The Constitution And Trump’s Temporary Attorney General

President Trump's selection to serve as Acting Attorney General does not appear to be Constitutionally authorized to serve in that position.

It’s been two days since President Trump fired former Attorney General Jeff Sessions and replaced him, at least temporarily, with Sessions’ former Chief of Staff Matthew Whittaker, a move that many found surprising since it went around the normal procedure that would have had Deputy Attorney General Rod Rosenstein taking Sessions’ place as Acting Attorney General until a replacement can be confirmed. Many legal scholars are arguing, though, that Whittaker’s appointment is unconstitutional:

President Trump’s decision to replace Attorney General Jeff Sessions with Matthew Whitaker is facing new questions, with two prominent attorneys — including the husband of White House counselor Kellyanne Conway — suggesting that it may be illegal.

Why it matters: Axios spoke to multiple legal experts and former Justice Department officials who say they can’t remember a similar case where someone not confirmed by the Senate has been named as acting attorney general. They have different interpretations of the laws, but they agree that the naming of Whitaker is in uncharted legal territory and leaves room for challenges to the legality — and constitutionality — of Trump’s actions.

What they’re saying: Attorneys Neal Katyal and George Conway called Trump’s action illegal in an op-ed published in the New York Times Thursday afternoon. They say the Constitution requires that anyone serving as attorney general be confirmed by the Senate.

The details: While the Vacancies Reform Act gives the president the power to choose a temporary replacement for attorney general (as long as the attorney general was not fired), the Constitution dictates that anyone serving in a “principal role” must be confirmed by the Senate.

Here are the legal and constitutional issues raised by the Whitaker appointment

>1. The Attorney General Succession Act, Section 508, stipulates that when there is a vacancy in the office of the attorney general, the deputy attorney general — currently Rod Rosenstein — can serve as the attorney general. Next in line would be the associate attorney general.

2. The Federal Vacancies Reform Act of 1998 allows the president to choose any senior DOJ official to serve as an acting attorney general as long as that person has already served in a high-level position for 90 days. Whitaker qualifies for the temporary position under this Act.

  • There have been arguments on both sides over whether the act supplants the AG succession law, John Bies, former deputy assistant attorney general in the office of legal counsel, told Axios.
  • “I think it’s pretty clear under the terms of the statute itself that [Trump] has authority … to appoint someone who is a senior DOJ official,” he said.
  • “The Vacancy Act has precedence [over the Succession Act] when the president picks someone under that procedure,” another DOJ lawyer texted us.

(…)

Even John Yoo, a law professor at the University of California-Berkeley who helped the George W. Bush administration draft its expansive claims to executive power, says the Whitaker appointment may be out of line.

“The Constitution says that principal officers must go through appointment with the advice and consent of the Senate. In Morrison v. Olson, the Supreme Court made clear that the Attorney General is a principal officer. Therefore, Whittaker cannot serve as acting Attorney General despite the Vacancies Act (which does provide for him to be acting AG) — the statute is unconstitutional when applied in this way.”

— John Yoo in an email

The most persuasive argument regarding Whittaker’s appointment, though, is made today in New York Times Op-Ed co-authored by Neal Katyal, who served for a time as Solicitor General under President Obama, and George Conway, the conservative lawyer who happens to be the husband of top Trump aide Kellyanne Conway and who has become one of the President’s strongest legal critics on social media and elsewhere:

Much of the commentary about Mr. Whitaker’s appointment has focused on all sorts of technical points about the Vacancies Reform Act and Justice Department succession statutes. But the flaw in the appointment of Mr. Whitaker, who was Mr. Sessions’s chief of staff at the Justice Department, runs much deeper. It defies one of the explicit checks and balances set out in the Constitution, a provision designed to protect us all against the centralization of government power.

If you don’t believe us, then take it from Supreme Court Justice Clarence Thomas, whom Mr. Trump once called his “favorite” sitting justice. Last year, the Supreme Court examined the question of whether the general counsel of the National Labor Relations Board had been lawfully appointed to his job without Senate confirmation. The Supreme Court held the appointment invalid on a statutory ground.

Justice Thomas agreed with the judgment, but wrote separately to emphasize that even if the statute had allowed the appointment, the Constitution’s Appointments Clause would not have. The officer in question was a principal officer, he concluded. And the public interest protected by the Appointments Clause was a critical one: The Constitution’s drafters, Justice Thomas argued, “recognized the serious risk for abuse and corruption posed by permitting one person to fill every office in the government.” Which is why, he pointed out, the framers provided for advice and consent of the Senate.

What goes for a mere lawyer at the N.L.R.B. goes in spades for the attorney general of the United States, the head of the Justice Department and one of the most important people in the federal government. It is one thing to appoint an acting underling, like an acting solicitor general, a post one of us held. But those officials are always supervised by higher-ups; in the case of the solicitor general, by the attorney general and deputy attorney general, both confirmed by the Senate

(…)

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. His job as Mr. Sessions’s chief of staff did not require Senate confirmation. (Yes, he was confirmed as a federal prosecutor in Iowa, in 2004, but Mr. Trump can’t cut and paste that old, lapsed confirmation to today.) For the president to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document.

In times of crisis, interim appointments need to be made. Cabinet officials die, and wars and other tragic events occur. It is very difficult to see how the current situation comports with those situations. And even if it did, there are officials readily at hand, including the deputy attorney general and the solicitor general, who were nominated by Mr. Trump and confirmed by the Senate. Either could step in as acting attorney general, both constitutionally and statutorily.

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.

While there has been some pushback on the arguments that Katayal and Conway make in this Op-Ed from the Administration’s supporters, none of them has been nearly as persuasive as the argument that they make here. Regardless of the fact that Whittaker’s appointment in place of Rosenstein or some other Justice Department employee who has undergone Senate confirmation may conform to the provisions of the Vacancies Reform Act, it appears to be clear that those provisions of the act that allow the President to fill the position of Attorney General with someone who has not been considered and confirmed by the Senate. For one thing, the appointments clause of the Constitution quite obviously trumps an Act of Congress so even if it were true

In response to this while leaving the White House this morning, President Trump raised two rather irrelevant points.

The first is that Whittaker was confirmed by the Senate back in 2004 when he was appointed as the United States Attorney for Iowa, a position that he served in for President George W. Bush’s second term and the first nine months of President Obama’s term. While that is true, it’s irrelevant to the question of whether he has undergone Senate confirmation for the position he holds now as Acting Attorney General. Second, that confirmation occurred 14 years ago and hardly covers those parts of Whittaker’s record that have come to light since then. Finally, being confirmed to be a United States Attorney is hardly the same thing as undergoing the kind of scrutiny necessary for a position as important as Attorney General. This is especially true given the questions that have been raised regarding Whittaker’s previous position regarding Special Counsel Robert Mueller’s Russia investigation, an area that would be of obvious interest to members of the Senate in general and the Senate Judiciary Committee in particular but about which they have not been able to ask Whittaker, who has now assumed supervision of the investigation, prior to him taking his current position. Therefore, Whittaker’s previous confirmation is irrelevant to the present issues.

Trump’s second argument to reporters was, if anything even more bizarre and irrelevant:

President Trump intensified his attacks on special counsel Robert Mueller by suggesting he lacks legitimacy because he was not confirmed by the U.S. Senate.

When Trump was asked about the constitutionality of appointing Matthew Whitaker acting attorney general without Senate confirmation, Trump, speaking to reporters on the South Lawn at the White House, pointed out that Mueller had not been confirmed by the Senate as special counsel.

“Mueller is doing a report, he hasn’t gone through the Senate process, so you’re saying Whitaker hasn’t? But Whitaker has. He was a really distinguished U.S. attorney in Iowa, and he was approved by everybody,” Trump said.

Mueller was confirmed as FBI director by the Senate with a 98-0 margin in 2001 and the law later changed to extend his 10-year term. In 2011, the Senate voted unanimously to extend Mueller’s tenure for an additional two years. Whitaker was confirmed by the Senate in 2004 as a federal prosecutor in Iowa.

Trump added: “Mueller – a big complaint people have – Mueller was not Senate confirmed. So he’s doing a report. He wasn’t Senate confirmed. Whitaker was Senate confirmed.”

“But Mueller was not Senate confirmed. Why didn’t they get him Senate confirmed? He should have been Senate confirmed, but because of all the conflicts they didn’t want to bring him before the Senate because he’s very conflicted, so because of those conflicts they didn’t want to bring him before the Senate,” Trump said.

Trump went on: “But don’t tell me about Whitaker. Don’t tell me about Whitaker because Mueller was not senate confirmed. And Whitaker was.”

Here’s the video of Trump’s comments:

The answer to Trump’s tirade, of course, is that Mueller did not need to be confirmed to his current position by the Senate. As an appointee of Deputy Attorney General Rod Rosenstein, Mueller is essentially a Justice Department employee acting under specific rules of appointment according to Justice Department guidelines. Up until Wednesday, his immediate supervisor was Deputy Attorney General Rosenstein due to the fact that Jeff Sessions had recused himself from any decision making regarding the Russia investigation. Now, with Whittaker acting as Attorney General until a replacement can be confirmed, his immediate supervisor would appear to be Whittaker himself. In any case, there is no law that requires someone in Mueller’s position be confirmed by the Senate so Trump’s comments are, as is typical, irrelevant.

All of this is relevant for reasons that go way beyond the Russia investigation. In the end, every action that the Justice Department takes in court, whether civil or criminal, is taken in the name of the Attorney General. In many cases, the person acting as Attorney General is either the named Plaintiff or Defendant in lawsuits involving the United States and actions taken by the Department, If it turns out that the Justice Department is acting under the authority of someone who is not properly serving as Attorney General who should not be in that position, then this calls into question the legitimacy of every action that the Department of Justice takes from the day Whittaker was appointed going forward. At the very least, this gives every person prosecuted or sued by the Justice Department after that date a ground to argue that the action is illegitimate because it is being conducted under the authority of someone who does not have the authority to act. Depending on how long Whittaker ends up serving, this could end up being a serious headache for the Trump Administration for reaosns that have nothing to do with Robert Mueller.

FILED UNDER: Donald Trump, Law and the Courts, Politicians, U.S. Constitution, US Politics, , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. OzarkHillbilly says:

    The Keystone Kops of Koups.

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  2. Gustopher says:

    While the Vacancies Reform Act gives the president the power to choose a temporary replacement for attorney general (as long as the attorney general was not fired), the Constitution dictates that anyone serving in a “principal role” must be confirmed by the Senate.

    Why is asking for someone’s resignation not the same as firing them?

    I am certain that Jeff Sessions would qualify for unemployment (and he should file for it — he paid into the system, for times like these). By any reasonable definition he would be said to have been fired. One of the old related posts on the right hand side says “Jeff Sessions Fired”…

    Whatever laws and rules were put in place for dealing with a fired AG… this is the situation those laws and rules were put in place for.

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  3. Pylon says:

    I vaguely remember lawsuits about personnel who refused to follow Obama directives because they said he was not entitled to be President (because he’s a Kenyan). I would love some lawyer or agent to refuse an acting AG directive. Maybe even Rosenstein, or Bob M.

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  4. teve tory says:

    “I can tell you Matt Whitaker’s a great guy. I mean, I know Matt Whitaker.”

    -Donald Trump, Fox and Friends, October 11 2018.

    “I don’t know Matt Whitaker.”

    -Donald Trump, multiple times today.

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  5. gVOR08 says:

    Is it one t or two? WIKI does one.
    Gonna be interesting. He’s enough of an ass to suck up to Trump to get the job, but is he dumb enough to commit Obstruction to keep the job?

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  6. Kathy says:

    But now all of the Cheeto’s base will claim the Mueller investigation is unconstitutional because he wasn’t confirmed by the Senate. Never mind Trump, or for that matter everyone indicted and convicted so far, haven’t ended it by claiming it to be unconstitutional, which any of them could have easily done by now.

    This matters because impeachment, as has been noted many times, is a political process. No matter what Mueller finds out in regards to Trump, his supporters can now claim that even if true, it doesn’t matter. Then few GOP Senators will vote against him.

    Nixon must be rolling in his grave. He could have gotten away clean with much worse today.

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  7. charon says:
  8. Teve says:

    @charon: dear god even some GOP congresscritters might not be able to swallow that level of corruption.

    I’ll make the popcorn when I get online tomorrow and read the Trump Chumps humiliating themselves trying to support him. 😛

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  9. Pylon says:

    Whitaker has now made his Twitter account private.

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  10. Scott says:

    Besides questioning the legitimacy of every action because he is not legally appointed, every employee potentially can ignore his authority. This is grounds for chaos. Like everything Trump does, it all goes downhill.

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  11. Kathy says:

    @Pylon:

    Secrecy is Transparency
    Chaos is Order
    Ignorance is Strength

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  12. Mister Bluster says:

    @Gustopher:..I am certain that Jeff Sessions would qualify for unemployment (and he should file for it — he paid into the system, for times like these).

    As I suspected.

    The Unemployment Compensation for Federal Employees program provides benefits for eligible unemployed former civilian Federal employees. … There is no payroll deduction from a Federal employee’s wages for unemployment insurance protection.
    https://workforcesecurity.doleta.gov/unemploy/unemcomp.asp

    Many citizens are under the misconception that there is a deduction from their paychecks that supports their states Unemployment Insurance benefits.
    I have worked in 14 states and have drawn “rockin’ chair money” as it is affectionalty known by it’s recipients, based on wages earned in many of them. None of my several employers ever deducted any withholding for UE.
    I have also been an employer. That is when my DBA paid into the state UE fund to cover benefits that might be paid out to any of the people working for “me”.
    Unemployment Insurance Benefits are paid for by employers.
    At times of high unemployment, the Federal Govt. will fund extended benefits. I’m pretty sure this money comes out of the Federal Treasury.

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  13. OzarkHillbilly says:

    @Mister Bluster:

    Unemployment Insurance Benefits are paid for by employers.

    Using money that otherwise could have gone to their employees but most likely would have gone into their pockets because PROFITS!!!!

    It doesn’t really matter. I earned that unemployment insurance with every damn drop of sweat and blood, same as I earned my pay, my health insurance, my vacation pay, etc etc etc.

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  14. Joe says:

    Just wanna remind everybody, I called this the day Whitaker was appointed. More importantly, Politico reported that the appellate judges who are hearing an argument that Mueller’s appointment was unconstitutional on these grounds have asked the parties to state their positions on Whitaker. How does that defendant (Carter Page’s associate) argue that Mueller is unconstitutional but Whitaker is ok? Briefs due in a couple of weeks. Should be interesting.

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  15. gVOR08 says:

    @OzarkHillbilly: In Econ it’s called “incidence”, which is who’s pocket, at the end of the day, had less money in it. Which may not be who signed the check.

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  16. GRITS says:

    When the Ag resigns the President can appoint whoever he wants temporarily. He can serve only 120 days and doesn’t not have to be approved by congress. Whitaker is no more bias than Rod Rosentein who has overseen this massive witch hunt. Rod signed the last request for the FISA which he knew was based on a FAKED dossier. He is more tainted because he was involved. All Whitaker just voiced his opinion, but he sure as hell wasn’t involved. Rosenstein should have been fired a long time ago. Trump has let the mess go on as long as it has because the longer it goes the more crimes of those involved comes out. There is a day of reckoning coming I hope and the Swamp is cleaned out.

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  17. @GRITS:

    Sessions did not resign. He was quite clearly fired. That is a significant difference as far as the applicable law is concerned.

    Additionally, the law must take a back seat to the Constitution, which requires that the heads of Executive Branch departments to be confirmed by the Senate. This means that anyone acting in a temporary capacity must also have been confirmed by the Senate even if it was for another position. This further means that the only person who can legally replace Sessions is Rod Rosenstein, the Deputy Attorney General, or one of the other DoJ officials who have actually been confirmed by the Senate.

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  18. Federalist45 says:

    @Doug Mataconis: Asked or not, legally he resigned.

    ReplyReply

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