Mark Levin takes Laurence Tribe to school on Whitaker appointment

thursday on the radio, LevinTV host Mark Levin took Harvard Law Professor Laurence Tribe to school over the temporary appointment of Matthew Whitaker as acting attorney general.

“Laurence Tribe has gotten dumber and dumber as the years have gone on,” Levin said.

Tribe argues that the appointment of Whitaker, who previously served as chief of staff to former Attorney General Jeff Sessions, is unconstitutional. Levin explains that the appointment is perfectly lawful under federal law governing Cabinet vacancies and eligibility to temporarily act as attorney general while President Trump seeks a new nominee to send to the Senate for confirmation.

Levin played clips of several Democrats unthinkingly regurgitating the same talking points on television news. Listen to this clip and you’ll be better informed than the talking heads on TV.

I love your position but your legal argument is a little weak.

Further, what happens: suppose he continues to serve and does something the Dems don't like; then the court holds his position as temporary acting is not in accordance with the constitution? Then what? We don't really care if he fires Muller; does the termination stand up? Maybe yes even if his temporary service was unconstitutional.

He isn't really acting as Attorney General; temporary, interim or otherwise. He is just another federal employee of the office who under the rules applicable to action calls certain shots.

He's the guy you go to when the office manager is on maternity leave.

Particularly under circumstances where there is not a direct legal challenge to his actions. The actions are legal because of his employment position. Forget this acting AG stuff.

I don't have time to look at your legal argument other than the bare bones of the debate--the AG is gone; suddenly; we don't have a ready substitute appointment.

And we don't have someone who has been confirmed to another position.

So we have office procedural rules--who do you see when the AG is not there?

The person who tells you what to do is specified in the office rules--he acts. Not as AG but as another federal employee doing what he is supposed to do. We are looking for a substitute AG and will let you know when we find one.

Meantime, his actions, whatever he does, are legal and enforceable. The argument about the Constitutional position are not relevant to the question of whether what he did was legally effective--Congress calls that shot and they have enacted statutory authority for the proposition that it is.

The alternative is you appoint him and send his nomination to the Senate. If the R's in the Senate have balls they confirm him. The D's get a big kiss.

Thanks. A lot of your points might apply in a general context for a Federal office but wouldn't apply in this particular case.

1. Your point about what exactly Whitaker is doing is a good one, and I've made it on other threads covering this topic. I am certain his appointment as the "acting" U.S. Attorney General is unconstitutional, but I also think it doesn't matter at all unless and until he performs an official function as the U.S. Attorney General. For example, if he signs off on a Federal criminal prosecution where the death penalty is being sought (I believe the AG is the only one permitted by law to do this in a Federal death penalty case), you can be damn sure the defendant will successfully appeal the case on the basis of Whitaker's unconstitutional appointment.

2. Having said all that, I am pretty sure Whitaker is NEVER going to do anything beyond functioning as the "office manager" for the DOJ. Any official action he decides to take will be formally signed by the President of the United States, not the U.S. Attorney General.

3. With regard to that last point, the other thing to keep in mind here is my theory that his primary role is to do nothing in one particular matter: the Mueller investigation. By DOJ regulation, the Office of the Special Counsel must get approval from the AG (or Deputy AG, in the case of Mueller when Sessions was in office) to file a single indictment. With Whitaker in place, Mueller can submit requests for 5,000 indictments a day for the next two months ... and every request will sit on Whitaker's desk gathering dust. Whitaker won't even feel obligated to give an answer to Mueller about any one of them.

4. On one point you're certainly incorrect: I don't have time to look at your legal argument other than the bare bones of the debate--the AG is gone; suddenly; we don't have a ready substitute appointment. And we don't have someone who has been confirmed to another position. The DOJ already has a published list of offices for succession within the DOJ. If the AG resigns, the Deputy AG takes over, then the Associate AG, then the U.S. Attorney for the Eastern District of Virginia, etc. All of these positions are occupied by DOJ officials who have been confirmed by the Senate.

5. While the succession rules I posted above in #4 are legitimate, it's important to remember that this succession chain is not established under a Federal law passed by Congress. Instead, it's simply an internal DOJ protocol that can be changed at the President's discretion or even ignored completely (as President Trump decided to do when he appointed Whitaker in an "acting AG" role).

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