have said Manafort went to see Assange in 2013, 2015 and in spring 2016 – during the period when he was made a key figure in Trump’s push for the White House.

It is unclear why Manafort would have wanted to see Assange and what was discussed. But the last apparent meeting is likely to come under scrutiny and could interest Robert Mueller, the special prosecutor who is investigating alleged collusion between the Trump campaign and Russia.

A well-placed source has told the Guardian that Manafort went to see Assange around March 2016. Months later WikiLeaks released a stash of Democratic emails stolen by Russian intelligence officers.

Manafort, 69, denies involvement in the hack and says the claim is “100% false”. His lawyers declined to answer the Guardian’s questions about the visits.

In a series of tweets WikiLeaks said Assange and Manafort had not met. Assange described the story as a hoax.

Manafort was jailed this year and was thought to have become a star cooperator in the Mueller inquiry. But on Monday Mueller said Manafort had repeatedly lied to the FBI, despite agreeing to cooperate two months ago in a plea deal. According to a court document, Manafort had committed “crimes and lies” on a “variety of subject matters”.

His defence team says he believes what he has told Mueller to be truthful and has not violated his deal.

According to the dossier written by the former MI6 officer Christopher Steele, Manafort was at the centre of a “well-developed conspiracy of cooperation” between the Trump campaign and Russia’s leadership. The two sides had a mutual interest in defeating Clinton, Steele wrote, whom Putin “hated and feared”.

In a memo written soon after the DNC emails were published, Steele said: “The [hacking] operation had been conducted with the full knowledge and support of Trump and senior members of his campaign team.”

As a candidate Trump warmly welcomed the dump of DNC emails by Assange. In October 2016 he declared: “I love WikiLeaks.” Trump’s comments came after WikiLeaks released a second tranche of emails seized from the email account of John Podesta, Clinton’s campaign chairman.


I agree that we need to proceed with caution when evaluating this report from The Guardian – I’m sure we’ll find out one way or the other soon. In the meantime, there’s this to consider – could it be just a coincidence that the day before this news broke, Trump’s Secretary of State met with the Foreign Minister of Ecuador? Here’s the press release from the State Department:

Secretary Pompeo’s Meeting With Ecuadorian Foreign Minister Jose Valencia and Finance Minister Richard Martinez

Office of the Spokesperson
Washington, DC
November 27, 2018

The below is attributable to Spokesperson Heather Nauert:‎

Secretary Pompeo met on November 26 with Ecuadorian Foreign Minister Jose Valencia and Finance Minister Richard Martinez. They reaffirmed their commitment to expand bilateral cooperation on a number of political and economic issues…

They reportedly discussed routine diplomatic matters, but I’m wondering if the press release left off the part where Pompeo begged the Foreign Minister to prevent Julian Assange from being extradited – and to pretty please erase any surveillance tapes of Paul Manafort entering the embassy. /snark alert :wink:


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More input on the first suit mentioned above - Blumenthal v. Whitaker.

Lawfare blog gives a very reasoned approach to whether this suit will get standing (ability to bring a suit to court based on who and why they are negatively affected I believe) This gets into the weeds with legal arguments about who might be better prepared or have traction to get a suit like this brought in front of the US Court of Appeals.

The countdown begins…

*Whitaker could be appointed for 210 days, as an interim Acting AG. When T appoints a real AG, then until they are confirmed, Whitaker has a bit more time to be Acting AG.

  • What other lawsuit will get traction? Or conversely, will Whitaker’s appointment be subjected to other additional questions - why wasn’t Rosenstein appointed? Why isn’t this position subjected to Senate/Congressional approval, because Acting AG is acting as a Primary Actor?

Here is the scenarios Lawfare is suggesting…Am excerpting some of their argument here.

How are the Blumenthal v. Whitaker plaintiffs’ claims likely to fare under these precedents? Not well. The plaintiffs’ argument that Whitaker’s appointment deprives them of their opportunity to question and vote on attorney general nominees pursuant to the Appointments Clause resembles both the legislative argument at issue in Chenoweth and the Declare War Clause rejected in Campbell. And here, Congress does appear to have at least one statutory remedy still available to it: revoking the FVRA pursuant to which Whitaker was appointed.

All hope may not be lost, however. As support, the Whitaker plaintiffs cite a recent decision in Blumenthal v. Trump in which the U.S. District Court for the District of Columbia held that approximately 201 minority members of Congress have standing to sue the president for violating the Foreign Emoluments Clause by failing to seek Congress’s consent before accepting foreign emoluments. The district court squared that with relevant precedent by reading Raines as accepting such basis for standing and noting there is unlikely to be an adequate alternative remedy that plaintiffs can pursue, legislative or otherwise. It’s at least possible that the district court in Blumenthal v. Whitaker will take a similarly innovative approach, carving new space out for legislator standing.

Of course, whether the holding in Blumenthal v. Trump itself will have legs is an open question. The government has already requested certification for an interlocutory appeal, though it is still awaiting a decision. And even if the district court’s holding remains in place, it is not binding precedent and does not necessarily control the outcome in Blumenthal v. Whitaker. What’s more, the government will surely argue that the situations are not quite parallel, not least because of the ready legislative remedy available in regard to Whitaker’s appointment.

Given the above, it’s reasonable to anticipate that the senators have a serious standing fight on their hands—and that it’s one they may not win.

But here’s the thing: It may not matter all that much if they prevail. Someone, after all, will have standing to challenge Whitaker’s presence at some point. The attorney general makes hundreds of decisions that directly impact the lives of Americans, perhaps more than any other cabinet member. And the longer Whitaker remains in office, the more parties with standing will emerge, particularly as he takes actions that cause direct injury to private individuals. Indeed, the legitimacy of Whitaker’s appointment has already been raised by plaintiffs ranging from the state of Maryland to an aspiring gun-owner challenging a law limiting his ability to own firearms because of previous non-violent convictions. (See Lawfare’s resource page for litigation documents involving Whitaker’s appointment.) By the time the standing issue in this case is resolved, in whatever direction, it seems likely that a party with clear standing will have emerged. So while standing might be a long-term problem if the world were static, in the real world it seems likely to evaporate with time.

This raises the second major issue: the merits. There has been a rich debate over whether, in fact, the Whitaker appointment is legally defective. We won’t rehash the debate here save to refer readers to articles by John Bies, George Conway and Neal Katyal, and John Yoo arguing for the illegality of the appointment, and articles by Steve Vladeck and Will Baude on the side of its legality. It’s fair to say that the issue is genuinely contested by thoughtful people. And while it is not quite an issue of first impression in the Supreme Court, it’s an issue that does not have a whole lot of law and on which relevant practice is not recent. So one could imagine the court going either way.

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