Nov 9, 2018

Momentum builds against acting Attorney General Matt Whitaker

Matt Whitaker. Photo: Chip Somodevilla/Getty Images

Matt Whitaker has been acting attorney general for just one full day but he's already under extreme pressure.

Why it matters: President Trump, who shocked even some of his senior most staff with the hasty timing of his firing of Jeff Sessions, threw Whitaker into an immediate political and legal storm. The White House expected opposition from Democrats but the blowback is widening and now includes a growing body of conservative legal opinion.

  • Within hours of his appointment on Wednesday, Congressional Democrats began calling on Whitaker, a Trump loyalist, to recuse himself from overseeing the Mueller investigation because of comments about the Mueller probe that Whitaker made last year before he became Sessions' chief of staff.
  • Whitaker wrote last year that the Mueller investigation was dangerously close to becoming a "witch hunt," and during a TV appearance reportedly imagined a scenario in which the "attorney general doesn't fire Bob Mueller, but he just reduces his budget to so low that his investigation grinds to almost a halt."
  • The N.Y. Times fronts a story by Charlie Savage, "At Justice Dept., A Boss Who Held Courts in Disdain": Whitaker "once espoused the view that the courts 'are supposed to be the inferior branch' and criticized the Supreme Court’s power to review legislative and executive acts and declare them unconstitutional."

A new problem emerged yesterday. Prominent attorneys Neal Katyal and George Conway wrote a New York Times op-ed in which they argue Trump's appointment of Whitaker is illegal because the Constitution dictates that anyone serving in a "principal role" must be confirmed by the Senate.

  • “Conway and Katyal raise valid constitutional concerns," said John B. Bellinger III, a partner at Arnold & Porter, who previously served as a senior White House lawyer and as the State Department Legal Adviser in the George W. Bush Administration." 
  • "The problem is not only that Mr. Whitaker does not already hold a Senate-confirmed position, it's not even clear that he qualifies as an Executive branch 'officer' who may be asked by the President to assume the duties of Acting Attorney General because he was not an 'officer' exercising significant authority in his position as Chief of Staff."
  • "In addition to politicizing the Department of Justice, the President is running a serious risk that any formal actions taken by Mr. Whitaker could be subject to legal challenge and declared invalid." 
  • "It would have been less controversial," Bellinger told Axios, "and less legally risky if the President had named the Deputy Attorney General, or Solicitor General, or an Assistant Attorney General as Acting Attorney General."

Trump's case: There are respected lawyers arguing that Trump is well within his legal rights to appoint Whitaker as acting attorney general, as Axios' Stef Kight and Alayna Treene report. (See their arguments.)

  • Justice Department spokeswoman Sarah Isgur Flores emailed: "The VRA [Vacancies Reform Act] was passed in 1998 and Acting Attorney General Whitaker's appointment was made pursuant to the procedures approved by Congress."

Be smart: Trump likes and trusts Whitaker, and a source close to the president told Axios he could easily imagine Trump appointing Whitaker as Sessions' permanent replacement.

  • But Whitaker's path to Senate confirmation is filled with obstacles.

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New Zealand sets sights on coronavirus elimination after 2 weeks of lockdown

Prime Minister Jacinda Ardern gives a coronavirus media update at the New Zealand Parliament in Wellington. Photo: Mark Mitchell - Pool/Getty Images

AUCKLAND -- New Zealand has flattened the curve of novel coronavirus cases after two weeks of lockdown and the next phase is to "squash it," Professor Shaun Hendy, who heads a scientific body advising the government on COVID-19, told Axios.

Why it matters: The country imposed 14 days ago some of the toughest restrictions in the world in response to the pandemic, despite confirming only 102 cases and no deaths at the time.

Go deeperArrow48 mins ago - Health

Coronavirus dashboard

Illustration: Sarah Grillo/Axios

  1. Global: Total confirmed cases as of 2:30 a.m. ET: 1,431,375 — Total deaths: 82,145 — Total recoveries: 301,543Map.
  2. U.S.: Total confirmed cases as of 2:30 a.m. ET: 399,886 — Total deaths: 12,910 — Total recoveries: 22,461Map.
  3. Federal government latest: Acting Navy secretary resigns over handling of virus-infected ship — Trump removes watchdog overseeing rollout of $2 trillion coronavirus bill — Trump said he "didn't see" memos from his trade adviser Peter Navarro warning that the crisis could kill more than half a million Americans.
  4. States latest: California Gov. Gavin Newsom is confident that more than 200 million masks will be delivered to the state "at a monthly basis starting in the next few weeks."
  5. Business latest: America's food heroes in times of the coronavirus crisis. Even when the economy comes back to life, huge questions for airlines will remain.
  6. World updates: China reopens Wuhan after 10-week coronavirus lockdown.
  7. 2020 latest: Polls for Wisconsin's primary elections closed at 9 p.m. ET Tuesday, but results won't be released until April 13. Thousands of residents cast ballots in person.
  8. 1 Olympics thing: About 6,500 athletes who qualified for the Tokyo Games will keep their spots in 2021.
  9. What should I do? Pets, moving and personal healthAnswers about the virus from Axios expertsWhat to know about social distancingQ&A: Minimizing your coronavirus risk.
  10. Other resources: CDC on how to avoid the virus, what to do if you get it.

Subscribe to Mike Allen's Axios AM to follow our coronavirus coverage each morning from your inbox.

Tariff worries hit record high amid coronavirus outbreak

Data: CivicScience, margin of error ±1 percentage points; Chart: Axios Visuals

Concern about President Trump's tariffs on U.S imports grew to record high levels among Americans last month, particularly as more lost their jobs and concern about the novel coronavirus increased.

Driving the news: About seven in 10 people said they were at least somewhat concerned about tariffs in March, according to the latest survey from CivicScience provided first to Axios.