WashPost Op-ed: “Think Michael Whitaker Is a Hack? He’s One of Many”

Here’s my Washington Post op-ed on crony Attorneys General over the past century:

Intro:

Some suggest Matthew G. Whitaker’s appointment as acting attorney general is unprecedented. It is likely unconstitutional, but, unfortunately, it is not new. After about 150 years of mostly professional attorneys general, a long line of insiders, hacks, cronies and fixers has occupied the office for much of the past century, and has too often damaged the rule of law.

President Trump’s appointment of Whitaker is a steep drop off a slippery slope of corruption. It’s time to make the Justice Department more structurally independent from presidents and their meddling.

Unfortunately, there are even precedents for presidents appointing crony attorneys general as protection from investigation…

This op-ed proposes reforms to check the Attorney General with independent commissioners and a formally independent Office of Legal Counsel. The model borrows from independent agencies like the Fed and the SEC, but balances independence with enough presidential control and political accountability.

For more, see my earlier post and draft paper.

And it connects with this project on state prosecutors, mass incarceration (building on my colleague John Pfaff and “Locked In”) and my book project, “rise of the prosecutor politicians.”

Crony Attorneys General in American History: A Historical Argument for DOJ Independence from Presidents

“When you get to the White House there are two jobs you must lock up – Attorney General and director of the Internal Revenue Service.”[1]

–Joe Kennedy, Sr. to John F. Kennedy, perhaps apocryphally. (Joe Sr. had been involved with organized crime during Prohibition. Sound familiar?)

I am posting this draft paper early, before having a chance to work through all the footnotes and the normative structural proposal. But I think this paper is suddenly more relevant right now: There is a long history of crony and corrupt appointments as Attorney General in American history. It’s time for structural reform of the DOJ:

Continue reading “Crony Attorneys General in American History: A Historical Argument for DOJ Independence from Presidents”

Whitaker’s Appointment as Acting Attorney General Is Statutorily Illegal

President Trump has designated Matthew Whitaker as acting attorney general to replace Jeff Sessions. Neal Katyal and George Conway and others, citing Justice Clarence Thomas, have argued that the appointment violated the Constitution’s Appointments Clause, because Whitaker was never confirmed by the Senate for his original office, and cannot become a “principal” officer. I am suggesting another reason: The appointment did not follow Congress’s statutory rules for vacancy appointments, based on both a close textual reading and a broader purpose-based reading of those statutes. [Update: I’m now emphasizing purposive more than textual.]

Continue reading “Whitaker’s Appointment as Acting Attorney General Is Statutorily Illegal”

Thoughts for the morning after

You can’t always get what you want. But you get what you need:

1. The House. If we didn’t get past 218, the ACA and more would have been in huge trouble.

2. The House committees’ powers to subpoena, to hold public hearings, to hire Mueller if he is fired, then impeach. So Mueller has more job security than ever.

3. The overall national House vote was Democratic +8.5, a huge 54-46 split. I have always worried about Trump’s re-election chances. I am less worried today. That 54 percent, much of it booming in the swing states Trump won, is a strong showing for 2020, and you can’t gerrymander away that majority.

Look where Dems did well: the key 2020 battlegrounds. PA and Michigan swung back solidly. Wisconsin voted out Scott Walker (who had survived repeated recall attempts). Hillary’s purple states VA, NH, CO and NV stayed solid.

Those 7 states are the road to victory.

Am I disappointed about Beto/Cruz, Abrams/Kemp, Gillum/DeSantis, and the Senate? Of course. Painfully disappointed!

But let’s take a lesson that the country isn’t persuaded that Trump is a criminal, and we need to proceed thoughtfully and incrementally with investigation. Don’t rush impeachment at all. Maybe don’t impeach at all, given no chance of Senate 2/3 removal. Focus on winning 2020. Don’t impeach Kavanaugh. Stop talking about increasing size of Supreme Court. (We couldn’t even increase our own Senate share). But absolutely investigate Trump and all his co-conspirators. Use the House committees to get information and publicize it. But remember that much of the country doesn’t see these scandals the way we do. We need to focus on persuasion and outreach for 2 years – and every year thereafter.

2018 Predictions

All before exit polls are opened at 5:20. See my posts below for analysis and viewing guide for House here and Senate here.

House: I predict the Dems net +40, win 235 seats to 200.

Senate: Dems 51-49. Hold all seats but Heitkamp ND. Flip NV, AZ, and TN (my upset pick). Beto falls short by 1 point.

I’ll post Governors in a minute, but I’ll say Gillum wins, Abrams goes to run-off on Dec. 4.

2018 Midterms, Part II: Senate Sanguinity

OK, I’m an optimist by nature, but I’m not crazy. I know the odds are higher that the GOP gains two Senate seats than the Democrats gain the net +2 they need to retake the Senate.

The polls and the smartest poll analyzers saw a trend over the past week: a small but decisive shift back to the Democrats. And it’s not too hard to understand why: the MAGA pipebomber and the Pittsburgh and Louisville shootings were scary as all get-out (Get Out!) and Trump doubled down on the caravan insanity. The question is whether MAGA turnout also would get pumped up by Trump’s “fascistic” fear-mongering (conservative NY Times columnist Bret Stephens used the F-word, and he’s dead right).

The point is that the polling over the past few days and last night gave me a bit more hope for Clare McCaskill in Missouri and Phil Bredesen in Tennessee.

So here’s the path:

Hold five of six contested Democratic seats (mostly in very red states), in order of likelihood: Nelson (FL), Manchin (WV), Donnelly (IN), Tester (MT), McCaskill (MO). I’m not counting on Heitkamp. But the other five have better than 50% chances on FiveThirtyEight, some a lot better, and I like the recent polling trends in favor of Dems.

Flip three of four vulnerable GOP seats: Sinema over Martha McSally in Arizona, Jacky Rosen over Dean Heller in Nevada, Phil Bredesen over Marsha Blackburn in Tennessee. I love Beto O’Rourke and loathe Ted Cruz, and I’d seriously give my left __ for this race (seriously, let me know if I can still do that before the polls close). But until that procedure is available with a side of vasectomy, I’m not betting on it.  FiveThirtyEight has both Sinema and Rosen at just over 50% chance of winning, but Bredesen and O’Rourke are at about a 20% chance. But NBC and Harris had a poll out last night showing Bredesen up 3 and tied, respetively, and I have more trust in those polls than in the recent polls by Republican firms or GOP-leaning polls. (FiveThirtyEight stopped plugging in such late polls, but I take them into account). Meanwhile, Beto’s polling has him close but not close enough. If I had to bet on one upset, I’d pick Bredesen, even though FiveThirtyEight gives him just a bit lower of a chance than Beto has.

Sorry, I’m not counting on Espy in Mississippi, either.

The analysis this week has been a little oversimplified, but I get it: O’Rourke is legitimately a Texas homegrown politician, but his national celebrity and “Hollywood/Manhattan” fundraising became a double-edged sword and an easy if insultingly stupid target by someone with well-honed nasty skills like Ted Cruz. Meanwhile, Bredesen had been a popular Tennessee governor, a state-wide name with a folksy touch. I’d give the edge to Bredesen in this dynamic.

McCaskill closed badly with fearful caravan demagoguery, but I think the Greitens/Republican scandals this year in Missouri are a lot to overcome for Hawley.

And here’s how to watch it happen, in order of polls closing and FiveThirtyEight chances of a Dem win in fractional terms, and my predictions (and I’m bolding my big pivotal upset pick, Tennessee):

6 pm closing: Indiana: Donnelly over Braun. (538’s Odds 5 out of 7) (That’d be 1 of 5 D holds)

7:30 pm closing: West Virginia: Manchin over Morrissey. (Odds 7 out of 8) (That’d be 2 of 5 holds)

8 pm closing: Florida: Nelson over Scott (7 out of 10) (3d of 5 holds)

Tennesee: Bredesen over Blackburn (1 in 5 chance). (Big upset, 1st of 3 flips)

Missouri: McCaskill over Hawley (4 out of 7) ( 4th of 5 holds)

Texas: Cruz over O’Rourke (2 out of 9) (no flip)

Mississippi: Hyde Smith over Espy (sorry)

9 pm: North Dakota: Cramer over Heitkamp (1 in 4 chance, the inverse of Montana) (no hold)

10 pm: Montana: Tester over Rosendale (3 in 4, the inverse of North Dakota) (5th of 5 needed holds)

Arizona: Sinema over McSally (5/8) (2d of 3 flips)

Nevada: Rosen over Heller (4/7) (listen to Nevada expert Jon Ralston on this race. He called it for Rosen) (3d of 3 needed flips).

And if all of that happens, or if we are pleasantly stunned by Heitkamp, Beto, or Espy to offset another loss, then that’s how the Democrats would win the Senate.

“Faithful Execution” and Presidential Power, forthcoming 2019

Andrew Kent, Ethan Leib and I will be publishing this paper, “‘Faithful Execution’ and Article II” in the Harvard Law Review this spring. We explored for the first time the deep and overlooked historical origins of the two “faithful execution” clauses of the Constitution – in the Take Care clause and in the Presidential Oath – through centuries of English and colonial American usage for officers, up through the Convention and Ratification Debates. These clauses are cited by many to support expansive presidential power, but in historical context, their original meaning was to limit presidential discretion with duties of care, loyalty, diligence, and good faith that closely resemble modern fiduciary duties.

The article has implications for many presidential powers that have become relevant in recent years (and not just for Trump, but also for Clinton, Bush, and Obama, too). For example, the duty of faithful execution would limit the pardon power, the firing/removal power, the power to suspend and not to execute statutes, and the abuse of power to self-deal. This historical evidence also may suggest that modern private fiduciary duties emerged from English statutes imposing duties of care and loyalty on public officials.

The full paper is linked above. The abstract is below. An earlier Washington Post op-ed from last March more concisely set out an earlier suggestion of these historical links, but this research alters that hypothesis with deeper research.

Article II of the U.S. Constitution twice imposes a duty of “faithful execution” on the President, who must “take Care that the Laws be faithfully executed,” and take an oath or affirmation to “faithfully execute the Office of President.” These clauses are cited often, but their background and original meaning have never been fully explored. Courts, the executive branch, and many scholars rely on one or both clauses as support for expansive views of presidential power, for example, to go beyond standing law to defend the nation in emergencies; to withhold documents from Congress or the courts; or to refuse to fully execute statutes on grounds of unconstitutionality or for policy reasons.

This Article is the first to explore the textual roots of these clauses from the time of Magna Carta and medieval England, through colonial America, and up to the original meaning in the Philadelphia Convention and ratification debates. We find that the language of “faithful execution” was for centuries before 1787 very commonly associated with the performance of public and private offices—especially those in which the officer had some control over the public fisc. “Faithful execution” language applied not only to senior government officials but also to a vast number of insignificant officers, too. We contend that it imposed three core requirements on officeholders:

(1) diligent, careful, good faith, and impartial execution of law or office;

(2) a duty not to misuse an office’s funds and or take unauthorized profits; and

(3) a duty not to act ultra vires, beyond the scope of one’s office.

These three duties of fidelity look a lot like fiduciary duties in modern private law. This “fiduciary” reading of the original meaning of the Faithful Execution Clauses might have important implications in modern constitutional law. Our history supports readings of Article II of the Constitution that limit presidents to exercise their power in good faith, for the public interest, and not for reasons of self-dealing, self-protection, or other bad faith, personal reasons. So understood, Article II may thus place some limits on the pardon and removal powers, for example. The history we present also supports readings of Article II that tend to subordinate presidential power to congressional direction, limiting presidential non-enforcement of statutes for policy and perhaps even constitutional reasons, and perhaps constraining agencies’ interpretation of statutes to pursue Congress’s objectives. Our conclusions undermines imperial and prerogative claims for the presidency, claims that are sometimes, in our estimation, improperly traced to dimensions of the clauses requiring faithful execution.