Whitaker Reigns Over Mueller Investigation

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Originally published on the Daily Tack

As of July 31, 2018, Special Counsel Robert S. Mueller has been reigned in by a District Judge for the United States District Court for the District of Columbia. It was on that day that the Judge declared that Mueller is an inferior Officer.

In this 92 page Memorandum of Order, the Judge outlines the law that determined that Special Counsel Robert S. Mueller is indeed an inferior officer.  It is being disputed by the Democrats and by many MSM outlets that Acting Attorney General Whitaker CANNOT oversee the Mueller investigation.  They are wrong. In this MOO pertaining to the case, Grand Jury Action No. 18-34 (BAH) Chief Judge Beryl A Howell lays it all out.

On August 16, 2018, I had written an article reporting that Mueller was an inferior officer analyzing this MOO.

COURT DOCS: Parameters FINALLY Set in Mueller Investigation

This is a case of first impression, there have not been any guidelines regarding the parameters of Mueller’s investigation, causing frustration among President Donald J. Trump, American citizens, and even federal judges.

According to a court memo, Mueller is to be regarded as an “inferior officer,” and thus his investigation subject to the parameters and scope of the Attorney General, or in this case, Deputy Attorney General Rosenstein.

The brief says:

“The line between ‘inferior’ and ‘principal’ officers is one that is far from clear, and the Framers provided little guidance into where it should be drawn.” Morrison, 487 U.S. at 671. Morrison identified four factors a court considers in determining whether an officer is principal or inferior: whether the officer is (1) “subject to removal by a higher Executive Branch official,” (2) “empowered . . . to perform only certain, limited duties,” (3) “limited in jurisdiction,” and (4) “limited in tenure.” Id. at 671 – 72.

 

Edmond clarified that the first of these factors — whether an officer is “subject to removal by a higher . . . official” — is by far the most important to a Court’s determination of principal – inferior status, while reformulating that factor into a broader inquiry into whether an officer’s “work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.” 520 U.S. at 663.

After 92 pages of legal analysis, the Judge found that Mueller fits into the category of “inferior officer,” and is to be bound in scope by the parameters set by Rosenstein.

THE LAW

This report also lays out the law on the powers and actions of the Acting Attorney General too.  It clearly states  on page 14:

…The regulations seek to achieve “day-to-day independence” of the Special Counsel, who is “appointed to investigate and, if appropriate, prosecute matters when the Attorney General concludes that extraordinary circumstances exist such that the public interest would be served by removing a large degree of responsibility for the matter from the Department of Justice.” The regulations leave a Special Counsel “free to structure the investigation as he or she wishes and to exercise independent prosecutorial discretion to decide whether charges should be brought, within the context of the established procedures of the Department,” while retaining in the Attorney General “ultimate responsibility for the matter and how it is handled.”  The regulations thus “explicitly acknowledge the possibility of review of specific decisions reached by the Special Counsel.” The regulations also contemplate that the Acting Attorney General would assume responsibility over a Special Counsel matter “if the Attorney General is personally recused in the matter.” The Department of Justice promulgated the regulations without either notice and comment or a 30-day delay in the effective date as “rule[s] relat[ing] to matters of agency management or personnel.

 

As we can see, there is no waiting period, no provision, no delay, as of yesterday Acting AG Whitaker has the reigns of the Mueller investigation and anyone who has a law degree and says otherwise needs to be re-educated.  It’s clear as day.

In addition on page 15  it states:

Although a Special Counsel is not “subject to the day-to-day supervision of any official of the Department,” nonetheless “the Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued.” Id.§ 600.7(b).

 

Thus, if the rumors are true that Special Counsel Mueller has a report ready…Acting AG Whitaker will take his red pen and ensure that the investigation falls within the scope, which has not been the case thus far.

Lastly,  it is clear that Acting Attorney General Whitaker can also, according to pgs 16-17 

The Attorney General must notify “the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress” upon either appointing or removing a Special Counsel, and provide “an explanation for each action.” Id.§ 600.9(a)(1)–(2). In addition, the Attorney General must, “[u]pon conclusion of the Special Counsel’s investigation,” provide “a description and explanation of instances (if any) in which the Attorney General concluded that a proposed action by a Special Counsel was so inappropriate or unwarranted under established Departmental practices that it should not be pursued.” Id.§ 600.9(a)(3); accord id.§ 600.7(b)

 

Again, the law is set and has even been interpreted in a case which pertains to Special Counsel Mueller.  There is no room for interpretation further to that of the courts and thus Acting AG Whitaker has FULL control of the Mueller investigation with no waiting periods, no confirmations or other hoops to jump through.

DISCIPLINARY ACTION

Mueller is not immune to disciplinary action.  It’s clear and concise interpreted and stated by the Judge as follows:

A Special Counsel is not unbounded but is “subject to disciplinary action for misconduct and breach of ethical duties under the same standards and to the same extent as are other employees of the Department of Justice,” with “[i]nquiries into such matters . . .handled through the appropriate office of the Department upon the approval of the Attorney General.” Id.§ 600.7(c)

 

FUNDING

With over $17 Million spent in the probe so far the next DOJ report was due this week.  This will be reporting expenditures from April 1 to September 30 of this year according to Politico.

A Special Counsel must, within 60 days of appointment, “develop a proposed budget for the current fiscal year . . .for the Attorney General’s review and approval.” Id.§ 600.8(a)(1). The Attorney General, upon consideration of the Special Counsel’s budget proposal, then “shall establish a budget for the operations of the Special Counsel.” Id.“Thereafter, 90 days before the beginning of each fiscal year, the Special Counsel shall report to the Attorney General the status of the investigation, and provide a budget request for the following year.” Id.600.8(a)(2). The Attorney General then “determine[s] whether the investigation should continue and, if so, establish[es] the budget for the next year.

 

Is it possible that the Mueller investigation will end because the Acting Attorney General refuses to fund it?  Yes, and he has every authority to do so.

Yesterday was a big day. Special Counsel Mueller has already handed over full access to Acting AG Whitaker.  Why else are they demanding for his recusal?


This article was originally published on the Daily Tack

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