Outside the Beltway

Democratic Senators Sue Matthew Whitaker, Asserting His Appointment Is Unconstitutional

Three Democratic Senators are suing the Acting Attorney General, asserting that his appointment was unconstitutional.

Doug Mataconis · Wednesday, November 21, 2018 · 12 comments

Three Democratic Senators have filed a lawsuit against Acting Attorney General Matthew Whitaker, who was appointed by President Trump after he fired former Attorney General Jeff Sessions, alleging that his appointment without Senate confirmation is unconstitutional:

WASHINGTON — Three Democratic senators asked a Federal District Court judge on Monday to issue an injunction barring Matthew G. Whitaker from exercising the powers of head of the Justice Department, arguing that President Trump’s installation of Mr. Whitaker as acting attorney general violated the Constitution.

The senators — Richard Blumenthal of Connecticut, Mazie K. Hirono of Hawaii and Sheldon Whitehouse of Rhode Island — sit on the Judiciary Committee, which conducts confirmation hearings for attorney general nominees. They argued that an official who had not been Senate-confirmed could not run the Justice Department, even temporarily.

“Because the Senate has not consented to Mr. Whitaker serving as an officer of the United States, his designation by the president to perform the functions and duties of the attorney general violates the Appointments Clause” of the Constitution, the complaint said. “If allowed to stand, Mr. Whitaker’s appointment would create a road map for the evasion of the constitutionally prescribed Senate advice-and-consent role.”

The lawsuit was the latest effort by critics of Mr. Trump’s move, which followed his ousting of Attorney General Jeff Sessions this month, to temporarily install Mr. Whitaker in his place as the nation’s top law-enforcement official. Without control of either chamber of Congress — they will take over the House of Representatives in January — Democrats have few other tools to apply pressure for now.

Mr. Whitaker, whom the White House previously installed as Mr. Sessions’s chief of staff, is widely seen as a Trump loyalist. His powers now include supervising Robert S. Mueller III, the special counsel running the investigation into whether Mr. Trump’s associates conspired with Russia when it interfered in the 2016 election. Mr. Whitaker has been an outspoken critic of that investigation. He has separately come under scrutiny for his role with a company that a federal judge shut down for defrauding its customers.

In an interview with Fox News that aired on Sunday, Mr. Trump claimed that he did not know that Mr. Whitaker had criticized the Russia investigation before he designated him acting attorney general, circumventing Deputy Attorney General Rod J. Rosenstein. Mr. Trump also said he would not stop Mr. Whitaker if he decided to limit or curtail the investigation.

Last week, litigants in two pending, unrelated lawsuits against Mr. Sessions in his official capacity submitted motions asking judges to declare that by law, Mr. Rosenstein should be his rightful acting successor and so his name, not Mr. Whitaker’s, should be substituted as the defendant in the litigation. One such motion was filed in the Federal District Court for the District of Maryland, and the other in the Supreme Court.

The new lawsuit, filed in the Federal District Court for the District of Columbia, was brought on behalf of the senators by two watchdog groups, Protect Democracy and the Constitutional Accountability Center. They maintained that the lawmakers had legal standing because their constitutional authority to cast confirmation votes for senior government officials had been nullified.

“If the practice undertaken in this matter is upheld, it creates a road map for deliberately going around the constitutional requirement for advice and consent,” Mr. Whitehouse said in an interview.

The case was assigned to Judge Trevor N. McFadden, a Trump appointee.

The Justice Department last week disclosed an Office of Legal Counsel memo arguing that Mr. Whitaker’s temporary appointment was lawful under the Vacancies Reform Act of 1998. It also cited an 1898 Supreme Court opinion and numerous historical examples in support of the proposition that an office whose holder must normally be Senate-confirmed can be temporarily filled by an acting official who has not gone through the confirmation process.

“There are over 160 instances in American history in which non-Senate-confirmed persons performed, on a temporary basis, the duties of a Senate-confirmed position,” Kerri Kupec, a Justice Department spokeswoman, said in a statement on Monday. “To suggest otherwise is to ignore centuries of practice and precedent.”

The Justice Department memo pointed to various examples of such a temporary appointment dating back to the earliest days of American history, although it acknowledged that there was very little precedent for an acting attorney general who did not undergo confirmation. There was such an acting attorney general in 1866 for several days, but that was before Congress had created a Justice Department for that official to supervise.

In an interview, Mr. Blumenthal said that most of the historical examples the administration had cited involved short-term appointments demanding immediate attention whose constitutional legitimacy was never tested in court. He also argued that the attorney general’s special powers set that office apart.

“In modern times, this kind of appointment is unprecedented, certainly for an office of this importance,” he said.

More from The Washington Post:

Three Democratic senators are filing a lawsuit challenging the constitutionality of President Trump’s appointment of Matthew G. Whitaker to serve as acting attorney general, in the latest move by lawmakers to protect the probe being led by special counsel Robert S. Mueller III.

Sens. Richard Blumenthal (Conn.), Sheldon Whitehouse (R.I.) and Mazie Hirono (Hawaii) filed a complaint Monday in the U.S. District Court for the District of Columbia. The complaint asks the court to declare Trump’s appointment of Whitaker as unconstitutional and to block him from his current role.

“Installing Matthew Whitaker so flagrantly defies constitutional law that any viewer of School House Rock would recognize it,” Blumenthal said in a statement, a reference to the educational series. “Americans prize a system of checks and balances, which President Trump’s dictatorial appointment betrays.”

In a joint news release announcing the move, the senators said they are being represented in the case by the nonprofit law firms Protect Democracy and the Constitutional Accountability Center,

(…)

Whitaker’s appointment also faces a lawsuit filed by Maryland Attorney General Brian E. Frosh (D) as well as a Supreme Court filing by lawyer Thomas C. Goldstein.

Whitaker’s appointment, which violated typical procedure upon the removal or resignation of a Cabinet official, under which the duties of the Cabinet Secretary would be taken over by the next-ranking official who had been confirmed by the Senate, has been controversial from the start for both political and legal reasons. Politically, the controversy arises due to the existence of the Mueller investigation. Ordinarily, Sessions would have been replaced, at least temporarily, by Deputy Attorney General Rod Rosenstein, who, like Sessions, was confirmed by the Senate. Rosenstein, of course, is the person who hired Mueller to begin with and who had been supervising his investigation from the beginning due to the fact that former Attorney General Sessions had recused himself due to his involvement with the Trump campaign and his own contact with Russian officials during the course of the Presidential campaign. Whitaker’s appointment is important in this respect because, prior to being named as Sessions’ Chief of Staff, Whitaker had been a frequent critic of the Mueller investigation as a pro-Trump talking head on various cable news outlets, suggesting on more than one occasion that he believed Trump should fire Mueller and bring an end to the investigation. Since Whitaker is not recused, the responsibility for supervising the investigation reverted to him once he took office, meaning he could theoretically shut down or severely limit Mueller’s investigation if he chose to do so and assuming he could establish a basis for doing so under the relevant Justice Department guidelines.

In addition to these political concerns, though, there have been Constitutional concerns raised regarding the legitimacy of Whitaker’s appointment even as Acting Attorney General due to the fact that he has not been confirmed by the Senate. Within days after the appointment, several legal analysts, including several conservatives, have raised serious doubts about the constitutionality of Whitaker’s appointment. Perhaps the most persuasive of these arguments were set forth in a New York Times Op-Ed co-authored by former Solicitor General under President Obama Neal Kaytal and conservative lawyer George Conway, the husband of Trump Senior Adviser Kellyanne Conway. In their piece, Kaytal and Conway make reference to a recent Supreme Court opinion on the issue of appointments to Executive Branch agencies of people who have not been confirmed by the Senate:

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.

This is largely an issue that the Federal Courts have not dealt with before, so anyone who claims to know how a Federal Court will rule in a case like this is basically just engaging in guesswork. As I said, I think that the arguments against Whitaker’s appointment are far more persuasive than those in favor of it. Whether the courts will agree remains to be seen.

Here’s the Complaint:

Blumental Et Al v. Whitaker… by on Scribd