Trump’s Appointment of the Acting Attorney General Is Unconstitutional
S E E D E D C O N T E N T
What now seems an eternity ago, the conservative law professor Steven Calabresi published an op-ed in The Wall Street Journal in May arguing that Robert Mueller’s appointment as special counsel was unconstitutional. His article got a lot of attention, and it wasn’t long before President Trump picked up the argument, tweeting that “the Appointment of the Special Counsel is totally UNCONSTITUTIONAL!”
Professor Calabresi’s article was based on the Appointments Clause of the Constitution, Article II, Section 2, Clause 2. Under that provision, so-called principal officers of the United States must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.
He argued that Mr. Mueller was a principal officer because he is exercising significant law enforcement authority and that since he has not been confirmed by the Senate, his appointment was unconstitutional. As one of us argued at the time, he was wrong. What makes an officer a principal officer is that he or she reports only to the president. No one else in government is that person’s boss. But Mr. Mueller reports to Rod Rosenstein, the deputy attorney general. So, Mr. Mueller is what is known as an inferior officer, not a principal one, and his appointment without Senate approval was valid.
But Professor Calabresi and Mr. Trump were right about the core principle. A principal officer must be confirmed by the Senate. And that has a very significant consequence today.
It means that Mr. Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.
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.
Mr. Whitaker has not been named to some junior post one or two levels below the Justice Department’s top job. He has now been vested with the law enforcement authority of the entire United States government, including the power to supervise Senate-confirmed officials like the deputy attorney general, the solicitor general and all United States attorneys.
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.
As we wrote last week, the Constitution is a bipartisan document, written for the ages to guard against wrongdoing by officials of any party. Mr. Whitaker’s installation makes a mockery of our Constitution and our founders’ ideals. As Justice Thomas’s opinion in the N.L.R.B. case reminds us, the Constitution’s framers “had lived under a form of government that permitted arbitrary governmental acts to go unchecked.” He added “they knew that liberty could be preserved only by ensuring that the powers of government would never be consolidated in one body.”
We must heed those words today.
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Trump claimed today that Whitaker 'was confirmed by Congress' and then went on to claim that Mueller wasn't.
I guess Trump forgot that Mueller WAS confirmed by Congress as the Director of the FBI.
dementia?
Ya, Whitaker was a US Attorney in Iowa.
Then there's Mueller:
Wonder why Grassley held a confirmation hearing for Mueller when he was nominated to lead the FBI since he had already been confirmed for all of those other positions? Hmmmm
I don't give Trump the credit for having the excuse of dementia, he's just an idiot.
trmp also said he doesn't know Whitaker.
How the hell can he claim Whitaker was confirmed and Mueller wasn't? He knows damn good and well he appointed Whitaker after seeing Whitaker sing his praises on TV.
Mueller doesn't have to be confirmed because he was appointed by Deputy AG Rosenstein WHO was confirmed by Congress
Is Congress in session? This falls under RECESS APPOINTMENTS, which do not require Senate approval.
"What makes an officer a principal officer is that he or she reports only to the president. No one else in government is that person’s boss. But Mr. Mueller reports to Rod Rosenstein, the deputy attorney general. So, Mr. Mueller is what is known as an inferior officer, not a principal one, and his appointment without Senate approval was valid.
But Professor Calabresi and Mr. Trump were right about the core principle. A principal officer must be confirmed by the Senate. And that has a very significant consequence today.
It means that Mr. Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid."
And that's coming from Kellyanne Conways husband.
Further problems exist with this in regards to the use of a recess appointment as there are already rules in place for when an attorney general is unable to serve.
"More difficult is the question of whether the Department of Justice’s specific succession statute can be supplanted by a presidential appointment under the FVRA (Federal Vacancies Reform Act). Section 508 directly addresses Justice Department succession and provides that “[i]n case of a vacancy in the office of Attorney General, ... , the Deputy Attorney General may exercise all the duties of that office.” The statute further provides that if both the attorney general and the deputy attorney general are unavailable or unable to serve, the associate attorney general “shall act” as attorney general . The statute also authorizes the attorney general to “designate” the solicitor general and the various assistant attorney generals in “further order of succession.” Under the current attorney general order, the solicitor general is next in the line of succession. Currently there is a confirmed deputy attorney general—Rod Rosenstein—but not a confirmed associate attorney general. Section 508 consequently provides that upon the vacancy in the office of attorney general caused by Sessions’s resignation, Deputy Attorney General Rod Rosenstein “may exercise all the duties” of the attorney general.
Even Fox News legal commentator Judge Andrew Napolitano on Thursday said the appointment of Whitaker "does not qualify under the law".
I have been saying this for days, yet no one seems to be doing anything about it.
IOKIYAR
Where in the Constitution does it say an "interim" AG needs to be confirmed? Just asking the experts here.
Instead of running the question past the Supreme Court, perhaps the Trump Administration should just get busy confirming either Trey Gowdy or Chris Christie...two no nonsense types of prosecutors, since they appear to have the sufficient numbers in the Senate to do so.
READ the seed Greg. Sheesh.
So in the meantime, Trump just gets to violate the Constitution?
Trey Gowdy is a partisan hack who was an utter failure as a legislator. He is on record as a neocon. He couldn't run the House Select Committee on Benghazi, which leaked like a sieve.
Oh and I don't think Trump would like this statute that he tried to get through Congress.
https://en.wikipedia.org/wiki/ENFORCE_the_Law_Act_of_2014_(H.R._4138;_113th_Congress)
Christie and Trump have a 'history'. I think that once Christy got close to Trump, he figured out that he was a fraud...Trump fired him.
Oh and let's not forget, Christy put Jarod's daddy in prison...AWKWARD!
BTW, in Trump's scenario, neither would need to be confirmed because they already have been all those years ago...
Trey Gowdy has a new title, Former Comgressman. "Bye Bye"...
Who was the person whose staff was always leaking things from that Committee? Oh, yes, the ranking member at the time: Elijah Cummings. Gowdy couldn't punish Cummings for anything as he was not the Ethics Committee nor the House Democratic leadership.
You KNOW this how tom? Link PROOF.
Utter BULLSHIT.
First of all, if Gowdy [or anyone else for that matter] had evidence that Cummings leaked classified documents, he could have and should have referred it to the DOJ.
Secondly, one need not be a member of the Ethics Committee to file a complaint. In FACT, one need not be in Congress to do so...
Get educated.
I said Gowdy couldn't do anything to Cummings on his own as he didn't have the power to remove him from his position on the committee or punish him since he did not have any power to do so. Filing a complaint against Cummings is not a special power that the chairman of a committee has as you pointed out, it is a power anyone has.
I was looking for any sort of Ethics complaint against Elijah Cummings, but there was not even the one that the founder of True the Vote was going to file against him for trying to intimidate her in 2014 over the IRS scandal.
I'm just very surprised by that.
You're back peddling with a total rewrite of your comment. Like I said, your prior version was bullshit and this new one misrepresents what you said in your first comment.
You shouldn't be. The neocons and now the neo nationalists are well known for making false PUBLIC accusations and never actually following up by utilizing the venues they have for redress.
Just look at the FACT that Rick Scott came out yesterday with a plethora of utterly false accusations yet when his lawyers had the chance to raise them in court, NOT a peep about 'fraud' or 'investigating election officials'.
I think they are surprised that it isn't that easy to get a board certified lawyer to LIE to the court...
BTW tom, where is your link to the proof of your salacious allegation against Congressman Cummings? Or are you one that just pulls crap like that out of your nether regions with the sole intent of maligning someone you disagree with?
Wow...remember when so many on the right claimed he would NEVER fire Sessions.....now we're arguing about the CONSTITUTIONALITY of him hiring Sessions replacement because he did the exact thing the right claimed he would never do!
Anyone on the right want to double down on there's no way he'll fire Mueller again?
Okay, what has Sessions done to keep the job? He has spent almost all of his time as Attorney General pretending to be the Secretary of Homeland Security and talking about immigration law instead of overall law and justice. Frankly, he should have been fired for NOT DOING HIS JOB.
Wow, you neo-nationalists just can't be satisfied.
From the day he took office at the DOJ, Sessions systematically revoked any and every policy instituted by the Obama Administration. One thing Trump has NEVER bitched about is that Sessions refused to institute his hard line on crime.
BTFW, the VAST majority of Trump's talking points on crime are immigrant based. So it isn't surprising that Sessions started writing anti-immigrant memos from the get go.
Why first principles suggest that Matthew Whitaker's acting appointment is invalid, but precedent and practice might suggest the opposite
It is a rather unsettled question as to whether his appointment is unconstitutional/illegal.