>> i was very disappointed to see the lawyers who work for matthew whitaker go back to 1866 and look for a precedent there the memo does admit that there has not been an acting attorney general who did not have senate confirmation since 1866, before the creation of the department of justice. and that 1866 appointment lasted only six days. fox news senior legal analyst was not persuaded by that memo. >> i was very disappointed to see the lawyers who work for matthew whitaker go back to 1866 and look for a precedent there to decide whether or not he was lawfully appointed. i don't care what happened in 1866 because the congress changed the law in the 1960s and said whoever runs the justice department has to be nominated by the president and confirmed by the senate because we put too much power in their hands. that kind of power can't go to a political hack.
history that an attorney general was even remotely appointed in this way was back in 1866, when he held the position for six days. but whitaker is not out of the woods yet. house democrats are preparing to investigate whitaker's role on the advisory board of a company accused of scamming millions from its customers. congressman adam schiff of california joins me now. schiff and his democratic colleagues sent letters requesting information on whitaker's involvement with that company's advisory board. let's start there, congressman schiff. what are you asking for? what are your concerns about whitaker? >> well, our concerns are that at a time when he was a paid advisory board member, this company is alleged to have been engaged in criminal conduct, we're talking about the chief law enforcement officer of the country, if he was aware of this criminal conduct or implicated in any way, or failed to uphold his responsibility, that is something that we ought to know of the chief law enforcement officer of the country. and certainly it raises another recusal issue.
constitutional under the appointments clause? the justice department today answering definitively yes it is constitutional for two main reasons. there is a federal statute from the '90s that says if you have served at the justice department as a senior official for at least 90 days at a certaineenier level of pay you can come in in an acting capacity. the justice department is saying that is how whittaker was appointed here. they are also pointing to the fact that this is only temporary. he hasn't been confirmed by the senate. they acknowledged that the last time this happened smwas over a century ago in 1866. they say even in that ace it was valid as it is today. they offer several justifications unlikely to quell some of the lingering issues from the critics. there is now ablthictive litiga going on.
succession at the department of justice which would have flowed through rod rosenstein. the other track was to use the federal vacancy's reform act to replace the attorney general on an interim basis. the department of justice says e sessions with a principle officer, he would need senate confirmation. if he were to replace sessions on an interim basis, that person would not need to be senate confirmed. a member of the department of justice said consistent with our prior opinion and censures of precedent, we advised that the president's decision to put whitaker in on a interim basis did not require senate confirmation. to help make that case, the department of justice went all the way back to just after the civil war, 1866, when the attorney general who was james
the president. that is similar to the case that mercedes schlapp was making on our network yesterday. >> sandra: interesting the way they lay it all out. the opening line of the opinion of the office of the legal counsel says the president appointed whitaker under the federal vacancies reform act of 1998 and further reveals, this is the quote. this office previously had advised the president could designate a senior department of justice official such as mr. whitaker as an acting attorney general. under the plain terms of the vacancy reform act he had been serving in the department of justice as a senior pay level for over a year. it goes on to very clear lay out its case and one important fact here that when looking at this, the office of legal counsel had to go back to 1866 to find another instance where a non-senate confirmed individual sat as acting attorney general. >> bill: the phrase principal officer coming up in the legal arguments. essentially what the lawyers will argue is whether they
>> trace: i don't want to give away the goods on your op-ed. everybody will love it tomorrow. your argument is that matthew whitaker is legally uneligible. as you heard john roberts say and the doj says he's eligible on the federal reform act. your thoughts? >> it's disappointed to see the lawyers that work for matthew whitaker go back to 1866 and look for a precedent there. i don't care what happened in 1866. the congress changed the law in the 1960s and whoever runs the justice department has to be nominated by the president and confirmed by the senate because we put too much power in their hands. they supervise 90,000 people and among home the fbi and they
confirmation. appointing someone to that pentagon in the interim does not. and the department of justice went all the way back to 1866 to cite an example. back in 1866 the assistant attorney general jay hubly ashton served for six days after the resignation of the attorney general. hubly ashton was not confirmed. but to go back to 1866, that's doing a lot of political history. >> julie: all right. john roberts at the white house, thank you. >> reporter: thank you. >> julie: so, some democrats are trying to prevent nancy pelosi from becoming the next speaker of the house, but do they have enough votes to stop her? we will talk about that. and in california, firefighters are trying to prevent further destruction. jonathan hunt has analysis. jonathan? >> reporter: julie, in northern california, the grim search for the bodies of the missing continues, while here in
so the constitution said this subject to the jurisdiction of. the court, the supreme court has upheld that reading except for 1898 case in which they said permanent residents if they're born here get citizenship, but the supreme court has never clarified what about temporary visitors here on a tourist visa or those who are not here legally. the supreme court has not clarified that. neil: all right, let me be clear. the way it was interpreted at the time when they first came up with this you believe in 1866 after the civil war, people-- permanent rizs were automatically citizens something not afforded to slaves prior to that, but one of the things you argue that's interesting is that this is the way it's done in europe, right? that it's not by geographical origin, but by bloodline. what does that mean? >> so the most countries in the world, except for many of those in central and south america, no developed country except the united states and canada, all
constitution. justice scalia called him a texturlist. the text couldn't be more clear. if you're born in the united states, you're a citizen. regardless of who your parents are. it's a settled issue and it's not complicated. >> kris, text is all persons born or naturalized are subject to the jurisdictions thereof and are citizens in the state wherein they reside. where is that not correct? where does that not apply to aliens? >> the key is and subject to the jurisdiction thereof. as jeffrey knows, all words in the constitution have meaning. you can't read words out of the constitution. and so the question is what does and subject to the jurisdiction thereof mean? and if you look at the debates in 1866 and 1867 in the congress, which drafted the 14th amendment, if you look at the statements of howard jacobs and lyman trumbull, they said it means owing no allegiance to any foreign power. owing allegiance only to the united states.
aliens? >> the key is and subject to the jurisdiction thereof. as jeffrey know, all words in the constitution have meaning. you can't read words out of the constitution. and so the question is what does and subject to the jurisdiction thereof mean. and if you look at the debates in 1866 and 1867 in the congress, which drafted the 14th amendment, if you look at the statements of howard jacobs and lyman trumbull, they said it means owing no allegiance to any foreign power. owing allegiance only to the united states. that would mean that a person who is here temporarily or certainly a person here illegally does not have -- owes allegiance to another power. in other words, is not subject to the jurisdiction of the united states. those words have meaning. it was never intended to be if you're born here and no other criterion is met, you get to become a citizen. >> kris, your critics point out the fact that the voter law that you tried to pass in your state was actually ruled