The constitutional and legal arguments against the appointment of Matthew Whitaker as Acting AG are compelling — even dispositive
Looks like Trump and his Administration of incompetents and know-nothings have screwed up again: this time re the appointment of Matthew Whitaker as Acting AG after the forced resignation of AG Jeff Sessions.
I posted yesterday a NYT oped by Neal Katyal and George Conway, who make a compelling, even dispositive, argument that Whitaker’s temporary appointment is unconstitutional, on the grounds that the appointments clause of the Constitution mandates the Senate’s advice and consent for any principal officer in the federal government. The problem: the Attorney General of the United States is unquestionably a principal and not an inferior officer, and while Whitaker qualifies as a senior officer, he has never been approved by the Senate as a principal officer. On the face of it, therefore, Whitaker is not qualified to serve as AG.
That’s the constitutional argument against the appointment. In the last couple of days a number of legal experts have also weighed in on the issue with another argument, contending that the appointment of Whitaker is invalid according to statutes.
The two statutes involved are 28 U.S. Code § 508, which specifically concerns the Office of the Attorney General; and the more general rule (Vacancies Reform Act) for succession in office (5 U.S. Code § 3345 and 3347).
5 U.S. Code § 3345 (a)(1) provides that in the event of a vacancy (not a firing), “the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity.”
However, 5 U.S. Code § 3345 (a)(2) also provides that — (a)(1) notwithstanding — the president, and only the president, may “may direct a person who serves in an office [Whitaker satisfies this condition] for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity [subject to time limitations I omit here].
5 U.S. Code § 3345 (a)(2) would appear to provide a legal basis for the appointment of Whitaker (and the White House has rested its case for the legality of Whitaker’s appointment on it) — except that there is another part of the code to consider: 5 U.S. Code § 3347, and especially 5 U.S. Code § 3347 (a)(1)(B), which provides that the general provisions of § 3347 do not apply if there is a statutory provision that “expressly designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity.”
The problem for the White House’s appointment of Whitaker is that there is such a statutory provision that specifically applies to the Office of the Attorney General (DOJ): 28 U.S. Code § 508. According to this statute, the Deputy AG [in this case Rod Rosenstein] appears to be designated to perform the “functions and duties” etc. etc. So 28 U.S. Code § 508 bars Trump for jumping over Rosenstein and making a temporary appointment of Whitaker.
Note also that all this is quite apart from the constitutional argument mentioned above, according to which the AG is a principal office holder under the appointments clause of the Constitution, who requires the advice and consent of the Senate for his appointment. There is no language in the appointments clause that provides or even implies an exception for someone acting in a temporary capacity. After all, anyone serving as Acting AG is serving with all the powers and authority of the office, even if it is only for one day.
(This is exactly the argument against the attempt to use 5 U.S. Code § 3345 (a)(2) to override the appointments clause that was made by Justice Clarence Thomas in a SCOTUS opinion some years ago, and yesterday by John Yoo (who years ago served as a clerk for Thomas on SCOTUS).
Hopefully the above will help to make the more detailed arguments that have been made in the last couple of days (see the links below) more intelligible and accessible.
They are worth reading because they explain in more detail how and (very importantly) why the proper reading of the appointments clause of the Constitution and the statutes bars the president (in this case Trump) from having plenary power to make even temporary appointments for high executive offices like that of the Attorney General of the United States.
John E. Bies (Lawfare)
Other legal experts cited by Axios
Judge Andrew Napolitano (Fox News video)
Chris Hayes interview with Neal Katyal (video)
