A couple of lawyers have written an op ed for the New York Times saying that the appointment ofÂ Matthew Whitaker as acting Attorney General is unconstitutional. The primary issue is that Whitaker has never been confirmed by the Senate to do anything, and apparently this makes him ineligible to be AG, even temporarily.
See alsoÂ Marty Lederman at Just Security:
The Department of Justiceâ€™sÂ formal viewÂ is that the VRA provides the President with anÂ alternativeÂ authority, in addition to the AG Succession Act, to designate who shall perform the AGâ€™s functions and duties during a vacancy in the office. Thus, for example, when AG Alberto Gonzales resigned in 2007, President George W. Bush named the Assistant Attorney General for the Civil Division,Â Peter Keisler, to be the Acting Attorney General, when the AG Succession Order in effect at the time, issued pursuant to the AG Succession Act, would have assigned those functions to the Solicitor General, then Paul Clement.
As far as I know, however, the â€œappointmentâ€ of Whitaker would be the first time in U.S. history that the President has designated as an â€œactingâ€ Attorney General someone who was not then serving in an office to which he or she was appointed by and with the advice and consent of the Senate, and itâ€™d be the first time since 1868â€”i.e., since Congress enacted a specific AG Succession statuteâ€”that the â€œactingâ€ AG would be anyone other than a sitting Senate-confirmedÂ DOJÂ officer.
John Bies writing at Lawfare calls this an unresolved constitutional question.
TheÂ Appointments ClauseÂ of the Constitution provides that the president can nominate, and â€œby and with the Advice and Consent of the Senate,â€ appoint officers of the United States, and further allows that â€œCongress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.â€ Consequently, while the clause permits Congress to authorize the appointment of â€œinferior officersâ€ by the president alone or by the head of a department, it requires that any â€œprincipal officerâ€ be appointed by and with the advice and consent of the Senate.
The attorney generalâ€”a Cabinet-level official who is the head of a major executive department and reports only to the presidentâ€”is plainly a principal officer. The chief of staff to the attorney general, on the other hand, is an inferior officer appointed by the head of a department, and not subject to the Senateâ€™s advice and consent, so Whitaker has not been confirmed to his current position by and with the advice and consent of the Senate. While the FVRA allows the president to appoint another Senate-confirmed official to fill a vacancy, here the president has elected to rely on another FVRA provision that allows him to appoint a senior Department of Justice official who was not Senate-confirmed.
There remains an open question of whether it is constitutional to rely on of the FVRA to appoint an official not serving in a Senate-confirmed position to act as a principal officer, such as the attorney general. Someâ€”including Justice Clarence Thomasâ€”have arguedÂ that an acting principal officer must be appointed in conformance with the Appointments Clause, i.e., by and with the advice and consent of the Senate: â€œAppointing principal officers under the FVRA . . . raises grave constitutional concerns because the Appointments Clause forbids the President to appoint principal officers without the advice and consent of the Senate.â€
Of course, how the current SCOTUS would rule on that is anybody’s guess. The Notorious RGB is in the hospital with rib fractures, btw. I propose we keep her in bubble wrap for a while.
It’s plain as day that Whitaker was chosen to shut down the Mueller investigation. He’s expressed hostility to it and says he won’t recuse himself from it. There appears to be a difference of opinion among legal experts whether Whitaker would be guilty of obstructing justice if he shut down the investigation.
Letâ€™s face it. Mueller has known from the start that Trump might fire (or order someone else to fire) him. Â Thereâ€™s no way Mueller would be blindsided. Mueller, a veteran prosecutor, has always been a step ahead of Trump; when the state prosecutions ramp up, Trump will have no power to either inhibit them or to shield himself from the consequences. As weâ€™ve discussedÂ before, the Attorneys General of New York and California have already made significantÂ headwayÂ in filling in any prosecutorial gaps left by a Mueller firing.
In other news, yesterday CNN’s Jim Acosta was banned from the White House for doing his job, and today Sarah “Mouth of Sauron” Sanders released a doctored video that purported to show Acosta being aggressive with a woman intern who was attempting to take a microphone away from him while he was asking questions of The Creature. No shame. Various people are calling for the White House Press Corp to boycott White House briefings, which are all a pack of lies anyway.
People are so upset about the Attorney General situation that a mass shooting in California barely made headlines. The shooter is a former marine, and this may be one of those rare times in which the perp really did have mental health proplems.Â The weapon used was a .45-caliber handgun with an “extended magazine,” which I’m taking to mean it was a semiauto.