appointed on a temporary basis, that that somehow makes him an inferior officer. it doesn t. it simply makes him a temporary principal officer. otherwise, you could avoid the constitutional requirement. and you can t pass a statute like the vacancy reform act that somehow supersedes the constitution. it doesn t. and what i think the justice department really needs to consider is there is language post dating their earlier opinion on this subject in the supreme court by justice thomas and maybe others that clearly indicate that the reasoning they used back in 2003 when they approved a much lesser appointment, is likely to be flawed and not withstand supreme court scrutiny. well, it seems we are definitely going to see this argument made in court, possibly both sides of the argument made in court, in federal court. but this is just the first case, the maryland case. there could be cases in every federal district in the country making the same argument.
appointed on a temporary basis, that that somehow makes him an inferior officer. it doesn t. it simply makes him a temporary principal officer. otherwise, you could avoid the constitutional requirement. and you can t pass a statute like the vacancy reform act that somehow supersedes the constitution. it doesn t. and what i think the justice department really needs to consider is there is language post dating their earlier opinion on this subject in the supreme court by justice thomas and maybe others that clearly indicate that the reasoning they used back in 2003 when they approved a much lesser appointment, is likely to be flawed and not withstand supreme court scrutiny. well, it seems we are definitely going to see this argument made in court, possibly both sides of the argument made in court, in federal court. but this is just the first case, the maryland case. there could be cases in every federal district in the country making the same argument.
president has tremendously way in who he sees fit remember, this is the executive branch. there is only one key officer in the executive branch. dagen: in the meantime, the wall street journal is reporting that the department of justice is expected to report legal opinion. democrats say that whitaker s past criticism of robert mueller s russia probe raise questions about his objectivity. with the wall street journal, the congressman is reporting that the doj s office of legal counsel opinion is supposed to an issue back in 2003, a nonconfirmed employee can be appointed as the acting director, because acting director is an inferior officer under the supreme court precedent. he adam: legally. dagen: again, how does the white house get this out of the way? earlier, it was said that whatever whitaker does and makes makes, decisions that he makes,
if he was put before guess, i doubt he would have been confirmed before the senate. now there s all eyes on him because he is overseeing an important investigation for the next 210 days. jim, do you know anything about whitaker? let me ask real quick if you know anything about whitaker being considered at one point to join trump s legal team. i don t know anything about that. that s up to the president s private lawyers to the extent those discussions were taking place. i represented the white house and the white house counsel s office. going back to the constitutional issue, clearly this is a temporary and special circumstance. it s well within the province of the president to appoint whoever he wants. he doesn t have to appoint an inferior officer, meaning a deputy attorney general or one of the assistant attorneys general s to that position. it s not required. it s not required by the law. it s not required by the constitution. if he wants to have matt whitaker for 210 days for
the special counsel loses his status as what s called an inferior officer, because he s, frankly, not being supervised by a senate confirmed individual anymore, then the whole probe is in jeopardy. there s going to be motions to quash subpoenas, motions to dismiss that really challenge whether the mueller investigation essentially lost its bearings, lost its jurisdiction, because nobody was supervising it with senate confirmation status. so there s a little be careful what you ask for here in terms of knocking rosenstein out of the question out of the supervisory chain. it could really create some interesting legal issues, at least a little bit down the road. that s a huge, huge issue right there that was just raised. if it wasn t a mess before, hello, everyone, welcome to it. i really appreciate it. james, great to see you. john, evan, thanks, guys. see you. outfront for us next, we re standing by for a key race alert for a crucial senate race that is still too close to ca