Can Congress impeach the Attorney General?

[kentuck]

I know that the Republicans attempted to impeach Rod Rosenstein, the acting Attorney General.

If Whitaker is passing info to Donald Trump, a target in a criminal investigation, that would surely be a crime worthy of impeachment, one might think?

Trump tweeted about the "inner workings" of Mueller investigation this morning, the first time he has used that language in any of his tweets.

Would Whitaker be so foolish?

[Eyeball_Kid]

1. I'll go with a strong YES.

[DetroitLegalBeagle]

2. Yes

Still requires 67 votes in the Senate for removal.

[hlthe2b]

3. Well, he'd be subject to obstruction charges, for sure.

Mueller is watching, I'm sure

[Dan]

4. With the Senate under the control of the GOP

impeachment may not happen. (Now, this may change as we get closer to the 2020 election and the GOP Senators realize that they might lose their places at the table; they won't grow a spine, but rather will act in their self interest, not for the nation, but rather for their political survival).

I would be more inclined to believe that the Attorney General - acting in bad faith to support Trump, may be subject to criminal charges once it is revealed. Note the Nixon era.

[libdem4life]

26. ..or until their constituents get sick of the scandalous drama...it could happen.

I keep seeing Nixon in that rear view mirror...objects may be closer than they appear???

[bluestarone]

5. WE are just ONE BLUE WAVE away from

Impeaching the WHOLE fucking lot of them!!!!!!!!!!!!!!!!!!!!!

[MineralMan]

6. It can, yes.

It won't, no.

Congress can impeach and remove any federal official. That is a power it rarely, rarely uses, though. With a divided Congress, it's a very unlikely process.

[appleannie1943]

7. That is just one of the reasons he is where he is.

[maxsolomon]

8. Can his appointment be challenged in court?

And if so, why hasn't it been?

[kentuck]

10. That seems to be the best route to take...

...thru the courts.

If this Supreme Court is as incompetent and partisan as many people think, then it would be best to know sooner rather than later, in my opinion.

Take 'em to Court!

on edit:
(It might do the people well to know which of their Senators would support such an action by an acting Attorney General? It might be best to put them on record? Surely they would enjoy defending such an action in their next election?)

[marylandblue]

11. It's been challenged in court already

The State of Maryland sued Jeff Sessions in his official capacity as AG. Now they claim Whitaker's appointment is unconstitutional, so they need the court to say who the real Acting AG is, so they can continue the lawsuit against that person.

[kentuck]

12. Can someone else also sue?

There should be a constitutional challenge, also, in my opinion.

[marylandblue]

13. Yes, but you would have to have legal standing to sue

Anyone else who has a suit against the AG can sue. If you are affected by one of Whitaker's decisions, you can sue. If DOJ sues you, you can say DOJ has no authority without a legitimate Acting AG.

[kentuck]

18. Would not each Senator have the standing?

As each of them is sworn to uphold the Constitution?

[marylandblue]

21. Democratic senators are considering it

It's not about the oath really, but about their right to provide advice and consent. Members of Congress suing the executive branch gets legally murky, but they can try.

[libdem4life]

27. I believe the State of California has cases, thus standing. n/t

[onenote]

14. The Maryland case raises constitutional as well as stautory objections.

Last edited Thu Nov 15, 2018, 05:05 PM - Edit history (1)

The problems with Maryland's case, as I see it, is that there are serious constitutional issues raised by the statutory provision that automatically designates the Deputy Attorney General as the Acting Attorney General. In particular, the Constitution gives the President, and only the President, the power to nominate and, with Senate consent, appoint, principal officers. While the appointment of Rosenstein as Deputy AG was consent to by the Congress, that is not the same as Congress consenting to the appointment of the Attorney General and there could be further issues because the automatic succession of the Deputy AG is not time limited -- he could serve in that position without being confirmed for that position indefinitely. Finally, the automatic nature of the succession provision effectively takes the decision as to who should exercise the duties of the office of AG out of the hands of the President. That could be a problem, although I think there are ways around it.

[kentuck]

19. I think the Constitution would supersede all successive legislation?

Including the Vacancies Act?

Otherwise, the Constitution would have to be amended.

[Jersey Devil]

22. Yes, exactly, that is how it works

The Constitution is the supreme law of the land

[marylandblue]

23. Well yes, but the Constitution requires advise and consent before the appointment

unless it's a recess appointment. Congress was still in pro forma session, so this was not a recess appointment. Since the Constitution is silent on who can succeed in an acting capacity, Congress can decide the issue by statute.

[onenote]

24. Right. In this instance, the Constitution requires two things:

One is that principal officers be nominated and appointed by the President.
The other is that the nomination/appointment of someone to be a principal officer requires Senate consent.

The problem with the Vacancies Reform Act, from a constitutional perspective, is with the second requirement: that a principal office can only be filled by someone confirmed by the Senate to hold that position. To the extent that the VRA would allow someone who was never confirmed to hold a principal office, it seemingly conflicts with that requirement. (As an aside, it can be argued that even those provisions of the VRA that purport to allow someone who has been confirmed to some other position in government to be named to a different principal office without having been confirmed to exercise the duties of that particular office, it may not be constitutional either).

The problem with the Attorney General Succession provision in title 28, which designates the Deputy Attorney General to automatically take over the duties of the Attorney General when the office of the Attorney General is vacant is that it can be seen as allowing Congress to usurp the President's exclusive power to decide who serves as a principal officer.

There is a possible way to reconcile this that involves agreeing with each side on part of their argument. Specifically, the court could agree with Maryland that the Succession provision overrides the VRA. And it could agree with the government that someone temporarily filling a vacancy in a principal office is not a principal officer and thus can be designated by Congress rather than the President. (The court would have to read into the Succession provision a "time limitation" that isn't actually in the Act, but it might do so.

[marylandblue]

30. Since we can't be without an Attorney General no matter what

Can it be argued that Congress can limit the President's ability to appoint someone temporarily? And that this limit furthers the Constitutional purpose of preventing the President from appointing someone who the Senate has not approved?

[kentuck]

31. I think it is a basic constitutional issue.

Unless the Constitution is changed, it states that there must be "advise and consent" for the Attorney General.

[onenote]

32. Actually we can be without an attorney general

but we need someone to exercise the duties assigned to the attorney general by Congress. (The Constitution doesn't requires that there be an attorney general -- it is a position created by Congress.)

[democratisphere]

9. Yes. The guy is Devin Nunes soul brother.

But there is always those promised pardons to save their asses!

[H2O Man]

16. There can be

no pardons in cases of impeachment.

[H2O Man]

15. Yes.

Impeachment covers both the judicial and executive branches. It does not cover the legislative branch.

[kentuck]

20. I suppose that would be the oversight given to Congress in the balance of powers?

Fairly brilliant, I think.

[H2O Man]

25. Yep!

It's one of the most important parts of our Constitution. The only way to repair our society is to look to and honor that powerful document.

[LeftInTX]

17. I remember they held Eric Holder in contempt of congress.

[Liberty Belle]

28. Remember John Mitchell, Nixon's Attorney General wound up in prison.

He left office in 1972 and was convicted in 1975 for crimes involving Watergate.

[kentuck]

29. He was running the Committee to Re- Elect President

CREEP