Office Of Legal Counsel Tells President What He Wants To Hear

Other things that the Office of Legal Counsel will justify if you ask them to.

Today, the Department of Justice’s Office of Legal Counsel released a 20-page memo offering legal justification for Donald Trump’s illegal appointment of Matt Whitaker as Acting Attorney General.

In pertinent part, the memo states:

Thus, even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith. Instead, a defendant is guilty of torture only if he acts with the express purpose of inflicting severe pain or suffering on a person within his custody or physical control…

We believe that a defense of necessity could be raised, under the current circumstances, to an allegation of a Section 2340A violation. Often referred to as the “choice of evils” defense, necessity has been defined as fellows:

Conduct that the actor believes to he necessary to avoid a harm or evil to himself or to another is justifiable.

Oh wait, no. That’s Jay Bybee — then assistant Attorney General in the Office of Legal Counsel — justifying ACTUAL TORTURE from his position at the Department of Justice.

Things worked out for Bybee, by the way. He’s now a judge on the Ninth Circuit Court of Appeals. I’m sure that Steven Engel, who wrote the latest pro-Trump tripe coming out of the Office of Legal Counsel, expects a similar reward once his service to American Hitler is over.

The Department of Justice released a 20-page memo, written by Engel, which justifies Trump’s appointment of Matthew Whitaker as Acting Attorney General, despite the fact that Whitaker was not confirmed by the Senate.

Predictably, most mainstream media organizations have dutifully reported on this memo as if it contained some kind of binding or even lucid legal principle. Here’s the open to Engel’s memo:

Mr. Whitaker’s designation as Acting Attorney General accords with the plain terms of the Vacancies Reform Act, because he had been serving in the Department of Justice at a sufficiently senior pay level for over a year. See id. 3345(a)(3). The Department’s organic statute provides that the Deputy Attorney General (or others) may be Acting Attorney General in the case of a vacancy. See 28 U.S.C. 508. But that statute does not displace the President’s authority to use the Vacancies Reform Act as an alternative. As we have previously recognized, the President may use the Vacancies Reform Act to depart from the succession order specified under section 508. See Authority of the President to Name an Acting Attorney General, 31 Op. O.L.C. 208 (2007) (2007 Acting Attorney General).

We also advised that Mr. Whitaker’s designation would be consistent with the Appointments Clause of the US. Constitution, which requires the President to obtain the Advice and Consent of the Senate, before appointing a principal officer of the United States. US. Const. art. 11, 2, cl. 2. Although an Attorney General is a principal officer requiring Senate confirmation, someone who temporarily performs his duties is not.

Look, this is the president’s best argument, and once you accept that the Office of Legal Counsel works for the President (and not, say, for the American people), it’s not surprising to see the OLC make this argument.

But just because it’s the president’s best argument doesn’t mean it’s a good argument. I will knock down this paper’s thin arguments so you don’t have to:

1. Whitaker’s appointment in fact does violate the “plain meaning” of the Vacancies Reform Act — and if that isn’t immediately clear to you, then maybe you are learning a little bit of why it’s always bulls**t when originalists talk about the “plain meaning” of any goddamned thing.

The Vacancies Act PLAINLY requires the president to replace a Senate-confirmed official with another official who has been confirmed by the Senate to a similar position. It’s a joke far outside the text of the statute, to use Whitaker’s 2004 confirmation as U.S. Attorney, an officer who nominally reports to the Attorney General, to make a 2018 appointment to the superior office of Acting Attorney General.

2. The Vacancies Reform Act probably shouldn’t even apply, because Section 508 specifies the succession plan for the Department of Justice. It’s a well-established legal principle that a more specific statute supersedes a more general one. Here, Section 508 specifies that the Deputy Attorney General replace the Attorney General until a new Attorney General can be confirmed. This isn’t hard.

3. And if you don’t like the Vacancies Reform Act or Section 508, then Whitaker’s appointment exceeds the president’s authority under the Appointments Clause. That’s not even an opinion I agree with, but it happens to be the opinion of the United States Supreme Court in NLRB v. SW GENERAL, INC. So if you expect Republican judges to show any modicum of intellectual consistency (I do not), the Whitaker appointment is unconstitutional in addition to being illegal.

PLEASE SHARE WITH YOUR FRIENDS WHO ONLY GET THEIR NEWS FROM FACEBOOK. The president’s appointment of Whitaker is illegal and the Office of Torture Manifestos writing a justification for it means nothing.

And TRY to remember this when Steven Engel is up for an appointment to a circuit court and Chuck Schumer refuses to fight his confirmation because Mitch McConnell promises to let Chuck eat the leftovers at a FedSoc luncheon.

Document: Justice Department Office of Legal Counsel Memo on Designating an Acting Attorney General [Lawfare]

---

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

Office Of Legal Counsel Tells President What He Wants To Hear curated from Above the Law