November 9, 2018

There has been some argument over whether President Trump violated the Vacancies Reform Act when he appointed Matt Whitaker acting attorney general, bypassing Senate-confirmed candidates and ignoring the Justice Department's statutory line of succession. But that's beside the point, argue prominent lawyers and Constitution defenders Neal Katyal and George Conway III in a New York Times op-ed published Thursday. Trump's installation of Whitaker "is unconstitutional," they argue. "It's illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid."

The constitutional issue involves Article II, Section 2, Clause 2, known as the Appointments Clause. "Under that provision, so-called principal officers of the United States must be nominated by the president and confirmed by the Senate under its 'Advice and Consent' powers," explain Katyal, an acting solicitor general under former President Barack Obama, and Conway, a prominent conservative lawyer most famous for being married to White House counselor Kellyanne Conway. "A principal officer must be confirmed by the Senate" and answers only to the president. They continue:

We cannot tolerate such an evasion of the Constitution's very explicit, textually precise design. Senate confirmation exists for a simple, and good, reason. Constitutionally, Matthew Whitaker is a nobody. ... Because Mr. Whitaker has not undergone the process of Senate confirmation, there has been no mechanism for scrutinizing whether he has the character and ability to evenhandedly enforce the law in a position of such grave responsibility. The public is entitled to that assurance, especially since Mr. Whitaker's only supervisor is Mr. Trump himself, and the president is hopelessly compromised by the Mueller investigation. That is why adherence to the requirements of the Appointments Clause is so important here, and always. [The New York Times]

On CNN, Jake Tapper's panel looked at the legal arguments but took special interest in Conway's role and the concurrence of Fox News pundits. Watch below, and read the entire op-ed at The New York Times. Peter Weber

5:30 p.m.

John Kelly is just doing what former Trump officials do.

On Wednesday, the former chief of staff for President Trump officially started his new career in public speaking. Kelly joined an agency that already represents a slew of ex-White House staffers, including former Press Secretary Sean Spicer and former Attorney General Jeff Sessions. It seems like a predictable move for Kelly, but the speaking example he's using to promote himself is more interesting, The New York Times' Aaron Blake points out.

Kelly's agency profile is loaded with his biography and favorite speech topics: governance, geopolitics, and leadership, if you were wondering. There's just one featured video of him speaking, though, and it comes from a White House press room appearance in October 2017. In it, Kelly discusses going to the dedication of a new FBI field office in Florida back in 1986, and how Rep. Frederica Wilson (D-Fla.) only "talked about how she was instrumental in getting the funding for that building." Wilson slammed the comments as a "lie."

A video later surfaced by the South Florida Sun-Sentinel quickly showed that, as PolitiFact notes, Kelly "mischaracterized" Wilson's words "in significant ways." Kelly later said he would "absolutely not" apologize to Wilson, but it's still a little strange that he'd choose such a controversial clip to advertise his speaking prowess.

Add Kelly to your speaker wishlist — and watch the video of him disparaging Wilson — here. Kathryn Krawczyk

5:14 p.m.

Supreme Court Justice Clarence Thomas listened to arguments about a case that involves racial discrimination on Wednesday. And then he did something surprising. He spoke — for the first time in three years and only the second time in a decade.

Thomas, a conservative judge, is reportedly known for his silence on the stand, but, per Reuters, he asked several questions amid arguments in the case of Curtis Flowers, a 48-year-old black man from Mississippi who has been tried for the same quadruple murder six separate times. He is an inmate on death row. Flowers' case was the focus of the American Public Media podcast, In the Dark.

Flowers and his attorney, Sheri Lynn Johnson, are arguing that Flowers' right to a fair trial was violated multiple times because the prosecutor in his case "had relentlessly worked to keep black jurors from sitting on" Flowers' trials. Both sides in a trial are, in fact, permitted to strike a limited number of potential jurors and they are not required to submit a reason behind the decision. But a juror's race cannot be a factor.

Reuters reported that it seemed likely the Supreme Court would side with Flowers, including other conservatives Justices Brett Kavanaugh and Samuel Alito. But Thomas, who is also black, sounded skeptical and was focused on whether Flowers' defense team had likewise sought to exclude white jurors in Flowers' most recent trial. Tim O'Donnell

4:11 p.m.

President Trump's feud with the late Sen. John McCain has become a downright obsessive vendetta.

Despite the fact that the former GOP senator died nearly six months ago, Trump has decided in the past few days to dig up his favorite McCain insults and seemingly launch them at random. He tied McCain to the Steele dossier in some tweets on Sunday, and then ranted about McCain's thumbs-down vote on repealing the Affordable Care Act to Brazilian President Jair Bolsonaro again on Tuesday.

But things got intensely personal on Wednesday, with Trump bragging about how he gave McCain "the kind of funeral that he wanted" in a speech at an Ohio army tank plant. Trump said that McCain's funeral was something he "had to approve," but added that "I don't care about this." Trump then showed he really did care by claiming he "didn't get a thank you."

Trump followed this new episode in his backlog of McCain rants with a repeat, describing how he "never liked" McCain much and "probably never will," and complaining about the Steele dossier and ACA vote again. He did not mention that the funeral McCain wanted was one without him in the audience. Kathryn Krawczyk

3:55 p.m.

Rep. Devin Nunes (R-Calif.) literally did this to himself.

Just two days ago, the congressman decided to sue a parody Twitter account called @DevinCow because it was apparently spreading misinformation to its 1,200 followers. Now, largely thanks to Nunes' own self-raised stink, that cow has a lot more followers than Nunes himself.

In his Monday lawsuit, Nunes sued the entirety of Twitter for $250 million, saying it "shadow banned" conservatives, including himself, ahead of the 2018 midterms. That term refers to some Twitter users' favorite conspiratorial excuse for why their content is allegedly being hidden, as Nunes inartfully explained to Fox News' Sean Hannity after filing the suit. Nunes' suit also said accounts like @DevinCow and @DevinNunesMom served him "an orchestrated defamation campaign of stunning breadth and scope, one that no human being should ever have to bear and suffer in their whole life." Really.

Commentators and comedians promptly dunked on Nunes' very dramatic lawsuit, and thousands of Twitter followers followed suit. As of Wednesday afternoon, @DevinCow had easily surpassed Nunes' own 395,000 followers, and the lead has only continued to grow since. The suit has also inspired dozens of other bovine accounts, and earned @DevinCow a whole herd of high-profile supporters. Kathryn Krawczyk

3:49 p.m.

Donna Brazile is defending herself after facing some criticism for going to work for Fox News, saying she thought long and hard about the decision and stands by it.

The former Democratic National Committee chair, who earlier this week was hired as a contributor for the network, spoke with The New Yorker on Wednesday and again said she accepted the job in order to reach those who might disagree with her, arguing that "if you want to help the country, if you want to try to improve democracy, you have to go into places where you are uncomfortable and try to stir things up." Journalist Isaac Chotiner didn't seem to fully buy this explanation, asking if she thinks Fox News itself may have contributed to the very lack of civility in political discourse that she decries.

"Is Fox responsible alone?" Brazile asked. "No ... I don't want to blame it on one entity." She instead criticized the "the entire media landscape," especially journalists who reported on emails of hers released by WikiLeaks, later saying, "I knew people were going to call and say, 'Don’t you know the house might stink up?' Yeah, but is that the only house that is stinky?"

The conversation got a bit heated when Brazile said she hopes to "call out" racism, to which Chotiner responded that she'll be "seeing it a lot now" at Fox. "I hope you understand that you are having a conversation with me because I chose to call you back," Brazile said. "I understood that when I made this decision to call you that you probably wanted to get up in my crap about going on Fox." She later told Chotiner not to act "somehow appalled that a black woman, or a woman, or a liberal progressive" would go work for Fox, saying she has "all my marbles" and telling the reporter, "you don't know me." Brendan Morrow

3:37 p.m.

How's that for irony.

The Verge reported that during an Economic Club event in Washington, D.C. on Wednesday, AT&T CEO Randall Stephenson was interrupted in the middle of an on-stage interview by, what else, a robocall.

The robocall epidemic — that is, the swarm of computerized telemarketing calls that deliver a pre-recorded message to your phone — is on the rise and no one, not even the head of one of the nation's most powerful mobile carriers, can escape its reach.

Lawmakers have orchestrated bipartisan efforts to address the problem and customers are pressuring the Federal Communications Commission to put an end to scammer calls, per The Verge. FCC chair Ajit Pai, meanwhile, has threatened federal intervention if carriers like AT&T don't find a way to curb the calls. But so far their efforts have been fruitless, meaning that, for the time being, those random numbers will continue to haunt us all. Tim O'Donnell

2:53 p.m.

Finland is once again the world's happiness nation.

The 2019 World Happiness Index, an annual ranking released by the Sustainable Development Solutions Network for the United Nations, placed the Nordic nation, which is known for its strong education system and public safety, at the top of the list for the second year in a row. Its neighbors Denmark, Norway, Iceland, and Sweden were all in the top 10, as well.

The ranking system considers six different factors — freedom, generosity, income, trust, healthy life expectancy, and social support — when determining nations' overall happiness levels.

The United States wound up as the 19th happiest country, down one spot from a year ago, and five spots from 2017, signaling that the nation is becoming less happy. Per U.S. News, the report specifies the decline of happiness among the American population lies parallel to a rise in depression, suicide ideation, and self-harm, as well as an "epidemic of addictions," including substance abuse, gambling, and poor diets.

The report lists South Sudan as the least happy nation. Read the full World Happiness report. Tim O'Donnell

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