Sunday, November 18, 2018

Trump's appointment of Matthew Whitaker unlawfully bypasses Senate-confirmed officers

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So funny to see little Adam Schitt [sic] (D-CA) talking about the fact that Acting Attorney General Matt Whitaker was not approved by the Senate, but not mentioning the fact that Bob Mueller (who is highly conflicted) was not approved by the Senate!

There is a long tradition of presidents appointing loyalists as Attorney General.  Robert F. Kennedy and Griffin Bell come immediately to mind as the brother and childhood friends of John Kennedy and Jimmy Carter.  Professor Jed Shugerman has critically explored that history at length in a work in progress.
But there was an important post-Watergate shift which sought to buttress the independence of the office of the Attorney General and the entire Department of Justice from the presidency.  In 1977 the passage of 28  USC 508 governed succession in the Department of Justice in the event of a vacancy of the office of the Attorney General – head of the Department of Justice, itself created in 1870, a subject explored in the Stanford Law Review by Fordham legal historian Shugerman.  
The 1977 Act was preceded by  the 1976 Omnibus Crime Control Act 42 USC 3701 that created a ten year term for the Director of the Federal Bureau of Investigation who must be confirmed by the Senate.  The clear policy thrust is to strengthen independence of the Department of Justice and Attorney General. It is that which is threatened by Mr. Trump’s appointment of Matthew Whitaker as Acting Attorney General to assume oversight of  an investigation of the President himself. I discuss the legality of Trump’s appointment below

Donald Trump's  day after mid-term elections discharge of Attorney General Jefferson Beauregard  Sessions and replacement with a lawyer who has not been vetted by the Senate has generated a tsunami of commentary and challenges.  The appointment of Matthew Whitaker bypassed Deputy Attorney General Rod Rosenstein who has overseen Robert Mueller’s investigations.  Controversy ensued because a statute 28 U.S.C. 508 specifically designates the Deputy as “first assistant” who in the event of vacancy in the office of Attorney General “may exercise all the duties of that office”.

Yet Trump’s decision’s legality has been endorsed by the opinion of the Justice Department’s Office of Legal Counsel.  The OLC, in a comprehensive memorandum,  argues that the President has a choice: follow either the 1977 DOJ succession law § 508, or use the 1998 Vacancies Reform Act, 5 U.S.C. 3345.  In the event a presidential appointee confirmed by the Senate  ”dies, resigns, or is otherwise unable to perform the functions and duties of the office“ the VRA allows the President three choices: fill the vacancy temporarily with the “first assistant”, another Senate confirmed officer, or an employee at the level GS 15 or higher.  Whitaker is in the third category.  By presidential fiat he is now the superior of Senate-confirmed officers, and everyone else in the Department of Justice, including the FBI and special counsel Robert Mueller.

The fundamental legal choice to be made is whether § 508 controls or the VRA offers the president the option to ignore the 1977 DOJ succession law and appoint temporarily an employee (here Sessions' Chief of Staff) to perform all of the duties of the office of the Attorney General.  To make that decision several principles are available: the more specific law (§ 508) overrides the more general - the VRA.  In my view the VRA does not come into play because Sessions did not “resign” but was constructively discharged after months of public Presidential insults and protests, the Constitution mandates the powers office of Attorney General be filled - except perhaps in special circumstances such as emergency - by someone appointed by the President and Confirmed by the Senate.  We think the Constitution provides the touchstone for that choice.

The Constitution in Article II describes the head of a Department as a “ principal Officer”
...[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors (and)… all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress 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.
The Constitution thus provides the answer.  Whitaker is serving as a “principal Officer”.   But he has neither been nominated by the President nor confirmed by the Senate.  The vacancy was created by the President, not by resignation, death, or unavailability of the Attorney General. There is no emergency or special circumstance that justifies putting a mere employee such as Whitaker - in a position superior to the Senate-confirmed and available officers - the Deputy Attorney General and the Solicitor General. The Constitution has made that choice for principal Officers.  Matthew Whitaker should step down and his place be filled by the Deputy Attorney General or other available Senate-confirmed officer.

- George Conk

November 15, 2018

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