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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

8:06 p.m.

Rep. Marcia Fudge (D-Ohio) announced on Tuesday she will not challenge Rep. Nancy Pelosi (D-Calif.) for the role of speaker of the House and is offering her endorsement.

"I now join my colleagues in support of the leadership team of Pelosi, [Rep. Steny] Hoyer, and [Rep. James] Clyburn," she said in a statement. Pelosi, Hoyer, and Clyburn are the three highest-ranking Democrats.

Fudge said she was concerned about "voter protection and voter integrity," and the Democratic Party "should reflect the diversity of our changing nation and guarantee all our citizens the unfettered right to vote and to have every vote count." Pelosi, she said, has "assured me that the most loyal voting bloc in the Democratic Party, black women, will have a seat at the decision-making table" and "protections of the Voting Rights Act will be reinstated and improved."

Last week, 16 Democrats signed a letter saying they will oppose Pelosi for speaker. So far, no challengers have emerged, with House Democrats set to vote to select a nominee next week. Catherine Garcia

7:36 p.m.

President Trump has given Special Counsel Robert Mueller written responses to questions asked about Russian meddling in the 2016 presidential election, Trump's lawyers said Tuesday.

Attorney Jay Sekulow said copies of the questions and Trump's answers, as well as correspondence between Trump's legal team and Mueller's office, will not be released to the public. Another attorney, Rudy Giuliani, said it is now "time to bring this inquiry to a conclusion." This is the first time Trump has directly cooperated with the probe, The Associated Press reports.

It took about a year for Mueller's office and Trump's attorneys to reach the compromise of Trump answering Russia-related questions without having to appear for a sit-down interview. Part of the compromise included Mueller setting aside for the time being questions about obstruction of justice in relation to the firing of former FBI Director James Comey, AP reports. Catherine Garcia

6:46 p.m.

The Department of Homeland Security is paying undercover informants inside the migrant caravan headed to the southern border, two DHS officials told NBC News on Tuesday.

There are about 4,000 migrants in the caravan, most of them from Central America, and to communicate, they are using WhatsApp to text. DHS personnel are monitoring those messages, the officials said, as well as working with the Mexican government to keep track of the size of the caravan and any possible security threats.

On Monday, DHS announced that on Sunday night, it had gathered intelligence indicating that some migrants planned on running through the lanes at the border crossing near San Diego. The northbound lanes were closed for three hours, and no migrants attempted to rush through.

It's not known how much the Department of Homeland Security is spending on the informants. In a statement, DHS spokeswoman Katie Waldman told NBC News the department has "an obligation to ensure we know who is crossing our borders, to protect against threats to the homeland, and any indication to the contrary is misinformed." Catherine Garcia

5:37 p.m.

Former White House Counsel Don McGahn apparently had a very hard time convincing President Trump to leave Hillary Clinton and James Comey alone.

This spring, Trump told McGahn he "wanted to order the Justice Department to prosecute" the former secretary of state and former FBI director, two sources tell The New York Times. McGahn immediately shut the president down, reportedly saying he didn't have the power to order a prosecution. Trump could try investigating his political rivals, McGahn said, but that could "prompt accusations of abuse of power" and potential impeachment charges, the Times writes. McGahn then reportedly made White House lawyers wrap up all that advice in an official memo.

But McGahn's words didn't seem to sink in. Trump has "continued to privately discuss the matter, including the possible appointment of a second special counsel" to investigate Comey and Clinton, the Times writes. The president had also reportedly hoped his FBI Director Chris Wray would take action against Clinton, but Wray let him down.

It's unclear what Trump exactly would like to prosecute Comey and Clinton for. But the matter displays how Trump "views the typically independent Justice Department as a tool to be wielded against his political enemies," the Times writes — something that could become particularly relevant with the appointment of loyalist Matt Whitaker as acting attorney general.

The White House declined to comment to the Times. McGahn's lawyer would not comment on any legal advice relayed to the president, but said to McGahn's knowledge, "the president never ... ordered that anyone prosecute" Clinton or Comey. Read more at The New York Times. Kathryn Krawczyk

5:27 p.m.

Mississippi Sen. Cindy Hyde-Smith (R) may have lost Walmart's support over a so-called joke about lynching. But President Trump is still firmly on her side.

Trump has already scheduled two campaign rallies for the Republican, whose previously easy race in a runoff election against Democrat Mike Espy has started looking tighter. And on Tuesday, Trump called Hyde-Smith "spectacular" and suggested he'd hold three rallies for her if he could — just after Politico dug up some photos of her in a confederate soldier's hat.

Hyde-Smith first walked into trouble last week after a video showed her saying that if a supporter "invited me to a public hanging, I'd be on the front row." Espy's campaign called her comments "reprehensible," but Hyde-Smith said they were taken out of context. Another video captured her suggesting voter suppression was "a great idea" in what her campaign said was a joke.

After the first round of dust had settled, a photo of Hyde-Smith in a Confederate soldier's hat and toting a musket surfaced. The photo came from Hyde-Smith's public Facebook post of her time at the Jefferson Davis Home and Presidential Library, a visit she described as "Mississippi history at its best!"

It's unclear if Trump saw the Confederate picture before he commented about her to reporters on Tuesday. Still, he said Hyde-Smith "feels very badly about" some unspecified comment, but added that "it was just sort of said in jest," per the Toronto Star's Daniel Dale. Kathryn Krawczyk

5:21 p.m.

In very important chocolate spread news, market leader Nutella will soon be facing a serious competitor.

Barilla, an Italian company whose blue pasta boxes you probably recognize from supermarket shelves, plans to release a chocolate spread called Crema Pan di Stelle next year, reports Reuters.

The move to compete with Ferrero, the company that makes Nutella, is part of a burgeoning, delicious rivalry between the two Italian companies. The competition really began to heat up when sources said Ferrero would release a biscuit filled with Nutella in 2019, similar to Barilla's established line of cookies, Baiocchi, Reuters reports.

Barilla will try to get a spoon up on the competition by producing chocolate spread made with sunflower oil. Nutella has faced backlash for using palm oil in its recipe after the ingredient was deemed a "potential health concern," reports CNN.

Barilla's take on the chocolate and hazelnut goodness will feature a crunch, thanks to the addition of Pan di Stelle cookie crumbles, reports Reuters. Crema Pan di Stelle could launch in Italy as early as January, but industry experts say it could cost the company millions of euros to convince stores to display the new spread with the same prominence as Nutella. No word yet on when consumers in the U.S. will be able to try the new spread and help decide who should come out on top in the Italian sweet treat rivalry. Read more at Reuters. Taylor Watson

4:13 p.m.

Toss that romaine right in the trash.

Beyond its usual shtick of boring your tastebuds to death, romaine lettuce in any and all forms can actually infect you with E. coli now, the Centers for Disease Control and Prevention said Tuesday. There's a "particularly dangerous" strain of the contamination striking salad bowls everywhere, The Washington Post writes, and the CDC recommends you throw it all out.

Since this most recent E. coli outbreak began in early October, 32 people in 11 states have come down with the strain, says the CDC. Of them, 13 have been hospitalized and one suffered kidney failure. Canada's health department reported another 18 people had fallen ill from the same outbreak as well.

It romaines to be seen whether one particular grower or strain is causing the infection. So toss out "whole heads of romaine, hearts of romaine, and bags and boxes of precut lettuce and salad mixes that contain romaine, including baby romaine, spring mix, and Caesar salad," the CDC said, as well as any lettuce you're unsure about. Then clean out your fridge and sanitize any shelves the romaine touched — seriously. And don't eat any romaine at restaurants.

This new alert comes in the wake of another E. coli outbreak that killed five people from March to June. So if you were planning make this Thanksgiving a romaine holiday, take a closer look at what you're tossing together. Kathryn Krawczyk

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