Outside the Beltway

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.

Doug Mataconis · Friday, November 9, 2018 · 18 comments

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 Whitaker, 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 Whitaker’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 Whitaker’s appointment, though, is made today in a 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 Whitaker’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 allows the President to fill the position of Attorney General with someone who has not been considered and confirmed by the Senate do not comply with the Constitution. For one thing, the appointments clause of the Constitution quite obviously trumps an Act of Congress so even if it were true that Whitaker’s appointment did comply with the Vacancies Reform Act the provisions of the Constitution would override that argument. For another, the idea that someone has high-ranking in the government as the Attorney General can, even for a temporary period of time, be held by someone who was not confirmed by the Senate goes against the idea of the check and balance that the Appointments Clause was meant to put in place. Therefore, it strikes me that Conway and Kaytal have the better argument here.

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

The first is that Whitaker 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 Whitaker’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 Whitaker’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 Whitaker, 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:

pic.twitter.com/rGmlcwkaoE

— TPM Livewire (@TPMLiveWire) November 9, 2018

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 Whitaker acting as Attorney General until a replacement can be confirmed, his immediate supervisor would appear to be Whitaker 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 Whitaker 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 Whitaker ends up serving, this could end up being a serious headache for the Trump Administration for reasons that have nothing to do with Robert Mueller.