New attorney general, new headaches for Trump

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Critics claim Matt Whitaker's promotion is unconstitutional

Following the resignation of Attorney General Jeff Sessions, President Trump appointed Matt Whitaker to acting attorney general, prompting a meltdown on the left; reaction and analysis from former DOJ prosecutor James Trusty and former U.S. Assistant Attorney David Katz.

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On the roster: New attorney general, new headaches for Trump - Scott’s lead down to .18 percent as recount looms - Sinema takes the lead as Arizona count creeps forward - Runoff hopes dangling, Abrams sues to extend count - In Oklahoma, the deer hunt you

NEW ATTORNEY GENERAL, NEW HEADACHES FOR TRUMP
President Donald Trump may soon come to miss his old attorney general.

The decision to fire Jeff Sessions as attorney general was hardly a surprise. Trump had long chained him to a rock like Prometheus and sent tweets to pick at Sessions’ liver.

Once we were past the midterms, it was plain that Sessions would soon enough be heading home to Mobile.

What mattered more was Trump’s choice to replace him. As we have discussed before, the president would have long ago sacked the much-maligned Alabamian but for the fact that any replacement who could get confirmed by the Senate might be even more disobliging than Sessions.

The solution Trump seized upon the minute the pressure of the midterm elections had passed was to pick a loyalist, a former cable news commentator, a sharp critic of the probe into Russian interference in the 2016 election and reportedly an informal adviser to Trump as Sessions’ temporary replacement. 

Trump’s message was clear: Time’s up, Robert Mueller.

But in Matthew Whitaker, Trump may not have found deliverance but instead complicated matters for himself even more.

In the post-Watergate era, the Justice Department has operated under strict rules about professional conduct and with built-in curbs against the kind of executive abuses committed by Richard Nixon.

For starters, that means that there’s even a question whether Whitaker is eligible for the job. Trump holds that since Whitaker was confirmed 14 years ago to serve as a federal prosecutor in southern Iowa, Whitaker doesn’t need Senate confirmation to lead the Justice Department. But as former Judge Andrew Napolitano pointed out, that’s a pretty thin claim. 

Since his appointment, Whitaker’s sudden celebrity has revealed lots of baggage. Aside from his work for a Republican attack-dog group, there are his many publicly stated opinions about the Mueller probe both in writing and as a legal commentator for CNN. Then there’s his association with a dodgy-sounding firm that paid a huge fraud settlement.  

Senate Republicans are already pushing back privately and not so privately. By next week, the pressure will be intense. 

The White House seems to be distancing itself from Whitaker, whom the president today claimed not to know. But Trump seems to be struggling to find a confirmable candidate to take over the agency permanently, especially before the Russia probe is concluded. Labor Secretary Alex Acosta could be slid into the post without Senate confirmation, but is said to not want the job. 

Now, if Whitaker just squats over at the Justice Department and doesn’t do much but be Trump’s eyes and ears, the acting attorney general can probably persist for a while. But It won’t be long before the position becomes untenable. The Russia probe needs tending and other criminal matters related to the president are ripening. 

If Whitaker starts making material decisions relating to Trump or takes any provocative actions toward Mueller, all hell will break loose.

White House whisperers say that former New Jersey Gov. Chris Christie is the frontrunner to replace Sessions. That confirmation hearing would be a doozy as Trump’s campaign transition chairman was asked to explain his independence and then grilled on his own legal woes in New Jersey. Christie would be no sure thing in the Senate.

The universe of potential replacements who would take the job and be confirmed starts to look vanishingly small.
   
Trump lessened the fallout from his firing of James Comey as FBI director by tapping Christopher Wray, a well-regarded and highly accomplished former federal prosecutor, as his replacement. 

By choosing Whitaker to replace Sessions, Trump has made his own life more difficult.  

THE RULEBOOK: MATH IS FOR NERDS
“Nothing can be more fallacious than to found our political calculations on arithmetical principles.”– James Madison, Federalist No. 55

TIME OUT: THE AMAZING RACE
The Atlantic: “Tens of thousands of years ago, two gigantic ice sheets smothered the northernmost parts of what has since been named North America. They towered more than two kilometers high and contained 1.5 times as much water as Antarctica does today. … But once the ice started to melt, these peoples—the ancestors of the Americas’ Indigenous groups—spread southward into new lands. … That’s a very rough outline, but a new study from J. Víctor Moreno-Mayar and his colleagues …  showed that whatever happened south of the ice, it happened fast. They sequenced the genomes of 15 ancient humans, who came from sites ranging all the way from Alaska to Patagonia. One person from Spirit Cave in Nevada and five from Lagoa Santa in Brazil were especially instructive. They were all just over 10,000 years old, and though they lived 6,300 miles apart, they were strikingly similar in their DNA. Genetically, they were also closely matched to Anzick-1—a famous Clovis infant from Montana, who was about 2,000 years older.”

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SCOREBOARD
Trump job performance 
Average approval: 41 percent
Average disapproval: 52.8 percent
Net Score: -11.8 points
Change from one week ago: down .8 points 
[Average includes: Gallup: 40% approve - 54% disapprove; CNN: 55% approve - 39% disapprove; NBC/WSJ: 46% approve - 52% disapprove; ABC/WaPo: 40% approve – 53% disapprove; NPR/PBS/Marist: 40% approve – 50% disapprove.]

SCOTT’S LEAD DOWN TO .18 PERCENT AS RECOUNT LOOMS
Miami Herald: “Three statewide elections in Florida are all close enough to require machine recounts, and two of them would require hand recounts of ballots, based on the latest results posted by the state Friday. With Broward still counting early and mail ballots, according to the state website, and Palm Beach County still counting mail ballots, Gov. Rick Scott holds a lead of .18 percent over Sen. Bill Nelson, or 15,074 votes. (Broward elections officials said Thursday night that its count of early and mail ballots was complete and that they had ‘no idea’ why the state website didn’t reflect that.) Republican Ron DeSantis holds a lead of .44 percent over Democrat Andrew Gillum in the election for governor, or 36,211 votes. Democrat Nikki Fried clings to a lead of .04 percent over Republican Matt Caldwell in the race for the Cabinet post of agriculture commissioner, or 2,915 votes.”

Scott claims ‘rampant’ voter fraud - Sun-Sentinel: “Gov. Rick Scott is asking the Florida Department of Law Enforcement to investigate vote counting in South Florida’s Democratic stronghold counties, questioning whether ‘rampant fraud’ is happening as his race for U.S. Senate appears headed for a hand recount. Scott held a 15,079 vote advantage over incumbent Democratic U.S. Sen. Bill Nelson as of Thursday night. He has filed lawsuits against Brenda Snipes, Broward County’s supervisor of elections, and Palm Beach County elections chief Susan Bucher. The suits accuse their offices of not complying with the state’s public records laws.”

Lots of Dem ballots in Broward, but not all with Senate votes - Miami Herald: “As of Thursday evening, 676,706 votes had been counted in Broward in the U.S. Senate race, according to the Broward Supervisor of Elections website, overwhelmingly for Democratic incumbent Bill Nelson over Republican Rick Scott. But nearly every other statewide office garnered more votes in Broward than the Senate race, particularly the contest for governor, with 24,763 more voters — 701,469 in all — weighing in.”

SINEMA TAKES THE LEAD AS ARIZONA COUNT CREEPS FORWARD
AZ Central: “Suspense and uncertainty now hang over the supertight U.S. Senate race, which has Democrat Kyrsten Sinema and Republican candidate Martha McSally separated by just 9,610 votes, according to updated election results. The results were updated after 5 p.m. Thursday, the first time since election night that the tallies had been substantially updated. Sinema was leading as of 6:20 p.m. She had 932,870 votes, representing 49.10 percent of the total reported votes while McSally had 923,260 votes, or 48.59 percent. Green Party candidate Angela Green had earned 43,838. It's too soon to know who will ultimately prevail. With tens of thousands of outstanding ballots, the campaign managers for both teams conveyed confidence, with each saying the remaining ballots would favor their candidate.”

Judge rejects GOP initial request to limit vote counts - Mercury News: “A judge on Thursday rejected Republican demands to immediately limit vote counts in the razor-close U.S. Senate race in Arizona and has set a hearing on the challenge affecting about 5,600 votes in the state’s most populous county. Judge Margaret R. Mahoney said it was too soon to require Maricopa and other counties to stop contacting voters to verify signatures on mail ballots. She also declined to order the counties to temporarily separate mail ballots that have been verified by that process after Election Day. County registrars said that would cause chaos and slow the long vote-counting process even more. Mahoney scheduled a hearing Friday and indicated she would rule then.”

Republicans now claim fraud - AZ Central: “Republicans in Arizona and nationally are stoking claims of deliberate election fraud in the state's U.S. Senate race as Martha McSally and Kyrsten Sinema await results of a vote that could swing in either's favor. … Though McSally held a lead in early vote totals, the tally flipped in Sinema's favor Thursday night. Updated early results Friday morning kept Sinema with a 9,000-plus advantage, but an estimated 400,000 ballots remained to be counted. … On Friday morning, the Arizona Republican Party accused Maricopa County Recorder Adrian Fontes of ‘premeditated destruction of evidence’ after ‘voting irregularities’ in the election.”

RUNOFF HOPES DANGLING, ABRAMS SUES TO EXTEND COUNT 
Atlanta Journal-Constitution: “The Georgia Democratic Party, with support of Stacey Abrams’ litigation team, has filed a lawsuit in Dougherty County claiming that voters were denied the opportunity to cast ballots by mail during the general election. Kurt Kastorf, a member of Abrams’ litigation team, said Thursday that the campaign believes the county was slow to mail out absentee ballots. Mailings were held up initially when someone sued Dougherty officials after their name was excluded from the ballot, and later Hurricane Michael’s impact delayed government functions, the lawsuit says. … The lawsuit requests that the county be forced to count absentee ballots received through Friday as long as they were postmarked by Tuesday, rules already in place for members of the military and residents living overseas. Under current rules, all other absentee ballots must have been received by Election Day to be counted.” 

PLAY-BY-PLAY
Senate map not much better for Dems in 2020 - Vox

While opposition scrambles, Pelosi confident she will be next speaker - WaPo

Ellison leaves DNC day after he’s elected Minnesota AG - The Hill

Husband of Rep. Linda Sanchez indicted for misusing federal funds - Politico

Indiana Sen. Todd Young launches bid for NRSC chair - AP

Gillibrand tries out 2020 message: ‘restore the moral compass of this country’ - NYT

AUDIBLE: HOUSE MONEY
“A lot of people have lost a lot of money betting against her.” – Rep. Richard Neal (D-Mass.) on Nancy Pelosi’s odds of being elected speaker of the house.

ANY GIVEN SUNDAY
This weekend, on Veterans’ Day, Mr. Sunday Chris Wallace will sit down with West Virginian Hershel “Woody” Williams the last surviving Medal of Honor recipient from World War II. Check local listings for broadcast times in your area.

FROM THE BLEACHERS
“If I was a Democrat, I would go ahead and bury the impeachment talk. If I’m not mistaken, you need 2/3 of the senate to vote for impeachment, correct? So the best they could do is what they did to Clinton with an impeachment in the House. And what good would that really do for them? In fact the more I talk about it the more I’m for it. See how voters react if they try take a shot at our President and leave him standing. Similar to the way the attacks on Kavanaugh backfired, I would expect the same to happen. It may be smart for their own party to stick to good old fashioned legislating and leave the dirty politics by the bedside where it belongs.” – Leda Houser, Thomaston, Ga.

[Ed. note: Or, just skywriting here, what if we had a real Congress that did its job and provided appropriate oversight of the executive branch without blatantly making a partisan cudgel of it. There are a lot of reasons Americans are disappointed in Congress, but one reason our lawmakers so richly deserve the opprobrium is that they have lost their abilities as fair fact finders. Their hearings are bad jokes in which lawmakers make speeches hoping to get on television rather than get to the bottom of the questions at hand. I’m sure there will be lots of investigating going on in the next Congress. I highly doubt that much of it will be useful.]

“People can be as negative as they want but I feel great about America in 2018. I know people are divided, but it warms my heart to see so many people caring about our political process like they did this past Tuesday. Young, old, black, white, man, woman, the turnout numbers show Americans are engaged and care about the direction of their country, and that is a blessing whether anyone wants to admit it or not! It is too easy to be negative about the results of the elections instead of sitting back and viewing the beauty as a whole from afar.” – Terry Mulleson, Virginia Beach, Va.

[Ed. note: There are so many hot takes out there today that you need to wear a welder’s mask just to scroll through Twitter. Most of the post-election arguments fall into one of two categories: 1) “The people I agree with won and that is proof that we should do even more of what I like” and 2) “The people I agree with lost and that is proof that we didn’t do enough of what I like.” Are you a moderate Democrat? Missouri and Indiana Senate results easily confirm your view that your party has gotten out of whack. Are you a liberal Democrat? Proof that squishes lose. Are you a populist Republican? The same races are proof of your view of the power of MAGA? And so on. Elections, unless they are the kind of presidential landslide not seen in our country in 30 years, are tricky to interpret. Republicans believed that 2010 was a repudiation of Barack Obama… who went on to win handily two years later. Democrats thought the 2012 election was confirmation of a fundamental shift in American politics… until Republicans took back the Senate two years later. There’s no doubt that Democrats had a very good midterm election – their best one in the House since 1974 when the Watergate scandal dominated the discussion. What that really means, however, remains to be seen and will very much be determined by the events of the next two years. One thing we do know is that more than 114 million Americans exercised their franchise, at least 31 million more than four years before. Now, I happen to think that it’s fine for folks to not vote (as long as they don’t complain about the government), but I also tend to think that civic apathy is deadly to a republic. So I think you may have the best analysis of them all.] 

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IN OKLAHOMA, THE DEER HUNT YOU 
KFOR: “A Shawnee man is recovering from wounds suffered during a bizarre encounter with a defensive deer. In a video on Facebook, the deer can be see charging, forcing Travis Hurst to try and hold the buck to avoid his sharp antlers. Hurst was putting together a bonfire for his church on Wednesday night when a buck came out of the woods and straight up to them. ‘He gets closer and closer and we're thinking, 'Well, we might feed him or something,’ said Hurst. Then, the deer charged Hurst. ‘He stabs my legs and stabs my arms and everything,’ said Hurst. ‘He's wearing me smooth out and finally, I am able to let him go.’ After about five minutes, the deer eventually turned around and went back into the woods. ‘He got the best of me,’ said Hurst. ‘I think that he`s had some human contact because he wasn't afraid of us at all.’”

AND NOW, A WORD FROM CHARLES…
“It would be nice to breed for beauty and brains, but history and genetics teach that the confluence of the two is as rare in dogs as it is in humans.” – Charles Krauthammer (1950-2018) writing in the Washington Post on July 15, 1994. 

Chris Stirewalt is the politics editor for Fox News. Dave Sweet contributed to this report. Want FOX News Halftime Report in your inbox every day? Sign up here.