Jeff Sessions is out

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_Water Dog
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Re: Jeff Sessions is out

Post by _Water Dog »

Kevin Graham wrote:No, that was already covered by Judge Napolitano on FOX News, who said this restriction applied to everyone, even interim appointments.

ETA: The Vacancies Act only applies if he quit, but Sessions already said he was asked to resign, meaning he was fired. On top of this there is the issue that Mr. Whitaker has also repeatedly criticized the Mueller investigation indicating that his taking over control of that investigation from Rod Rosenstein — which has just occurred — may be a direct ethics violation under DOJ rules.

Well, it seems there is disagreement then, isn't there. Ohs well, what's new under the sun? And, being asked to resign isn't the same as being fired. If that is a technical difference that actually matters in this case, it would seem the technicality works against you because "asked to" or not, Sessions quit, technically.
_Kevin Graham
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Re: Jeff Sessions is out

Post by _Kevin Graham »

Water Dog wrote:Well, it seems there is disagreement then, isn't there. Ohs well, what's new under the sun? And, being asked to resign isn't the same as being fired. If that is a technical difference that actually matters in this case, it would seem the technicality works against you because "asked to" or not, Sessions quit, technically.


When you're asked to submit a resignation, you're being fired and Sessions said that is precisely what happened.

Resignation vs. termination

There’s a final reason the FVRA might not apply in this situation. The law permits the president to temporarily replace an executive branch officer with a long-serving official in the agency or an individual who has already been confirmed by the Senate for another position. But this rule only kicks in when the officer “dies, resigns, or is otherwise unable to perform the functions and duties of the office.”

Law professor Steve Vladeck has made a compelling case that the FVRA is not triggered when an official is fired. After all, the plain language of the statute describes three specific scenarios—death, resignation, or inability to perform one’s duties. It conspicuously omits termination. There is thus a plausible argument that a president cannot invoke the FVRA to fill a vacancy after firing an officeholder.

The application of this theory here is tricky. It’s obvious that, practically speaking, Trump fired Sessions. His resignation letter begins: “At your request, I am submitting my resignation.” In the law there’s a principle called “constructive discharge,” which applies when an employee technically quit, but felt she had no choice but to do so. Under the Civil Rights Act, for instance, an employee may sue for constructive discharge if she quit because she faced a hostile work environment due to her sex. The paperwork might say she resigned, but she can still sue for unlawful termination.

Former prosecutor Renato Mariotti and Harvard Law professor Larry Tribe have both raised the possibility that Sessions faced constructive discharge. And it is abundantly clear that he did not wish to step down. The language of his letter alone—“at your request”—indicates as much. Moreover, administration officials told CNN that Sessions asked to stay through Friday, but was denied. A court could conclude from these facts that Sessions’ “resignation” was not the kind of voluntary departure envisioned by the FVRA, but rather a constructive discharge. As a result, the FVRA would not apply, leaving Section 508 to fill the void—and once again, Rosenstein would step into Sessions’ role.

It is not unusual for litigants to challenge the authority of a federal agency or official to punish them. In June, the Supreme Court ruled that an administrative law judge was not properly appointed to the Securities and Exchange Commission; four years ago, it held that a member of the National Labor Relations Board was unlawfully appointed. As Thomas wrote in 2017, the judiciary cannot ignore the law’s “check on executive power for the sake of administrative convenience or efficiency.” If Whitaker can’t legally serve as the chief law enforcement officer of the United States government, it’s the duty of the courts to toss him out.
_Doctor CamNC4Me
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Re: Jeff Sessions is out

Post by _Doctor CamNC4Me »

Is Sessions going to sue?

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_moksha
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Re: Jeff Sessions is out

Post by _moksha »

Obviously, Trump made that specific appointment to dismantle the Special Counsel's investigation.

Let's be thankful Trump did not try to appoint Judge Jeanine Pirro, although if Justice Ginsberg does not fully recover from her broken ribs, then Pirro will be on that potential list.

On the downside, the stage is set for a Presidential crisis.
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_Chap
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Re: Jeff Sessions is out

Post by _Chap »

Katyal and Conway argue that the appointment of Whitaker is improper, based on a provision of the Constitution,

McCarthy argues that it is not, based on a piece of legislation.

But is it not the case in US law that legislation cannot enable one to by-pass the Constitution? If however it can in this case, please explain how.
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_Doctor CamNC4Me
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Re: Jeff Sessions is out

Post by _Doctor CamNC4Me »

This CNN link touches on the fact that Mueller has handed over a list of questions to Trump and his team of lawyers:

https://www.cnn.com/2018/11/08/politics ... index.html

It's not really worth clicking on, but if there are savvier posters I'd love to know if there's an updated list of questions outside of the one that Fox News published:

https://www.foxnews.com/politics/muelle ... -full-list

I can't imagine Mueller sharing a copy of his report with the President’s lawyers and Whitaker before he gets answers to these questions, whatever they are right now.

- Doc
In the face of madness, rationality has no power - Xiao Wang, US historiographer, 2287 AD.

Every record...falsified, every book rewritten...every statue...has been renamed or torn down, every date...altered...the process is continuing...minute by minute. History has stopped. Nothing exists except an endless present in which the Ideology is always right.
_Water Dog
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Re: Jeff Sessions is out

Post by _Water Dog »

A much more eloquently worded take that reflects my opinion on supposed Mueller questions. I find it interesting that we even know about these questions. Why would Mueller leak those? Well, that's obvious isn't it? To leverage the media to pressure a response that he has no power to compel. At any rate, Trump is not obliged to answer any questions nor should he.

The questions indicate that, after a year of his own investigation and two years of FBI investigation, the prosecutor lacks evidence of a crime. Yet he seeks to probe the chief executive’s motives and thought processes regarding exercises of presidential power that were lawful, regardless of one’s view of their wisdom.

If Bob Mueller wants that kind of control over the executive branch, he should run for president. Otherwise, he is an inferior executive official who has been given a limited license — ultimately, by the chief executive — to investigate crime. If he doesn’t have an obvious crime, he has no business inventing one, much less probing his superior’s judgment. He should stand down.


https://www.nationalreview.com/2018/05/ ... interview/

Exactly this. Since when do we launch fishing expeditions? Probable cause? I always thought investigations were meant to follow crimes. What is the crime? What is the basis for the investigation? Is there a dead body? Is something missing, that was stolen? There should be evidence of some crime before one goes hunting for the cause of it. What is the crime? Butthurt democrats that don't like the results of an election? Butthurt bureaucrats that don't like the president firing Comey?

Trump is not obliged to let Mueller in on his thought process and have his presidential decisions subject to his approval.
_Kevin Graham
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Re: Jeff Sessions is out

Post by _Kevin Graham »

Who cares if Trump is questioned, he's just going to lie anyway.

If Mueller is fired, the House subpoena's him and he spills the beans in public.
_Res Ipsa
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Re: Jeff Sessions is out

Post by _Res Ipsa »

Water Dog wrote:A much more eloquently worded take that reflects my opinion on supposed Mueller questions. I find it interesting that we even know about these questions. Why would Mueller leak those? Well, that's obvious isn't it? To leverage the media to pressure a response that he has no power to compel. At any rate, Trump is not obliged to answer any questions nor should he.

The questions indicate that, after a year of his own investigation and two years of FBI investigation, the prosecutor lacks evidence of a crime. Yet he seeks to probe the chief executive’s motives and thought processes regarding exercises of presidential power that were lawful, regardless of one’s view of their wisdom.

If Bob Mueller wants that kind of control over the executive branch, he should run for president. Otherwise, he is an inferior executive official who has been given a limited license — ultimately, by the chief executive — to investigate crime. If he doesn’t have an obvious crime, he has no business inventing one, much less probing his superior’s judgment. He should stand down.


https://www.nationalreview.com/2018/05/ ... interview/

Exactly this. Since when do we launch fishing expeditions? Probable cause? I always thought investigations were meant to follow crimes. What is the crime? What is the basis for the investigation? Is there a dead body? Is something missing, that was stolen? There should be evidence of some crime before one goes hunting for the cause of it. What is the crime? Butthurt democrats that don't like the results of an election? Butthurt bureaucrats that don't like the president firing Comey?

Trump is not obliged to let Mueller in on his thought process and have his presidential decisions subject to his approval.


I don't know how you could expect any thinking person to swallow this. Of course we have crimes -- go look at the indictment of hostile foreign agents who attempted to interfere with our elections. On top of that, the DNC was the victim of theft. So, the notion that Mueller lacks "crimes" to investigate is rubbish. Mueller's investigation, started when Republicans held all three branches of government and a Republican attorney general recused himself, has nothing to do with "butthurt." It has to do with serious crimes involving the security of our elections -- something that anyone who purports to love their country should support.
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_MeDotOrg
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Re: Jeff Sessions is out

Post by _MeDotOrg »

The independent council for the Whitewater investigation was appointed in January 1994. In 1998, four years later, Ken Starr applies for and is granted a request to expand the inquiry into the Clinton-Lewinsky affair. Starr's report was released to Congress in September of 1998, over 4½ years after the investigation began.

So 4 years after the investigation began, Janet Reno approved an expansion of the investigation into her boss. Not exactly Roy Cohn type of AG Trump would prefer, but exactly the way an Attorney General is supposed to behave. I doubt of Whittaker is up to the task.
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