The OLC’s Whitaker problems, big and small: Article II, selective textualism, Department Heads, and historical cherry-picking

I’ve been criticizing the large and small errors in the OLC memo supporting Whitaker’s appointment. I started last week by pointing out a significant error (or at least a significantly misleading passage) in the OLC’s memo on the relationship between statutes.

I want to highlight a bigger set of problems methodologically about the constitutional argument in terms of its inconsistent methods, its failure to consider originalism while somehow sliding into living constitutionalism, its failure to consider purposes and context (both for constitutional arguments and for statutory arguments), its shading of the historical evidence in favor of its preferred outcome, and its overlooking serious problems based on the Constitution’s text.

[Update: I have to emphasize up top how remarkable it is that the only precedent the OLC provides for an unconfirmed Acting AG is 1) from 1866, 2) for just a week 3) under the chaotic Andrew Johnson, 4) who is infamous for flouting the Senate and was nearly impeached for it, 5) before the AG was even a department head, because the DOJ did not yet exist, and 6) that distinction is constitutionally significant. (OLC p. 11) But there is more in terms of its selective interpretation of the 19th century, too. I also note there is good reason the early republic may have treated AGs differently from other cabinet officers. The Attorney General historically has been understood as a different kind of executive officer, a “quasi judicial officer” from the mid 19th century and on. I also show that AGs were treated differently from other cabinet members. My draft paper addresses this.]

1) The OLC is methodologically incoherent and inconsistent. The OLC uses narrowly textual arguments on the Vacancies Reform Act [VRA] statute, when the legislative history and purposes raise significant questions. This textual approach has many adherents, but the problem is that in the constitutional section, the OLC then suddenly abandons any textualism — and avoiding any originalism or purposivism — and flips to solely post-ratification history, focused mainly on the 20th and 21st century history. It’s not really post-ratification “liquidation.” It looks more like living constitutionalism. I thought that was not allowed.

Continue reading “The OLC’s Whitaker problems, big and small: Article II, selective textualism, Department Heads, and historical cherry-picking”

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:


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.