Whit Sessions gone, what will become of the Mueller probe and its findings to date?

Great Debates
1

So Keebler Elf, racist pig, and U.S. Attorney General Jeff Sessions has just been fired by Dear Leader.

Naturally, this brings up the question of the Mueller probe. I think it’s safe to assume that Mueller will be fired between now and Jan. 3. Probably very soon. So, what does this mean?

Can Mueller keep all his files in a big safe somewhere and hand them over to the congressional investigators once the new Dem house is sworn in on Jan. 3?

Can Whitaker demand all of Mueller’s findings to date and simply make them go away? Maybe he’ll claim that there was Nothing To See Here, that it was all a huge waste of taxpayer money because Democrats=Bad, and the whole Mueller investigation will be lost to history like a fart in a hurricane.

Someone in some other thread that I’m far too lazy to go search for speculated that perhaps the new Dem house can open investigations into Dear Leader’s shady taxes or violations of the emoluments clause or whatever, and hire Mueller to lead the investigation. Is this a likely possibility or just an Anti-Trump wet dream? After all Mueller is a Republican and frankly, after two years of full-time investigations, I’m wondering if the well is about dry. Of course, Mueller famously keeps his cards close to his chest so nobody really knows what kind of dirt he has — or doesn’t have — of Trump and his cronies.
Personally, I have a sinking suspicion that Mueller will be fired and whatever findings he has so far will just… disappear into some legal black hole. Maybe there will be a mysterious warehouse fire. Maybe all the hard drives that has the results of the investigation to date will have been mysteriously compromised and no data can be accessed. Meanwhile Trump will blame Democrats for wasting the nation’s precious treasure then nuke Ouagadougou or someplace in attempt to get the nation to forget about Mueller. And so, other than putting some very deserving people behind bars, the whole thing will have been for naught because in the end the big fish will have got away.

2

IANAL, but I’ve heard that Mueller could use the inherent authority of the grand jury to release his findings outside of the Department of Justice (such as to Congress).

3

Something tells me Mueller has thought ahead for just such an eventuality and has contingencies in place. What they might be I can’t say, but he’s clearly shrewd and methodical.
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4

The more prudent move, in my opinion, would be to use the authority of the new AG to muzzle Mueller – not fire him, but require that any move he makes be reviewed and approved first. For example, let’s imagine that Mueller believes he has enough evidence to ask the grand jury to indict Don Jr.

The new AG could order Mueller to submit that evidence to him first, and then decide that, nope, it’s insufficient, or otherwise unacceptable under DoJ guidelines.

Also on the table: the new AG might not have to be confirmed by the Senate. Trump can legally appoint someone else who’s already gotten Senate approval to the post, such as Alex Acosta, currently the Secretary of Labor.

Sweet dreams, kids.

5

Could any evidence so-gathered be used eventually, possibly years later, for another prosecution?

6

What is the argument to support this theory?

: He shall have Power, by and with the Advice and Consent of the Senate****, to make Treaties, provided two thirds of the Senators present concur;** and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint **Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.Is the claim based on the idea that he is appointing a person, not filling an office? If that were true, why would the Chief Justice have to be re-confirmed by the Senate if the person appointed is already a sitting justice? (E.g., William Rehnquist)

7

Prudent or not, what do you predict will actually happen? Do you think your scenario is likely?

8

Because an acting officer is an inferior officer within the meaning of art. II, § 2, cl. 2.

The Vacancies Reform Act (5 USC § 3345) permits the President to direct a person serving in any other advice and consent position to serve as the acting officer of an advice and consent position for up to 210 days before a nomination is made, and indefinitely thereafter as long as a nomination to that position “is pending in the Senate."

So not to pick on Mr. Acosta, but the following path is totally legal: Trump asks Acosta this evening to serve as Acting AG. The 210 day clock starts the day the position becomes vacant by death, resignation, or “other absence.” At the end of that period, the President must have a nomination in front of the Senate. But Acosta could continue to serve until January 3rd, 2021, if Trump nominates him or anyone else by June 5th, 2019, and the Senate takes no action. Even if the Senate rejects the first nominee, Acosta could continue to serve during the pendency of a SECOND nomination.

The answer to your second question is: the Act and the underlying concept does not extend to Art III judges, though.

9

Potentially, although there may be statute of limitations issues.

10

Trump was stymied by Sessions’ decision to act ethically. That was as foreign to him as a goat speaking Greek. SO I hesitate to predict what will actually happen.

11

I think the appointment of a right wing talking head with ethics issues that Trump saw on TV and twitter to take over as interim attorney general is a good indication of what is likely to happen. It will be up to Republicans in the Senate (Hah! As if), or the Democrats in the House to hold Trump accountable is Mueller is fired or “reined in” and resigns.

12

Does Whitaker meet that criteria? Was confirmed by the Senate in 2004 for a U.S attorney spot, but was not a leadership position in the justice dept. I’ve seen rumblings that he doesn’t meet the threshold for a vacancy appt, but was interested in your take.

13

I’m hanging on to this with my shredded fingernails.

14

If Trump is successful in replacing his Attorney General with a “yes-man” who will end the Mueller investigation then, in essence, Trump will be a dictator who is above all law because he can just say, “No, I will not allow you to investigate me.” I don’t how it can be seen in any other way.

15

I’d say more he’s above THAT law. The Congress can impeach and convict him. In fact, the Congress can pass a new Independent Counsel Act over his veto, if they wish.

So, no, not all law.

16

As I’ve noted in other threads, to some extent I’m less worried about the effects on Mueller as I am of having a DOJ that will actively go after anyone that Trump deems a threat.

At the end of the day, everyone has broken some law or another, if you hunt hard enough.

17

I don’t think there is any ambiguity. 5 USC § 3345 defines three classes of government employees eligible to temporarily perform the functions and duties of a vacant “advice and consent,” office. The first two are iffy, perhaps, but Whitaker clearly qualifies under the third.

Whitaker served as Chief of Staff to AG Sessions immediately prior to Sessions’ resignation, and the default and automatic first rule is that when an “advice and consent,” office becomes vacant, “the first assistant to the office,” becomes the acting officer. See §3345(a)(1).

The term “first assistant to the office,” is not defined in §3345, and perhaps the administration might argue that the Chief of Staff is the “first assistant.” But this would seem to be scuttled by 28 USC § 508, which provides specifically that for the Department of Justice, “…[F]or the purpose of section 3345 of title 5 the Deputy Attorney General is the first assistant to the Attorney General.”

The second possibility is that the President may ask any other “advice and consent,” officer to serve. The Senate approved Whitaker as a US Attorney, but I agree there’s a time and function argument to be made there. Fortunately for Whitaker, if not for the rest of us, the third category is one under which he clearly qualifies.

The third rule: the President can select a senior “officer or employee,” of the same executive agency, if that employee served in that agency for at least 90 days during the year preceding the vacancy and is paid at a rate equivalent to at least a GS-15 on the federal pay scale. §3345(a)(3).

That manifestly covers Whitaker, who has served as Chief of Staff since September 22, 2017, a position that’s on the ES scale, and thus above a GS-15.

18

Why is Mueller so important to either side? If he’s fired, wouldn’t some new investigator just step in and do the same thing?

19

Mueller is in the process of preparing his final report on the Russia probe, multiple sources tell CNN:

20

Politico: Trump delivers first Dem probe on a silver platter.