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U.S. Constitution
See other U.S. Constitution Articles

Title: DOJ OLC Memo Re Designating an Acting Attorney General (14 Nov 2018) (Matthew Whitaker)
Source: Department of Justice, Office of Legal Counsel
URL Source: https://www.scribd.com/document/393 ... g-Attorney-General-14-Nov-2018
Published: Nov 14, 2018
Author: Steven A. Engel, Assistant Attorney Gene
Post Date: 2018-11-14 13:02:24 by nolu chan
Keywords: None
Views: 100
Comments: 7

DOJ OLC Memo Re Designating an Acting Attorney General (14 Nov 2018) (Matthew Whitaker)

U.S. Department of Justice
Office of Legal Counsel
Washington, D.C. 20530

November 14, 2018

MEMORANDUM FOR EMMET T. FLOOD
COUNSEL TO THE PRESIDENT

Re: Designating an Acting Attorney General

After Attorney General Jefferson B. Sessions III resigned on November 7, 2018, the President designated Matthew G. Whitaker, Chief of Staff and Senior Counselor to the Attorney General, to act temporarily as the Attorney General under the Federal Vacancies Reform Act of 1998, 5 U.S.C. §§ 3345-3349d. This Office had previously advised that the President could designate a senior Department of Justice official, such as Mr. Whitaker, as Acting Attorney General, and this memorandum explains the basis for that conclusion.

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.

[...]

[Conclusion at page 20]

III.

The President's designation to serve as Acting Attorney General of a senior Department of Justice official who does not currently hold a Senate-confirmed office is expressly authorized by 5 U.S.C. § 3345(a)(3). Mr. Whitaker has been designated based upon a statute that permits him to serve as Acting Attorney General for a limited period, pending the Senate's consideration of a nominee for Attorney General. Consistent with our 2003 opinion, with Eaton, and with two centuries of practice, we advised that his designation would be lawful.

STEVEN A. ENGEL
Assistant Attorney General

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#1. To: nolu chan (#0)

So there!

misterwhite  posted on  2018-11-14   14:02:14 ET  Reply   Trace   Private Reply  


#2. To: misterwhite, nolu chan (#1)

So there!

Yep.

Judge Nap got this wrong too. He has been wrong twice in a row!

The other is the barring of Jim Acrapper from the White House due to unprofessional behavior.

Justified  posted on  2018-11-14   14:13:27 ET  Reply   Trace   Private Reply  


#3. To: Justified, misterwhite (#2)

I think the Judge was just channeling Laurence Tribe.

Liberal nonsense:

https://www.washingtonpost.com/news/posteverything/wp/2017/11/27/sorry-mr-president-you-cant-make-mulvaney-acting-head-of-cfpb/

Sorry, Mr. President. You can’t make Mulvaney ‘acting’ head of the Consumer Financial Protection Bureau.

The law says that the agency’s deputy director takes over when the director resigns. Nothing administration lawyers have said changes that.

By Laurence H. Tribe

Laurence H. Tribe is Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School.
November 27, 2017

Liberal nonsense meets reality:

https://en.wikipedia.org/wiki/Consumer_Financial_Protection_Bureau

2017 dispute over acting director

See also: English v. Trump

On November 24, 2017, Director Cordray appointed Leandra English to the position of deputy director, and announced that he would leave office at the close of business that day. Cordray indicated that would make English the acting director after his resignation, citing provisions of the Dodd–Frank Wall Street Reform and Consumer Protection Act providing that the deputy director of the CFPB becomes acting director in the "absence or unavailability" of the director. Later the same day, however, President Donald Trump appointed the incumbent director of the Office of Management and Budget, Mick Mulvaney, as acting director, citing the authority of the Federal Vacancies Reform Act of 1998.

On November 25, the Office of Legal Counsel released an opinion, written by Assistant Attorney General Steven Engel, asserting that the President has the authority under the FVRA to designate an acting CFPB Director. The OLC memo maintains that "both the Vacancies Reform Act and [§1011(b)(5) of Dodd-Frank] are available for filling on an acting basis a vacancy that results from the resignation of the CFPB’s Director" but that "when the President designates an individual...outside the ordinary order of succession, the President’s designation necessarily controls." This position is also supported by the General Counsel of the CFPB, Mary E. McLeod.

On November 26, English filed a lawsuit in the United States District Court for the District of Columbia seeking a temporary restraining order and declaratory judgment to prevent Mulvaney from becoming acting director, which was denied by a federal judge on November 28, 2017. Mulvaney was given access by unnamed individuals with the keys to the director's office on November 27 and ordered all CFPB employees to disregard any claims from English that she is the acting director. Both English and Mulvaney sent emails to the entire 1,600-person staff of the CFPB, each signing as "Acting Director" of the agency. On November 28, 2017, U.S. District Judge Timothy J. Kelly denied English's motion for a preliminary injunction and allowed Mulvaney to begin serving as CFPB Acting Director.

Mick Mulvaney remains the Acting Director of the CFPB.

Poor Larry has gone off the deep end mouthing prog nonsense.

- - - - - - - - - -

https://twitter.com/tribelaw/status/1012053073458552833

Laurence Tribe @tribelaw

The Kennedy vacancy brings abortion rights to the fore in the midterms because women can no longer take Roe v. Wade and judicial protection of reproductive rights for granted.

12:20 PM - 27 Jun 2018

https://www.washingtonpost.com/opinions/the-founding-fathers-wouldnt-want-kavanaughs-confirmation-to-continue/2018/08/24/5184ece6-a70b-11e8-8fac-12e98c13528d_story.html

The Founding Fathers wouldn’t want Kavanaugh’s confirmation to continue

By Laurence H. Tribe
August 24, [2018]

The name is now Mr. Justice Kavanaugh.

https://twitter.com/tribelaw/status/1062462827481456640

Laurence Tribe @tribelaw
20h20 hours ago

A strongly justified federal judicial smackdown to the hopelessly corrupt Brian Kemp opens the door to Stacey Abrams in Georgia

Federal judge Amy Totenberg, Obama appointee, native New Yorker, sister of Nina Totenberg of PBS.

https://twitter.com/tribelaw/status/1062401709400645637

Laurence Tribe @tribelaw
Nov 13

I stand in support @CNN as they challenge the president for hindering freedom of the press by revoking @Acosta’s press credentials.

https://twitter.com/tribelaw/status/1061815670546092032

Laurence Tribe @tribelaw
Nov 11

My explanation of why Whitaker’s appointment was clearly unconstitutional and of the ways it can be effectively challenged

nolu chan  posted on  2018-11-14   18:25:05 ET  Reply   Trace   Private Reply  


#4. To: nolu chan (#3)

I thought Trump talked about disbanding the Consumer Financial Protection Bureau.

Anyways, On June 16, 2018, President Donald Trump selected Kathleen Kraninger, a White House budget official, as the nominee to be the next director of the CFPB. 5 months and still no confirmation by the Senate. Good thing we have an acting director in the meantime, huh?

misterwhite  posted on  2018-11-15   9:28:44 ET  Reply   Trace   Private Reply  


#5. To: nolu chan (#3)

You'd think he'd remember this year-old case and keep his mouth shut.

misterwhite  posted on  2018-11-15   9:52:02 ET  Reply   Trace   Private Reply  


#6. To: misterwhite (#4)

I thought Trump talked about disbanding the Consumer Financial Protection Bureau.

I suspect you are thinking of the 25-member Consumer Advisory Board. Mulvaney fired all 25 of them.

https://www.washingtonpost.com/news/business/wp/2018/06/06/mick-mulvaney-fires-members-of-cfpb-advisory-board/

nolu chan  posted on  2018-11-15   14:31:58 ET  Reply   Trace   Private Reply  


#7. To: nolu chan (#6)

I suspect you are thinking of the 25-member Consumer Advisory Board. Mulvaney fired all 25 of them.

Ah. That's it.

misterwhite  posted on  2018-11-15   14:58:31 ET  Reply   Trace   Private Reply  


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