The rules are clear: Whitaker can not oversee Mueller's investigation.

I had the privilege of drafting the Special Council Regulation 20 years ago while I was at the Department of Justice. Remember the context: the independent lawyers act expired in June 1999 and a lively debate took place on what should be replaced. After the multitude of investigations conducted by the Clinton administration, many voters in Washington have called for the renewal of the supercharged independent prosecutor. Others, seeing what they thought were abuses by then-independent lawyer, Ken Starr (and by former independent lawyer, Lawrence Walsh, who had supervised the earlier investigation against Iran against the Reagan administration more than a decade before Starr), felt that something more responsible and less independent should be created instead.

[Congress or Trump can still block Mueller. I know. I wrote the rules.]

My colleagues from the Department of Justice and myself, as well as a bipartisan group from Capitol Hill, worked on many possible scenarios before settling the rules that currently govern Mueller's investigation. Everyone in the debate acknowledged that any improvement in the special advocate's responsibility should come from additional oversight by the Attorney General. After all, the power to supervise is the power to destroy. The Attorney General may prevent a special advocate from conducting an investigation or taking a specific action (such as summoning a president). He can read all the board records and can even try to give information about the investigation to the president in real time. And it plays a crucial role in determining what Mueller's report, if any, is given to Congress and, ultimately, to the public.

But no one – and I mean no one – ever thought that the regulations we wrote would allow the president to install a member of his Justice Ministry staff of his choice to act as a prosecutor Acting General and thereby supervise the special council. Capitol Hill would have laughed at this proposal in a nanosecond, because it was fundamentally contrary to the most capitalist principle that no one is above the law.

He simply can not allow the president to appoint his own temporary Attorney General to oversee an investigation in which he and his family have a direct and concrete interest. The Constitution itself points out – even assuming that Trump's supporters are right, under the appointment clause, an acting Attorney General does not always need to be confirmed by the Senate. Ordinarily, the "principal", undoubtedly the secretaries of the Cabinet, must be confirmed by the Senate in accordance with Article II of our Constitution. The most eloquent advocates of Trump's action say that Whitaker serves as a temporary officer as a lower officer and can therefore serve without confirmation. But they cite precedents that do not apply because they relate to emergency situations in which no one else has been confirmed by the Senate in the line of succession. In this case, the Senate confirmed two officials who could continue to supervise Mueller: Deputy Attorney General Rod J. Rosenstein, who oversaw the case since the disqualification of former Attorney General Jeff Sessions, and the Solicitor General, Noel Francisco. Notably, the Congressional status of the Department of Justice's succession indicates that these people are the following, not just a hand-picked employee in the bowels of the department.

But even if the statements of the defenders were true, all that would mean is that Whitaker is an inferior officer who does not need to be confirmed by the Senate. In this situation, it would always be necessary for someone else, a senior officer, to be in place to supervise Mueller – who is also a lower officer. This responsibility would again fall to Rosenstein under the statute of succession authorized by Congress.

Sometimes a lower officer must supervise other lower officers without a director, for example if no one has been confirmed at the beginning of the administration. Or, in a more hypothetical scenario, imagine a military conflict in which the victims make that there are no officials confirmed by the Senate in a department. But fortunately, today's Justice Department does not deal with problems like these. There are officials confirmed by the Senate at the helm.

Apart from these problems, there is another problem specific to the Mueller investigation. In an emergency situation where an acting head is appointed, the president is ultimately the person responsible for the unconfirmed temporary supervision. The idea is that there would be at least one responsible person in front of the public over the acting officer in these situations – and as Harry Truman said, the responsibility always comes back to the president.

[Yes, Trump can fire Mueller. But a normal president would know not to try it.]

Here, however, the idea that the president can be trusted to supervise Whitaker as he oversees Mueller's work is absurd. The potential for negotiation, not altruistic sacrifice, is generalized. Trump could secretly order Whitaker to stick to his orders and stop an investigation into his family's wrongdoing, and Whitaker would take responsibility. Trump could protect his actions from public scrutiny and Whitaker, who relies entirely on the president's support for his work and further advancement, would have no right to complain. This is fundamentally at odds with the fundamental principle of American law, dating back to the early 1600s, that no one can be a judge in their own case.

The problems do not stop there. Because even if you think Trump could overcome this hurdle and oversee an investigation on himself, he may not be able to install the compromised Whitaker to the task. Ethical rules of the Department of Justice prohibit a person from participating in a criminal investigation if he or she has "a personal or political relationship" with "all no one … that he knows to have a specific and substantial interest that would be directly affected by the outcome of the investigation. That's fine with T. Whitaker actually campaigning for the job, first on television, then at the White House. privately, criticizing the Mueller investigation, even claiming that "the truth is that there was no collusion with the Russians and the Trump campaign," writes an editorial titled "Mueller's investigation of Trump goes too far And insinuating that he was part of the Trump team. Obviously, he even had an interview to defend Trump against Mueller. And Whitaker led a past political campaign of Sam Clovis, a Trump confidant who was summoned by the grand jury as part of the investigation into Russia.

Given all this, it's no wonder Trump told people that Whitaker would be "loyal".

In some cases, Justice Department officials may supervise investigations even if they have personal knowledge of the entities involved. After all, the president appoints all the senior officials who work there. Relationships will therefore often exist. But there is a big difference between these cases of garden varieties and this one. The deontological rules of the department define a "personal relationship" as "a close and substantial connection to the type normally considered likely to lead to bias". And that's where the temporary nature of the Whitaker appointment boomerang. Like Supreme Court decisions that are only worth a day, "when an appointment is made for a single reason, it seems more suspicious. This suspicion is further exacerbated because Whitaker has not been confirmed by the Senate. No independent body has endorsed his ethics or integrity – and bypassing the Senate suggests that his appointment appears to be an attempt to place a Trump lackey in charge of the investigation. Finally, the code of ethics asks if a replacement can be easily found. In this situation, two people can intervene. One, in fact, already plays the role of Attorney General for the purpose of Mueller's investigation – another reason seems to indicate that Whitaker was installed simply to change the way the special advocate's work is handled.

Our founders recognized that "men were not angels" and that control mechanisms within government were essential to avoid threats to the rule of law. The Whitaker facility violates our most basic principles – enshrined in the Constitution, the laws promulgated by Congress, the ethical rules that govern our attorneys and the regulations of the special councils.

It is illegal and unprincipled.

It has to stop.

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