1. Trump from Michael_Novakhov (198 sites): Palmer Report: Donald Trump scrambles to cover up worsening Matthew Whitaker debacle

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Donald Trump’s new Acting Attorney General Matthew Whitaker is an illegally appointed individual who is under FBI criminal investigation for marketing scam toilets – and that alone should be enough to quickly finish off his illegitimate tenure. But because the bar is set to uniquely low in the Trump regime, Whitaker hasn’t (yet) been pushed off the stage, and now Trump is scrambling to cover up the worsening Whitaker debacle.



The thing about people who occupy high ranking government positions, such as Acting Attorney General, is that the American people are supposed to be able to feel confident that they’re not shady criminals. As such, the White House is supposed to disclose the finances of anyone holding such a position. But when you look at Whitaker’s business history, it’s not difficult to imagine that his financial records might look like what you’d expect from a guy selling fake Rolexes out of his trench coat.




Accordingly, Donald Trump and his regime have simply decided not to even make a financial disclosure for Matthew Whitaker. It makes logical sense from a villainous standpoint; the heat they’ll take for refusing to make the disclosure is probably less than the controversy they’d face if Whitaker’s ugly finances did become public.


But now the lawyers are getting involved, specifically lawyers with the kind of FOIA experience to pry Matthew Whitaker’s financial records loose from the White House’s clutches. America Oversight is on the case, even as former Office of Government Ethics Director Walter Shaub says that Trump’s attempt at keeping it a secret is “illegal, unheard of, and highly suspicious.” Meanwhile, Whitaker still has his Twitter account locked down.

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The post Donald Trump scrambles to cover up worsening Matthew Whitaker debacle appeared first on Palmer Report.

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1. Trump from Michael_Novakhov (198 sites)


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1. Trump from Michael_Novakhov (198 sites): Do mass shootings increase trump election chances? – Google News: Trump sees wildfire areas, consoles those harmed by shooting – Brownsville Herald

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Brownsville Herald

Trump sees wildfire areas, consoles those harmed by shooting
Brownsville Herald
PARADISE, Calif. (AP) — President Donald Trump on Saturday acknowledged Californians suffering from twin tragedies, walking through the ashes of a mobile home and RV park in a small northern town all but destroyed by deadly wildfires and privately …
California Healthline Daily EditionCalifornia Healthline

all 9,321 news articles »

Do mass shootings increase trump election chances? – Google News

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1. Trump from Michael_Novakhov (198 sites): Palmer Report: Another one bites the dust

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Republican political operative Rick Wilson, who hates Donald Trump every bit as much as the rest of us, famously said that everything Trump touches dies. We’ve seen it time and again: a lifetime of bankruptcies, his investors’ lives ruined, his numerous marriages ending disastrously. For the past two years Trump has been damaging America just by pretending to be the president. We’ve also seen Trump’s own people consistently circle the drain. Now here goes another one.



If you want to know how things tend to turn out for Donald Trump’s henchmen, just ask Michael Cohen, Paul Manafort, Rick Gates, or Michael Flynn. Oh wait, you can’t, because they’re all either behind bars or have agreed to go to prison. How about Trump’s doctors? Ronny Jackson and Harold Bornstein have both seen their reputations ruined and careers damaged simply by having Trump as a patient. This brings us to a guy named Matthew Whitaker.


Who is Matthew Whitaker? That’s the question most people were asking when Donald Trump tweeted last week that he was the new Acting Attorney General for the United States. But that answer has come quickly: he’s the kind of henchman Trump had to settle for after he couldn’t find anyone more suitable. Whitaker’s background consists of marketing fake time machines and scam toilets, and the kind of profoundly stupid things that make Trump’s other henchmen look like Einstein in comparison.




Last week we learned that Whitaker’s scam company had been shut down by the by the Federal Trade Commission last year. Last night we learned that Whitaker and his company are under active criminal investigation by the FBI. Would a toilet scam have been enough of a priority for the FBI that Whitaker would have ended up being charged and prosecuted? We don’t know.


But now that Trump has illegally inserted Whitaker into the DOJ and instructed him to use his position to commit obstruction of justice, thus making Whitaker’s downfall a matter of national security, the FBI more or less has to make the toilet scam investigation a priority. Matthew Whitaker is going down for this. Maybe he wouldn’t have if he’d remained out of Donald Trump’s orbit, but he will now. It’s the same story nearly every time Trump picks a new henchman to do his dirty work.

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1. Trump from Michael_Novakhov (198 sites): Palmer Report: The real reason Julian Assange has already been criminally charged ahead of Robert Mueller’s big move

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This week we learned, thanks to an errant court filing that may not have been intentional in nature, that the United States federal government has already criminally charged WikiLeaks founder Julian Assange. Whether Robert Mueller ends up succeeding in extraditing Assange or not, the big question floating around has been why Assange was indicted and charged before Mueller’s upcoming big Trump-Russia moves. There’s a highly plausible legal reason for this.



Earlier this year we saw Mueller and his prosecutorial allies indict several Russian nationals, and even a few Russian entities, for their role in trying to alter the outcome of the 2016 U.S. Presidential election. These are people who will never be extradited or put on trial, so why bother? On one level it was a warning shot about meddling in the 2018 elections. But it also served another purpose. By charging the Russian hackers with certain felonies, it laid the legal groundwork for indicting certain Americans for conspiracy to commit those same crimes. In other words, if any given Trump campaign adviser (or, ahem, Trump family member) knew that the Russians were hacking the election while they were doing it, those individuals can be charged accordingly.




This brings us back to Julian Assange. He’s been accused – along with a whole lot of other things – of having taken stolen Democratic Party emails from Russian hackers and feeding them to members of the Trump campaign, and then releasing them publicly. We don’t know what charges Assange has been hit with. But let’s say, hypothetically, that it’s espionage. This would allow Mueller to then indict anyone in league with him – including Trump advisers – for conspiracy to commit espionage.


Again, we don’t know what Julian Assange has been charged with, only that he’s already been charged. But it’s a safe bet that the Feds have done this at least partly to lay the groundwork for indicting Donald Trump’s people with conspiracy to commit those same crimes. The Feds may have also gotten the Assange ball rolling early in order to begin working on the extradition process before everything hits the fan this month.

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The post The real reason Julian Assange has already been criminally charged ahead of Robert Mueller’s big move appeared first on Palmer Report.

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1. Trump from Michael_Novakhov (198 sites)


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1. Trump from Michael_Novakhov (198 sites): trump under federal investigation – Google News: ‘It’s like total devastation’: Trump visits Paradise lost in California fire – USA TODAY

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USA TODAY

‘It’s like total devastation’: Trump visits Paradise lost in California fire
USA TODAY
Under questioning from reporters, Trump returned to his weeklong theme that forest management was to blame for the wildfires. He earlier had threatened to withhold federal money because of what he deemed as state officials’ mismanagement. “Other
Trump Visits California As Wildfire Death Toll RisesCBS Los Angeles

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trump under federal investigation – Google News

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1. Trump from Michael_Novakhov (198 sites): putin won US 2016 election – Google News: A huge question looms over Trump after the CIA concludes the Saudi crown prince ordered Jamal Khashoggi’s killing – Business Insider

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Business Insider

A huge question looms over Trump after the CIA concludes the Saudi crown prince ordered Jamal Khashoggi’s killing
Business Insider
… after being briefed on the matter, it would be reminiscent of his response to Russian President Vladimir Putin after the US intelligence community concluded with high confidence that Russia meddled in the 2016 election to elevate Trump to the

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putin won US 2016 election – Google News

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1. Trump from Michael_Novakhov (198 sites): trump russian ties – Google News: A huge question looms over Trump after the CIA concludes the Saudi crown prince ordered Jamal Khashoggi’s killing – Business Insider

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Business Insider

A huge question looms over Trump after the CIA concludes the Saudi crown prince ordered Jamal Khashoggi’s killing
Business Insider
Trump, who has a long history of business ties to Russia, often praises Putin and says it’s important for the US to foster closer ties with Russia so the two countries can cooperate on matters of mutual interest, like counterterrorism. He has faced
Trump pitted against his intelligence community with CIA’s latest on Khashoggi – analysisAhval
In Khashoggi murder case, Trump is torn between 2 tyrantsYahoo News

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trump russian ties – Google News

1. Trump from Michael_Novakhov (198 sites)


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1. Trump from Michael_Novakhov (198 sites): Trump and Russia – Google News: A huge question looms over Trump after the CIA concludes the Saudi crown prince ordered Jamal Khashoggi’s killing – Business Insider

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Business Insider

A huge question looms over Trump after the CIA concludes the Saudi crown prince ordered Jamal Khashoggi’s killing
Business Insider
Trump previously sided with Russia over the US intelligence community, and if he does the same with Saudi Arabia, there would be one key difference. “The CIA concluded with high confidence that [Crown Prince Mohammed] ordered the assassination of a …

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Trump and Russia – Google News

1. Trump from Michael_Novakhov (198 sites)


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1. Trump from Michael_Novakhov (198 sites): donald trump russia – Google News: A huge question looms over Trump after the CIA concludes the Saudi crown prince ordered Jamal Khashoggi’s killing – Business Insider

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Business Insider

A huge question looms over Trump after the CIA concludes the Saudi crown prince ordered Jamal Khashoggi’s killing
Business Insider
President Donald Trump was briefed on the agency’s findings Saturday. The development raises a critical question for Trump: will he accept his own intelligence agency’s assessment or Saudi Arabia’s? Trump previously sided with Russia over the US …

and more »

donald trump russia – Google News

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1. Trump from Michael_Novakhov (198 sites): Politics: Andrew Gillum (D) concedes to Trump ally Ron DeSantis (R) in Florida’s gubernatorial race

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DeSantis, a former member of Congress, edged out Tallahassee Mayor Andrew Gillum (D), who would have become Florida’s first black governor. Gillum had conceded the race on election night, but as the vote counts became tight, he rescinded his concession and had been calling for counting to continue. “I wanted to take a moment to […]

Politics

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1. Trump from Michael_Novakhov (198 sites): Russian Intelligence, organized crime and mass shootings – Google News: This RSS feed URL is deprecated

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This RSS feed URL is deprecated, please update. New URLs can be found in the footers at https://news.google.com/news

Russian Intelligence, organized crime and mass shootings – Google News

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1. Trump from Michael_Novakhov (198 sites): putin won US 2016 election – Google News: Former Donald Trump aide George Papadopoulos, who was outed by Alexander Downer asks for prison delay – NEWS.com.au

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NEWS.com.au

Former Donald Trump aide George Papadopoulos, who was outed by Alexander Downer asks for prison delay
NEWS.com.au
Papadopoulos admitted in the US District Court proceedings to lying to the FBI about his contact with Russian nationals and Maltese professor Joseph Mifsud, and an attempt to arrange a meeting in 2016 between Trump and Russian President Vladimir Putin.

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putin won US 2016 election – Google News

1. Trump from Michael_Novakhov (198 sites)


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1. Trump from Michael_Novakhov (198 sites): Politics: A ‘stress test’ for the next campaign: Florida recount sets the rules of engagement for the 2020 race

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The exhausting review of ballots in three statewide races did little to alter the dynamic in those contests, but allowed both parties to hone their political and legal strategies.

Politics

1. Trump from Michael_Novakhov (198 sites)


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1. Trump from Michael_Novakhov (198 sites): Palmer Report: Turn out the lights, this idiot is finished

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Trump exerted his power very forcefully in the post-midterm press conference, during which he railroaded several journalists in a fit of barely suppressed rage. However, the result of this misguided move is making itself manifest in the form of the U.S. Judicial Branch (again). The judge, who had been appointed by Trump, courageously did the right thing, because he upholds the law, and ordered that Jim Acosta be given back his press pass and all access to Trump’s press conferences


Instead of tackling the freedom of the press issue, the judge focused instead on the lack of due process that surrounded the barring of Mr. Acosta from the White House. In other words, the Trump regime is not a monarchy, and Trump does not have free rein to arbitrarily dish out legal punishment simply because he personally doesn’t like something or someone.


One has to wonder if Trump is capable of discerning the difference between running a company and running a country. Thus far, he seems to be woefully impotent as his bark lacks bite. He has demonstrated, fairly quickly, that he lacks the skill set to inspire quality legislation, or to be the inspiration for anything, other than hate.


Paul Ryan seems to have gone into hiding, so Trump is flailing without some sane advice. Ryan is probably renewing his passport as we speak, just in case. And let’s not forget Mitch McConnell, whose loud blabber mouth has gone mysteriously quiet. Therefore, Trump is more lost than usual.




Let’s not forget that Trump is under a tremendous amount of stress and is a tad bit of a dotard. In most countries, if you have reached the age of 72 without acquiring any wisdom, you are generally considered an idiot. But not in America, where we celebrate stupidity, apparently. Trump did not only not hire the best people, he didn’t even hire the fifth best people. Most people don’t want to do any kind of business, political or otherwise, with Trump because they know he is a con man.


So what’s left of Trump’s sixth rate, zero-experience staff is flailing as well, at least those who haven’t been fired or indicted. And let’s face it guys, there has been absolutely no sign of the so-called, deeply undercover, “adult in the room.”

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The post Turn out the lights, this idiot is finished appeared first on Palmer Report.

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1. Trump from Michael_Novakhov (198 sites): trump electorate – Google News: After trading barbs all year, Newsom and Trump meet at California fire zone – Politico

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Politico

After trading barbs all year, Newsom and Trump meet at California fire zone
Politico
While Trump is reviled by much of the California electorate, the area at the heart of the fire’s devastation supported the president in 2016. In the town of Paradise almost completely destroyed by the Camp Fire, Trump won 53 percent of votes in 2016

and more »

trump electorate – Google News

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1. Trump from Michael_Novakhov (198 sites): Comey – Google News: US House Republicans to Subpoena James Comey, Loretta Lynch – PJ Media

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PJ Media

US House Republicans to Subpoena James Comey, Loretta Lynch
PJ Media
In the final weeks of their majority, House Republicans plan to interview two key witnesses as part of a joint committee investigation into the FBI’s investigations of the Trump campaign and former Secretary of State Hillary Clinton’s use of a private
James Comey welcomes questioning from House GOP, but in PUBLIC hearing (is THIS why?)Twitchy

all 5 news articles »

Comey – Google News

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1. Trump from Michael_Novakhov (198 sites): trump and intelligence community – Google News: Trump is defending Mohammed bin Salman’s lies. Congress must insist on the truth. – Washington Post

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Washington Post

Trump is defending Mohammed bin Salman’s lies. Congress must insist on the truth.
Washington Post
As in the case of Russia’s interference in the 2016 presidential election, Mr. Trump is rejecting a firm conclusion by the U.S. intelligence community that he finds politically inconvenient. And as in that instance, Congress should move to base U.S

trump and intelligence community – Google News

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1. Trump from Michael_Novakhov (198 sites): Lawfare – Hard National Security Choices: Whitaker’s Appointment and Broader Risks at the Justice Department

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Most of the concerns over Matthew Whitaker, recently tweeted into office as acting attorney general, have centered on what he might do to the Mueller investigation. In this brief post, I consider some of the potentially broader effects on the Department of Justice, starting with FISA and expanding outward. For President Trump, who I believe typically views the world through the straw-sized aperture of his own self-interest, Whitaker’s loyalty, demonstrated through often-expressed hostility to Mueller’s investigation, is an affirmative reason to appoint him. Largely irrelevant to the president, I believe, are any risks posed by the appointment for the Justice Department’s other activities in law enforcement and national security. For those of us who take a wider view, however, what are those risks? And what do they tell us about whether this appointment was sensible?

 

1. To begin with a question I have been asked repeatedly, can Whitaker approve FISA applications? The statute requires traditional FISA applications to be approved by “the Attorney General”—see, for example, 50 U.S.C. § 1804(a)—a term defined in § 1801(g) to “mean[] the Attorney General of the United States (or Acting Attorney General), the Deputy Attorney General, or, upon the designation of the Attorney General, the Assistant Attorney General designated as the Assistant Attorney General for National Security under section 507A of title 28.” (Absent valid approval, any evidence resulting from the authorized surveillance might be suppressed on motion by an aggrieved party, preventing it from being used in trial.) Many other FISA actions similarly require the approval of or action by the attorney general, including annual certifications under 50 U.S.C. § 1881a, the FISA Amendments Act, where the same definition of “Attorney General” applies under 50 U.S.C. § 1881. As far as FISA’s plain language is concerned, therefore, the “Acting Attorney General” can approve FISAs.

The statute does not say anything about who may or may not be the “Acting Attorney General.” And the legislative history of FISA suggests that the statute was not intended to independently limit who may or may not be the “Acting Attorney General.” In 1978, Congress explained that the “Deputy Attorney General is appropriate” to include within the statutory definition of “Attorney General” because, “as the second-ranking official in the Justice Department, he would most often be the Acting Attorney General in the Attorney General’s absence.” H.R. Rep. No. 95-1283, Part I, 95th Cong., 2d Sess. 54 (1978) [FISA House Intelligence Report].

Notably, in 1978, Congress rejected the government’s proposal, based on a “need to lessen the administrative burden on the Attorney General,” to include an assistant attorney general in the definition of “Attorney General.” Based on “the assurance of Attorney General Bell . . . that he would personally continue to approve applications under [FISA] until standards of review have been well established,” Congress enacted “a modified version of the Administration’s proposal. It provides authority for the Attorney General (or the Acting Attorney General) or the Deputy Attorney General – rather than a specially designated Assistant Attorney General – to approve applications.” The volume of FISA work has grown since 1978, and particularly since 2001, and Congress later expanded the definition of “Attorney General” to include the assistant attorney general for national security in the USA PATRIOT Improvement and Reauthorization Act of 2005.

At any rate, by saying in 1978 that the deputy attorney general will “most often” be the acting attorney general, Congress implicitly left room for another official to be the acting attorney general. Accordingly, FISA is essentially agnostic about who is or is not the “Acting Attorney General” so long as they are duly appointed consistent with the law. I am reasonably confident that this will be Justice Department’s conclusion.

 

 2. Marty Lederman has done a great job explaining the various early arguments, pro and con, as to whether Whitaker is, as a matter of statutory or constitutional law, duly appointed as the acting attorney general. He identifies two main reasons why Whitaker’s appointment may be unlawful: a statutory argument that the president improperly relied on the Federal Vacancies Reform Act (FVRA), 5 U.S.C. § 3345, when succession should instead be governed by the Department of Justice Succession Act, 28 U.S.C. § 508; and a constitutional argument that Whitaker’s appointment violates the Appointments Clause because he does not currently hold any position for which he was confirmed by the Senate. The Office of Legal Counsel (OLC) at the Justice Department has released a 20-page memo arguing that there is no statutory or constitutional problem with the appointment. Larry Tribe and John Yoo, not often in agreement, each have recently written that it is unconstitutional. For now, at least, I don’t have anything to add to these various explanations and arguments on the merits of the appointment. It is enough to say that there are serious scholars on both sides of the issues.

Even considering OLC’s long memo, however, what follows from Lederman’s summary is that the Justice Department’s National Security Division should not, unless absolutely necessary, bring any FISA applications to Whitaker. If there is even a one percent chance of a problem with Whitaker’s appointment that might make FISA applications vulnerable to challenge, they should stick to Rod Rosenstein and/or John Demers, the deputy attorney general and acting attorney general for national security, who are unquestionably able to approve the FISAs (assuming Demers has been properly designated). Those two officials are also surely far more sophisticated about FISA than is Whitaker (as I have pointed out, he has said that Marbury v. Madison was wrongly decided). Even if the risk of invalidation with respect to an application signed by Whitaker is low-probability, it could be very high-consequence, and it is wise to avoid such risks whenever possible.

 

3. It may be, however, that the risk is broader than something as direct and discrete as a FISA signed by Whittaker. One case frequently cited against the legitimacy of Whitaker’s appointment is NLRB v. S.W. General, Inc., in which the Supreme Court rejected President Obama’s appointment of the acting general counsel of the National Labor Relations Board (NLRB) because it violated the FVRA. Justice Clarence Thomas concurred to explain that “the Appointments Clause” of the Constitution also “likely prohibited [the] appointment” because the acting general counsel, a principal officer, was not confirmed by the Senate, along with other reasons (including that he had held office for three years). This view has obvious implications for Whitaker.

The Supreme Court did not address the remedy for the statutory appointments violation that it found because the NLRB (which lost below) did not raise the issue in its petition for certiorari. The underlying opinion by the U.S. Court of Appeals for the D.C. Circuit, however, did address remedies, as it ultimately voided an NLRB enforcement action concerning unfair labor practices because the complaint over those actions was brought while the acting general counsel was in office in violation of the FVRA. The reasoning that led the D.C. Circuit to this conclusion could present major problems for the Justice Department if it faces similar challenges to its actions due to Whitaker’s potentially unlawful appointment.

The FVRA prescribes a strong remedy for most violations of its requirements: there is a general rule that, as the Supreme Court explained, “actions taken in violation of the FVRA are void ab initio”—meaning that they “shall have no force and effect” and “may not be ratified” after the fact. But the statute exempts from that remedy “the General Counsel of the National Labor Relations Board,” as the D.C. Circuit noted. The NLRB argued that this made the acting general counsel’s actions merely “voidable, not void,” and presented two arguments as to why the actions should not be voided—arguments similar to those that the Justice Department might advance if Whitaker’s appointment were found to be invalid. (None of the prevailing theories against Whitaker’s appointment alleges that he was appointed in violation of the FVRA itself.) The D.C. Circuit assumed without deciding that the NLRB was correct on the effect of the FVRA exemption, but ultimately rejected both of its arguments as to why the unfair labor practices complaint should not be voided.

The D.C. Circuit rejected NLRB’s reliance on the “de facto officer” doctrine, which, as its name suggests, is a legal rule that validates exercises of apparent authority even in the absence of actual authority. Although the doctrine has “feudal” origins, in its current form it gives way when the complaining party brings a timely objection to the officer’s status and the agency or department involved has reasonable notice of the claimed defect. The court found it sufficient to satisfy those requirements that the company that was the subject of the unfair labor practices complaint, known as Southwest, had raised the appointment issue as a defense before the administrative law judge and again before the NLRB itself. (Other plaintiffs who did not timely raise such objections have not been as fortunate.) Whitaker’s appointment, however, has generated huge publicity; OLC’s memo reflects the Justice Department’s awareness of the legal challenges; and many litigants are going to raise the issue in order to preserve it for further review. The de facto officer doctrine is therefore unlikely to solve the Justice Department’s problems if Whitaker’s appointment is indeed improper.

The D.C. Circuit also rejected the NLRB’s claim that the acting general counsel’s improper appointment was harmless error. Although the disputed complaint had issued during the tenure of the acting general counsel, the NLRB itself later adopted the recommended order of the administrative law judge’s finding against Southwest based on the complaint. The NLRB therefore argued that the FVRA error was harmless by analogy to prior decisions finding that certain errors in a criminal indictment may be rendered harmless by a subsequent jury verdict of guilt.

The court rejected the analogy, noting precedent that “issues of separation of powers are structural errors that do not require a showing of prejudice because it will often be difficult or impossible for someone subject to a wrongly designed scheme to show that the design—the structure—played a causal role in his loss.” The court explained that in such cases, “Demand for a clear causal link to a party’s harm would frustrate the prophylactic goal of the separation of powers – i.e., establishing high walls and clear distinctions because low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict.” If a reviewing court finds Whitaker’s appointment improper and takes that approach to the scope of the remedy, the Justice Department may be in big trouble.

Ultimately, the D.C. Circuit did not hold that the appointment error in S.W. General was structural, but simply rejected the claim that it was harmless, refusing to accept the NLRB’s ratification argument. The court’s reasoning in support of this conclusion is particularly notable in light of Whitaker’s appointment and the responsibilities he exercises as acting attorney general (internal quotations and citations omitted):

The NLRB General Counsel is statutorily independent from the Board, and he has final authority over the issuance of ULP complaints. He essentially exercises prosecutorial discretion: he need not issue a complaint even if he believes a ULP was committed. Moreover, the General Counsel sets the enforcement priorities for the NLRB and generally supervises its lawyers. During oral argument, the Board conceded that, if the General Counsel’s office were vacant, the NLRB would not be issuing complaints. The Board nonetheless argued that, because the type of ULP charged against Southwest was not of substantial legal interest to [the] Acting General Counsel . . . that particular complaint did not require submission to the General Counsel’s Office for review beforehand. Southwest rightly points out, however, that a different General Counsel may have imposed different requirements and procedures during his tenure. Accordingly, notwithstanding the final Board order, we cannot be confident that the complaint against Southwest would have issued under an Acting General Counsel other than [the one improperly appointed by President Obama].

Much of this paragraph ought to be of concern to the Justice Department today. The unfair labor practices judgment was invalid, the D.C. Circuit found, because it was issued during the tenure of the improperly-appointed acting general counsel. It did not matter that the general counsel did not personally review or approve the complaint, because he “essentially exercises prosecutorial discretion,” he “sets the enforcement priorities” for the agency and he “generally supervises its lawyers.” It was sufficient for the court that a different acting general counsel, properly appointed, might have reviewed and disapproved the complaint.

Interested litigants can be expected to argue that this analysis applies to actions taken during the tenure or pursuant to the authority of an improperly appointed acting attorney general, whether or not the acting attorney general was personally involved in the relevant Justice Department decision or action. (Litigants have tried similar tactics in the past regarding the actions of U.S. attorneys whom they argued were improperly appointed.) At least as much as the NLRB’s general counsel, the acting attorney general exercises prosecutorial discretion, sets enforcement priorities for his agency, and generally supervises its lawyers. Indeed, as spelled out in 28 U.S.C. § 509, with very few exceptions, “[a]ll functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General.” (28 U.S.C. § § 516 and §533 contain similar provisions regarding the attorney general’s powers.) Whether or not Whitaker personally makes or takes a particular decision or action, therefore, some will say it is sufficient that a different attorney general, properly appointed, might have done so and reached the opposite decision. Smart litigants will also attempt wherever possible to provoke or trigger the personal involvement of the acting attorney general in their cases, in order to strengthen their claims for later.

Of course, if necessary, the Justice Department will respond that S.W. General is distinguishable and might also identify other arguments to limit the remedy for an improper appointment. One possible difference between S.W. General and Whitaker’s case concerns the statutory bases of power exercised by subordinates of the acting general counsel (under, for example, 29 U.S.C. §§ 153(d), 154) and the acting attorney general (under, for example, 28 U.S.C. §§ 503, 509510, and 519). Certain subordinates of the attorney general are themselves statutorily charg


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