There’s no clever opening here. Somehow, somewhere along the way, America became absurd – not mistaken – not momentarily gripped by some irrational fear or some irrational enthusiasm – just absurd. That may be Donald Trump’s doing. Philip Rucker, the White House Bureau Chief for the Washington Post, notes the current obvious absurdity:
Following this week’s midterm elections, President Trump ousted his attorney general, seized control of the Russia investigation for a partisan loyalist and suspended the credentials for a journalist he deemed too adversarial.
And that was just the first 24 hours.
After voters delivered a mixed verdict in the first national referendum of his presidency, Trump has been unbound, claiming more of a popular mandate than exists – “very close to a complete victory,” as he put it Wednesday – and moving swiftly to press some of the buttons he had previously resisted pressing.
“All of the guardrails are off and the rule of law is under an unprecedented threat,” said Joyce White Vance, who served as a U.S. attorney in Alabama during the Obama administration.
Joyce White Vance might be an alarmist, but maybe not:
For more than a year, Trump has mused privately and publicly about his desire to remove Jeff Sessions because he believed the attorney general was disloyal by recusing himself from the Russia investigation due to conflicts of interest. But Trump’s advisers, including his personal attorney Rudolph W. Giuliani, counseled him against the firing – at least until after the midterm elections.
So on the day after the election, he did it. Trump directed Sessions to resign and appointed as acting attorney general Matthew G. Whitaker, a Trump loyalist who has been publicly critical of special counsel Robert S. Mueller III’s investigation of Russian interference in the 2016 presidential election.
The move accomplishes another goal of Trump’s: transferring oversight of the Mueller investigation from Deputy Attorney General Rod J. Rosenstein, who is considered protective of the probe and has tangled with the president, to Whitaker, a Trump loyalist.
That was a “screw you” to those fond of the rule of law, if that was Trump’s intention. Rucker cites those who think that Trump has no nefarious intentions at all. He’s not nasty and evil. He’s just impulsive. There’s no plan to any of this, but Rucker notes this:
Another decision that on the surface seemed impulsive was the one by the White House to suspend the press credentials of CNN’s Jim Acosta after his testy exchange with Trump at the news conference. But Trump has long vented angrily to aides about what he considers disrespectful behavior and impertinent questions and sought to punish them. He has singled out Acosta, as well as April Ryan of American Urban Radio, among others.
As CNN’s chief White House correspondent, Acosta has long infuriated the president and his aides with his line of questioning and comportment.
Trump repeatedly has directed White House staff to ban individual reporters from covering official events or to revoke their press credentials. However, Trump’s senior aides, including White House press secretary Sarah Sanders, had previously convinced him that moves to restrict media access could backfire.
Fine, but he had already made up his mind and he pulled the trigger:
That changed Wednesday, when the White House for the first time directed the Secret Service to seize a reporter’s “hard pass,” which provides access to the White House grounds.
Sanders has defended the move and distributed a doctored video that made Acosta’s actions look more aggressive toward a White House intern. The deceptively edited footage was first shared by Paul Joseph Watson, who is known for his conspiracy-theory videos on the far-right website Infowars, which has been banned from Twitter and other social media platforms.
Joyce White Vance was alarmed:
“This is a unique moment in this administration where the president has thrown down the gauntlet,” Vance said. “We have this dangerous convergence of walking away from the rule of law and walking away from the First Amendment at the same time.”
That’s new and unique. A sitting president openly walking away from the rule of law and openly walking away from the First Amendment at the same time, not even pretending that they matter, but that’s the man:
Michael D’Antonio, a Trump biographer who has studied the president’s behavior in his personal and professional lives, said Trump’s moves this week to oust Sessions and punish Acosta are in keeping with his natural instinct to escalate feuds – and portend an even more tumultuous period of his presidency.
“His inclination is annihilation of the enemy,” D’Antonio said. “I think that he’s been dying to increase the power of his salvos against his enemies. He is a person who wants evermore powerful bombs to drop.”
That’s an absurd way to govern a nation, but Margaret Sullivan suggests fighting back:
CNN White House correspondent Jim Acosta is a smart, tough reporter. He can also be a grandstander who seems to thrive on conflict with President Trump and doesn’t always know when to stop his aggressive questioning.
But whether you like Acosta’s style, it is clear the White House crossed a bright line Wednesday when it took away Acosta’s “hard pass,” which allows him the access he needs to cover the White House.
That action amounts to punishing a member of the press for doing his job of informing the public and then creating a false pretext to justify that retaliation.
In short, this was planned:
Trump’s dislike of Acosta is well known, and he took it to a new level at a wild news conference Wednesday, calling him “a rude, terrible person” whom CNN should be ashamed of employing.
To make matters worse, Sarah Sanders lied – and circulated a misleadingly edited video to back herself up – when she claimed later that Acosta was being punished for “placing his hands on a young woman.”
A White House staff member was directed to take a mic out of Acosta’s hands; he certainly didn’t readily give it up but he was polite, and he came into physical contact with her only for a brief moment as he moved his arm to shield the mic.
That didn’t matter anymore. The rigged Infowars version of the event went viral and soon the word was that this CNN reporter had beat this young woman staffer nearly to death, and she was a sweet young thing. CNN had to be stopped! Yes, talk radio can be absurd, but Sullivan does want to fight back:
I’ve heard various suggestions about how CNN or the press corps should respond to this retaliation: There should be a boycott, a walkout, a news blackout. And I’ve read the strongly worded rebukes from the White House Correspondents’ Association, from CNN and others. But mere words aren’t enough. And a boycott or blackout not only runs counter to the core idea that the reporters are there to inform the public, but it also would cede the briefings to the worst Trump sycophants.
No, something more is called for: CNN should sue the Trump White House on First Amendment grounds. And press-rights groups, along with other media organizations, should join in to create a united and powerful front.
That’s the plan:
“This merits a forceful response, and a lawsuit would be reasonable,” said Jonathan Peters, a media-law professor who teaches at the University of Georgia Law School and is the press freedom correspondent for Columbia Journalism Review.
He told me by email that the stated rationale for revoking the pass “was clearly a sham,” and the White House should be held accountable.
“Nothing educates the government so much as a damage award,” he said.
The claim, he said, would probably take the form of an action under a statute that authorizes suits against government actors for, among other things, a deprivation of First Amendment rights.
And there’s more:
Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, told me Thursday that CNN “now has a legitimate claim that there’s been retaliation – a line has been crossed here.”
His organization “absolutely” would support such an effort, he said, and suggested a larger framing might be wise – one that includes the Trump Justice Department’s efforts, now before the D.C. Circuit Court of Appeals, to undo the $85 billion merger between AT&T and Time Warner, which is CNN’s parent company.
Sullivan is all-in:
Granted, a suit is far from a perfect solution. It wouldn’t solve Acosta’s immediate problem, and it might take months or even years to be resolved. It also feeds the kind of anti-media controversy Trump loves to generate, and which benefits him politically. And because a suit would generate news coverage, it would distract from important issues like Trump’s putting a loyalist in the office of attorney general after firing Jeff Sessions.
None of that is good. But far, far worse is letting a bullying White House get away with retaliating against the press and then lying about it.
This would be an effort to stop the absurdity, and there’s a lot of that going around:
Fox News legal commentator Andrew Napolitano on Thursday said the man President Trump named as Acting attorney general “does not qualify under the law” to take the job…
“There’s only three ways a person can become acting attorney general,” Napolitano said. “One, if you are the deputy attorney general – Rod Rosenstein – the president signs an executive order and makes you acting.”
“Two is if you are already in the Department of Justice and have a job that requires Senate confirmation and you have received confirmation,” Napolitano added. “That is not the case with Matt Whitaker because he’s the chief of staff. That does not require Senate confirmation.”
Whitaker’s most recent post was chief of staff to Sessions at the Justice Department.
“Three is a recess appointment, which is not relevant here because the Senate is not in recess,” Napolitano continued.
“So with deference and respect to what the president’s trying to do – he has every right to have whoever he wants run the Justice Department – he has chosen someone who does not qualify under the law to be the acting attorney general,” Napolitano added.
Judge Napolitano is the farthest right of the far-right legal experts on television, but he did teach Constitution Law at Seaton Hall – a friend who had him there for that class said he was a by-the-books guy – so he knows what is absurd and what isn’t. Only the Fox News panel was stunned, and it was the same on CNN:
CNN legal analyst Jeffrey Toobin on Thursday questioned the qualifications of President Trump’s pick for acting attorney general, arguing that he was chosen largely because of his past comments about special counsel Robert Mueller.
On “New Day” Toobin exchanged thoughts with former independent counsel Kenneth Starr about Trump’s decision to appoint Matthew Whitaker, chief of staff to Jeff Sessions, as head of the Justice Department on a temporary basis. Sessions resigned Wednesday as attorney general at Trump’s request.
“You know the Department of Justice. You know the kind of people who are named attorney general of the United States – senators, judges,” Toobin said. “What about naming someone, frankly, this obscure and this unqualified just because he’s been critical of the Mueller investigation. What do you think about that choice?”
Starr called Toobin’s characterization “a little bit unfair,” while noting that Deputy Attorney General Rod Rosenstein would have been a “natural” choice to replace Sessions.
Ken Starr said the guy was only “a little bit” obscure and unqualified. That’s damning with the faintest of praise, but the main argument against this absurdity was this:
The husband of White House counselor Kellyanne Conway is arguing that the President’s decision to instate Matthew Whitaker as acting attorney general is “unconstitutional” and “illegal.”
George Conway, Kellyanne Conway’s husband, slammed the move in an op-ed published Thursday in the New York Times.
“A principal officer must be confirmed by the Senate. And that has a very significant consequence today. It means that Mr. Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal,” Conway argued in the op-ed, co-written with Neal Katyal, former acting solicitor general under former President Barack Obama.
They added, “And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.”
In fact, the whole thing is absurd:
Conway and Katyal argued that the appointment of Whitaker to the top job at the DOJ “defies one of the explicit checks and balances set out in the Constitution.” They pointed to the Constitution’s Appointments Clause in Article II, Section 2, Clause 2 to argue that Whitaker, now as a principal officer, should have undergone a Senate confirmation process to be placed in the role of acting attorney general, and that otherwise it’s “unconstitutional.”
“For the President to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document,” the two lawyers wrote.
Conway and Katyal argue the other reason Whitaker’s appointment is unconstitutional is that the public is entitled to the assurance that he “has the character and ability to evenhandedly enforce the law in a position of such grave responsibility,” which they believe a Senate confirmation process would ensure.
It would be nice if the guy had the character and ability to evenhandedly enforce the law but Ruth Marcus notes this:
Matthew G. Whitaker, installed in the job by President Trump to replace Jeff Sessions, was asked in 2014, during an ill-fated run in the Republican senatorial primary in Iowa, about the worst decisions in the Supreme Court’s history. Whitaker’s answer, to an Iowa blog called Caffeinated Thoughts, was chilling.
“There are so many,” he replied. “I would start with the idea of Marbury v. Madison. That’s probably a good place to start and the way it’s looked at the Supreme Court as the final arbiter of constitutional issues. We’ll move forward from there. All New Deal cases that were expansive of the federal government – those would be bad. Then all the way up to the Affordable Care Act and the individual mandate.”
Marcus is not impressed:
Reasonable people can differ over the constitutionality of the Affordable Care Act. Maybe there’s some space to debate the New Deal-era cases that cemented the authority of the regulatory state. But Marbury? This is lunacy.
Decided in 1803, at the dawn of the new republic, Marbury v. Madison is the foundational case of American constitutional law. It represents Chief Justice John Marshall’s declaration that the Supreme Court possesses the ultimate power to interpret the Constitution and determine the legitimacy of acts of Congress.
In Marshall’s famous words, “it is emphatically the duty of the judicial department to say what the law is.” The untested new Constitution provided that the Supreme Court possessed the “judicial Power of the United States,” but it did not define what that power entailed.
“With one judgment Marshall would chisel judicial review into the American system,” Cliff Sloan and David McKean explain in their book, “The Great Decision.” The ruling “asserting clearly and unequivocally that the Supreme Court did indeed possess the power to strike down an Act of Congress as unconstitutional laid the foundation for the American rule of law.”
It took some time to make the text of the Constitution operational. In 1803 the operation of the “three co-equal branches of the government” was finally worked out. Whitaker thinks Marbury v. Madison was wrongly decided. The judicial branch is a “lesser” branch. No one has to listen to them, but wait, there’s more:
That’s not the only troubling question about Whitaker. During a 2014 Senate debate sponsored by a conservative Christian organization, he said that in helping confirm judges, “I’d like to see things like their worldview, what informs them. Are they people of faith? Do they have a biblical view of justice? Which I think is very important.”
At that point, the moderator interjected: “Levitical or New Testament?”
“New Testament,” Whitaker affirmed. “And what I know is as long as they have that worldview, that they’ll be a good judge. And if they have a secular worldview, then I’m going to be very concerned about how they judge.”
Marcus is the one who’s alarmed now:
Marbury was wrong. Religious tests for judges. If you thought the big worry about Whitaker was how he would handle special counsel Robert Mueller that might be just the beginning.
Charlie Savage adds more detail:
Laurence H. Tribe, a constitutional law professor at Harvard Law School, said that Mr. Whitaker’s expressed views of the Constitution and the role of the courts “are extreme and the overall picture he presents would have virtually no scholarly support” and would be “destabilizing” to society if he used the power of the attorney general to advance them.
Simultaneously criticizing the Supreme Court’s power of judicial review while criticizing cases where it declined to strike down laws regulating economic and health insurance matters was a sign of an “internally contradictory” and “ignorant” philosophy, Mr. Tribe said…
“He seems to think much of the fabric of federal law, that is part of our ordinary lives, violates the Constitution of the United States, to which he is evidently going to take an oath,” Mr. Tribe said.
That is absurd and people do know that:
Congressional aides, journalists and other observers scoured his record after Mr. Trump fired Attorney General Jeff Sessions on Wednesday and replaced him with Mr. Whitaker, instantly raising questions about whether the president wanted a loyalist in charge at the Justice Department with the power to end the Russia investigation.
Groups throughout the nation marched on Thursday to support the inquiry of Robert S. Mueller III, the special counsel, and to protest Mr. Whitaker’s appointment. Thousands demonstrated in dozens of cities, including in Washington, Philadelphia, Omaha and Salt Lake City.
In New York, about 4,000 people marched from Times Square to Union Square, the police said. Protesters held signs and chanted “Trump is not above the law.” On Twitter, #ProtectMueller was trending.
The idea is to protect Mueller from this:
Past statements suggest that Mr. Whitaker has already made up his mind that the investigation will fail to show that Mr. Trump or his advisers aided Russia’s disruption.
“The truth is there was no collusion with the Russians and the Trump campaign,” Mr. Whitaker said in an interview on “The Wilkow Majority,” a conservative political talk radio show, in summer 2017. His remarks were reported earlier by The Daily Beast.
He also argued last year that the president could not have obstructed justice by asking the FBI director, James B. Comey, to end an investigation into his first national security adviser, a broad notion of executive power that Mr. Trump’s lawyers have also embraced. Mr. Whitaker dismissed the outcry over Mr. Trump’s request as overkill during a radio interview in June 2017 on the conservative “David Webb Show.”
“This hyperventilation of what we see here is just, I don’t think, sustainable based on these facts,” he said in comments reported earlier by Mother Jones. And he once said Mr. Mueller’s appointment “smells a little fishy,” according to a radio segment unearthed by CNN.
And this is the man that Donald Trump wants to supervise the investigation into what really happened. Of course that’s absurd, and then there’s this:
Other aspects of Mr. Whitaker’s record also came under sharper scrutiny on Thursday as Mr. Whitaker huddled with Justice Department officials in a lengthy briefing about its major cases and other activities.
Before joining the Trump administration last fall, Mr. Whitaker sat on the advisory board of a patent marketing company in Florida that was shut down and ordered this year to pay consumers nearly $26 million. The Federal Trade Commission accused the company, World Patent Marketing, of bilking thousands of customers who believed they were receiving patents.
He helped run a scam and got caught. Oops. But think of Trump University. On November 18, 2016, Donald Trump agreed to pay twenty-five million dollars to settle the two class-action lawsuits here in California and one in New York – because Trump University had been a scam too. Former students can now get a refund of up to ninety percent of the money they spent on those totally useless Trump University courses.
So, when this is all over, when Trump is no longer president, can the American public get a refund?
Why not? Somehow, somewhere along the way, America did become absurd – not mistaken – not momentarily gripped by some irrational fear or some irrational enthusiasm – just absurd. Donald Trump does want evermore powerful bombs to drop. American will want a refund.