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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts The Motion to Substitute
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Saturday, November 17, 2018
The Motion to Substitute
Gerard N. Magliocca
The Supreme Court would be doing everyone a favor by ordering briefing on the motion to substitute that Tom Goldstein has filed challenging the legality of the Acting Attorney General's appointment. I doubt that the Court would ever have to resolve this dispute. The mere order of briefing probably will hasten either the nomination of the next Attorney General or the withdrawal of Whitaker in favor of Rod Rosenstein, whom everyone agrees can serve as the Acting Attorney General.
Comments:
I don’t think Trump can do that without basically putting his neck in a noose. Apart from the crimes that are being investigated related to the 2016 election, it’s been very widely and authoritatively discussed that the Trump family has been involved in various illegal activities for a Lang time, including laundering money for Russian oligarchs and organized crime figures. The lynchpin of the Trump presidency is the DOJ policy that sitting presidents cannot be prosecuted for any kind of crime, including murder. It would be insane for Trump to allow anyone not submissive and loyal to him personally to sit in the AG’s chair long enough to sign an order disavowing that policy.
On the thread of an earlier post by Gerard on Whitaker's appointment, one of the usual suspects (a Trump acolyte) said that Trump was interviewing candidates and would soon submit a nomination to the Senate. One person referenced as interviewed by Trump was Chris Christie. But last Sunday on TV Christie stated that while he was at the White House he did not meet with Trump, that he was there for an earlier scheduled prison reform conference, indicating he wouldn't be interested in being AG.
Also, those interested in more details on Whitaker's background should check out Maureen Dowd's NYTimes column today. I doubt that Trump would submit a nominee to be considered by year end by the Senate especially with the position taken by Sen. Jeff Flake. Maybe in January or perhaps Trump will wait out 210 days.
"Alleged" does technically qualify as "discussed", I suppose. Regardless of how little actual evidence is advanced.
For those without access to NYTimes, here's a paragraph from Dowd's column:
"Like his new boss, Matthew Whitaker has a pattern of thuggishness, threats, scams and abusing the power of his office to wage partisan feuds. Our new top cop was on the board of a shady patent company that has claimed Bigfoot exists and time travel could be coming. It also touted a 'masculine toilet' to give well-endowed men 'peace of mind' by ensuring that their genitals would not touch porcelain." Despite Stormy Daniels' observation, did the final "touti" attract Trump's attention? Might Trump flush Whitaker with a different nominee? Soon?
The Supremes haven’t agreed to take the case in which this motion was made.
The Democrats here could care less about Whitaker. Rather, their goal is to continue the 2 1/2 year witchhunt into a third election. Trump should give Mueller until Jan 1 to produce a report, bring any indictments within his original mandate, and transfer everything else back to Justice.
SPAM is the Trump acolyte I referred to in my 7:38 PM comment. Now SPAM suggests what Trump "should" do, which would amount to Justice Denied, the act of a fascist. Note that SPAM is on board with Trump's witch hunt claim. Next SPAM may defend Trump's failures in France and here to honor American veterans; death due to Trump's bone spurs that decades earlier excused him from the draft.
Check this Huffington Post link:
https://www.huffingtonpost.com/entry/trump-getting-scorched-over-whitaker-by-repbulicans_us_5bf0a46fe4b0f32bd58a15fc for views of some conservatives on Whitaker and includes an ad critical of Whitaker. Chris Wallace's interview of Trump on Whitaker and Special Counsel Mueller exposes Trump's fears. Trump may stretch Whitaker's Acting AG role for close to the full 210 days in hopes of impairing Mueller's investigation.
It's scarcely news that Trump has a lot of enemies in the GOP leadership. His winning the nomination was in the nature of a hostile takeover, and they'd really rather have lost that particular Presidential election. For now they're willing to settle for him being handicapped by hostile subordinates.
It's just that they're reluctant to come out and say that, because Trump is quite popular with Republican voters.
Perhaps Brett can describe those hostile subordinates exclusive of those in the Trump'Administration that are handicapping Trump. Members of Congress and the federal judiciary are not Trump subordinates; nor are conservatives outside the Trump Administration. Perhaps Brett considers himself subordinate to Trump, whether or not Brett is a Trump Administration member, as Brett's words here and at the VC might suggest he's subordinate to Trump but not hostile. There may be some hostile members of the armed forces, especially those assigned to the Mexican border who will dine on MRE this Thanksgiving.
Shag:
The only "justice" in which the Party of Asses is interested is to recover their power. To accomplish this, the Donkeys have weaponized the national surveillance state and law enforcement as Jack used to warn us about when an Elephant was POTUS. #nostarchambers
Perhaps SPAM was too high on ganja at 11:08 PM to remember that the current POTUS is his dear leader, ELEPHANT L'ORANGE. After a night of mellow sleep, SPAM might check out this from the Huff Post this morning:
https://www.huffingtonpost.com/entry/john-oliver-authoritarianism_us_5bf27b50e4b07573881ff5fd It runs 18+ minutes. Check out the Trump fans to see if you might spot SPAM or Brett. John Oliver is optimistic but cautions us to keep up the fight against SPAM's dear leader. Can we expect more prognostication and suggestions from SPAM about his dear leader?
Oliver provides better news (as does Huff Post) than does SPAM with his report on another thread that Trump was interviewing for an AG and would nominate "shortly."
CA Bumpersticker: "BLUE IS THE NEW ORANGE COUNTY." That particular Blue Wave mussed up Trump's coif.
Shag: Oliver provides better news (as does Huff Post) than does SPAM with his report on another thread that Trump was interviewing for an AG and would nominate "shortly."
I concede the point. CNN, the source for that story, is a worse news source than John Oliver.
Like every good propagandist Bart tosses the buzzwords: "witchhunt," "weaponized the national surveillance state and law enforcement", etc.,
Remember, a propagandist is not interested in honest debate (or thought), just flinging propaganda. There's considerable proof of foreign involvement in our last Presidential (and more) elections. Considerable circumstantial evidence tying this to the GOP campaign/administration. The kind of thing that if there were a scintilla of the same for a Democratic candidate the Bart's of the world would be baying at the moon for more investigation. But instead, we get this partisan tripe. The same people who supported the Starr investigations cry 'withunt' now, even when the investigation is *led by a lifelong Republican operative!!!!* This shows you there is no honest thought here. Whether they are incapable of it or just not using it for 'strategery' reasons I leave up to the reader. Notice, too, Bart and Brett's constantly working conspiracy mindset. Even when they have the Presidency and other branches of government, Goldstein is always cleverly working to undermine the 'real' conservative. Sadly, this is not some extremist wing of the conservative movement, Bart and Brett, conspiracy theorists par excellence, are the *norm* for that movement now. As their Dear Leader would say, "Sad!" Whitaker is palpably unqualified and conflicted to anyone who is not a partisan dupe; that many Republicans who still have a shred of personal integrity and principle see this reality is hardly a fulfillment of the 'GOP establishment' or 'Deep State' to undermine Trump. Good men of good will and sense need not go along with what an idiot does or else there is conspiracy and perfidy.
Mr. W:
I believe the proper legal term for the "investigation" started during the 2016 POTUS campaign against a political opponent based on evidence-free ruling party oppo research is "partisan witch hunt." This is precisely the type of weaponization of national intelligence and law enforcement against which Jack Balkin warned during the Dubya administration. At the time, I clearly recall demanding evidence of actual abuse, but none was offered. Now that we have clear evidence of Donkey weaponization, the professors are silent, while you and Shag are actually defending these crimes! Mueller is a Bushie with a history of false prosecutions who hired a team of Democrats to continue this partisan witch hunt against a common political opponent. We are now approaching the two and a half year mark with no evidence of the originally alleged Team Trump conspiracy with Russia to hack the Dem computers or otherwise "fix the election." Instead, Mueller has destroyed Trump allies with perjury traps and charges completely unrelated to his mandate. Yet, the professors here remain silent, while you and Shag actually cheer on this star chamber! The U.S. Attorney for the District of Columbia needs to investigate this "investigation" to determine whether the Obama FBI, Justice Department and NSA committed crimes beginning with perjury to the FISA Court and denial of honest services fraud conducting the investigation without evidence.
"the "investigation" started during the 2016 POTUS campaign against a political opponent based on evidence-free ruling party oppo research "
That research has led to several confirmed interferences. "weaponization of national intelligence and law enforcement " You've always supported national intelligence and law enforcement powers, your sudden reversal, is, of course, most naturally attributed to your pure propaganda role "Mueller is a Bushie" Whom you followed vociferously, until now when the current GOP rep is palpably crazy. "e are now approaching the two and a half year mark with no evidence of the originally alleged Team Trump conspiracy with Russia to hack the Dem computers or otherwise "fix the election." " We know Flynn, Gates, Mannafort were certainly foreign agents. Trump Jr met with their reps. All intelligence agencies, including Trump appointees, acknowledge the Russian hack. You're a pathetic hack. You don't deserve to even be listened to here. Hack.
Mr. W: You've always supported national intelligence and law enforcement powers, your sudden reversal, is, of course, most naturally attributed to your pure propaganda role.
I vigorously defended NSA surveillance of foreign enemies as an invaluable intelligence gathering tool in our war with Islamic jihadis. Jack Balkin and others here raised the scenario of the Bush administration weaponizing that power to spy on political opponents. Now that the Democrats have made weaponization a reality, the only means of preserving the NSA tool and deterring its future abuse is to prosecute the Democrats crimes to the fullest extent of the law. The fact that Trump and a couple campaign members conducted perfectly legal business with Russians is not evidence of their entering into a conspiracy with the Russian government to hack the Dem computers or otherwise "fix the election." Strawmen slanders.
"You're a pathetic hack. You don't deserve to even be listened to here. Hack."
Mr. W's development here continues. At what point will he leave it at this? Might be pretty soon.
I note that SPAM ignores the cover up attempts by the Trump campaign and Administration. Also, SPAM seems to be accusing the intelligence agencies of political fraud in connection with their evidence/reports of Russian interference in the 2016 elections separate and apart from "oppo" research. When Obama was made of this intelligence, he didn't go public to warn Americans. Rather, Obama presented Congress' leaders with the intel and to discuss how this might be addressed with Americans. But Majority Leader McConnell said he would not go along. So Obama did not go public. A cynic might say that perhaps McConnell had personal interests what with his spouse's being considered Trump cabinet material. Trump connections went beyond his campaign to those on his team following the election, some of whom became part of Trump's Administration. While SPAM claims creds as once being an Intelligence Officer in his military service last century, I have pointed out that his having served as such does not mean actually being intelligent. As a wise man once said, "Let's leave no Stone unturned."
Shag:
As of May 2018, the Democrat media was reporting the Trump investigation was so secret that "all but a handful of officials were kept in the dark." You know, the usual "rogue agents" designated to take the fall when the government is acting illegally. https://www.nytimes.com/2018/05/16/us/politics/crossfire-hurricane-trump-russia-fbi-mueller-investigation.html Then, two months later, in a knee jerk reaction to Trump criticizing Obama for not stopping Russian meddling, former Obama DNA and current Democrat propagandist, James Clapper spilled Obama not only knew about the operation, but authorized it. https://www.realclearpolitics.com/video/2018/07/24/clapper_obama_ordered_the_intelligence_assessment_that_resulted_in_mueller_investigation.html Obama did not tell Congress about the "investigation" of Trump and it took years of subpoenas and FOIA suits to drag out the information.
"I vigorously defended NSA surveillance of foreign enemies as an invaluable intelligence gathering tool"
Almost a dozen of our intelligence agencies, as well as foreign ones, have concluded Russian interference in our elections. That is the action of a foreign enemy. The investigation into this has proven several high level officials in the Trump campaign/administration were foreign agents and/or lied about the same. Bart and other conservatives wants this to be waved away. They love their party and its momentary success over their country and any principle.
"Jack Balkin and others here raised the scenario of the Bush administration weaponizing that power to spy on political opponents. Now that the Democrats have made weaponization a reality"
When a campaign makes PAUL FREAKIN' MANAFORT, whom everyone familiar knew was a Russian tool, their CAMPAIGN MANAGER, of course they should expect heightened scrutinization. Bart's position is essentially 'of course I was for heightened surveillance with comparatively little oversight, but that was for brown people suspected of being foreign agents, not rich white guys who were proven foreign agents working for my side!"
Incredibly, Bart complains that the FBI et al *kept quiet about the Trump campaigns now proven many ties to Russia*!!!! The GOP operative led investigation into Hillary Clinton's 'email scandal' (which concluded their was not even enough there to suggest a move to prosecute) was broadcast to the media and public contrary to policy, but Trump's campaign's ties to Russian meddling was silenced under the same policy. Now, incredibly, our GOP hack cites *that* in the current GOP administration's favor!!! The chutzpah and cognitive reversals know no end, typical though for propagandists.
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