After forcing Jeff Sessions to resign as attorney general on November 7, President Trump appointed Matthew Whitaker as acting attorney general, even though Deputy Attorney General Rod Rosenstein was next in line for the job. As a result, Whitaker assumed the functions of attorney general.

Whitaker’s appointment was an illegal and blatant end run around the Attorney General Succession Act and the Appointments Clause of the Constitution. Whitaker must be removed and Rosenstein should be appointed acting attorney general.

Trump’s firing of Sessions and replacement with Whitaker appears to be an effort to terminate or dilute special counsel Robert Mueller’s investigation into ties between Russia and the Trump election campaign. Infuriated after Sessions recused himself from the Russia investigation and Rosenstein appointed Mueller as special counsel, Trump had been champing at the bit to replace Sessions with an attorney general who would have his back. As acting attorney general, Whitaker will assume authority over the Mueller probe.

However, legal challenges to Whitaker’s appointment are mounting. Three senators have filed litigation to prevent Whitaker from carrying out the functions of attorney general. The state of Maryland has requested an injunction to remove Whitaker and substitute Rosenstein as acting attorney general. Moreover, a group of Congress members wrote to the Justice Department’s ethics officer demanding Whitaker’s recusal from the Russia investigation.

The Appointments Clause of the Constitution Requires Senate Confirmation

The Appointments Clause, located in Article II, Section 2, Clause 2 of the Constitution, mandates that principal officers of the United States be nominated by the president and confirmed by the Senate.

Alexander Hamilton, in “Federalist 76,” outlined the rationale for the Senate confirmation requirement:

It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. … He would be … afraid to bring forward … candidates who had no other merit than that … of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.

Indeed, Whitaker’s primary qualification for the job is his loyalty to Trump, including his disdain for the Mueller investigation, support for the firing of former FBI Director James Comey and defense of Donald Trump Jr.’s Trump Tower meeting with a Russian operative during the presidential campaign.

Since the Senate has not given its advice and consent to Whitaker’s appointment, it remains illegal. That means that anything Whitaker does or tries to do as acting attorney general is invalid, including ending or impeding the Mueller probe.

The Attorney General Succession Act Requires Appointment of Rosenstein

The attorney general is the chief law enforcement officer of the United States. He or she supervises government officials whom the Senate has confirmed as well as the special counsel, appoints immigration judges, decides when to enforce federal statutes and authorizes national security warrants.

Under the Attorney General Succession Act (AGSA), when the office of attorney general is vacant, the deputy attorney general is next in line to take over. Rosenstein, the deputy attorney general, was confirmed by the Senate to that post. He should be named acting attorney general.

On November 14, the Justice Department’s Office of Legal Counsel wrote a 20-page opinion purporting to justify Whitaker’s appointment by citing the Vacancies Reform Act (VCA), which states that the president can order an officer or employee of an executive agency to assume the functions of a vacant office.

However, it is a well-established rule of statutory construction that when a specific statute and a general statute both apparently apply, the specific statute takes precedence. While the VCA covers vacancies in general, the AGSA specifically applies to the vacancy of the attorney general. Thus, the AGSA is the statute that must be followed in this case, and it mandates that Rosenstein fill the vacancy created by Sessions’s resignation.

Even if the VCA could prevail over the AGSA in this situation, the Constitution’s Appointments Clause would still nullify Whitaker’s appointment, because a congressional statute does not trump the Constitution.

Legal Challenges to Whitaker’s Appointment

On November 19, Senators Richard Blumenthal (D-Connecticut), Sheldon Whitehouse (D-Rhode Island) and Mazie Hirono (D-Hawaii) filed a lawsuit against Whitaker and Trump in the United States District Court for the District of Columbia.

They are asking the district court for a declaratory judgment stating that Whitaker and Trump are violating the Appointments Clause. The senators also request an injunction preventing Whitaker from performing the functions and duties of the office of the attorney general.

The three senators claim that Whitaker’s appointment illegally deprives them of the right to vote on confirmation as required by the Appointments Clause. The senators wrote that they and their Senate colleagues should “have the opportunity to consider [Whitaker’s] espoused legal views, his affiliation with a company that is under criminal investigation for defrauding consumers and his public comments criticizing and proposing to curtail ongoing DOJ investigations that implicate the President.”

Blumenthal, Whitehouse and Hirono note that as acting attorney general, Whitaker “would have vast ability to shape whether and how the laws enacted by Congress are enforced and the money appropriated by Congress is spent. He would also have a critical role in upholding the Constitution of the United States and ensuring equal justice under the law for all Americans.”

Moreover, they add, “unless and until he recuses himself, Mr. Whitaker would have supervisory power over at least two federal investigations related to the President.”

Attorney Tom Goldstein is raising similar legal challenges to Whitaker’s appointment in two cases, one brought by the state of Maryland involving the constitutionality of the individual mandate in the Affordable Care Act (ACA). The other challenge was filed on behalf of the petitioner in Michaels v. Sessions, a gun rights case.

Maryland is asking the US District Court for the District of Maryland to order that Rosenstein is the acting attorney general and requesting that the court substitute Rosenstein (instead of Whitaker) for Sessions as the proper attorney general defendant in the pending ACA lawsuit.

The petitioner in Michaels v. Sessions is also asking that Rosenstein be substituted for Sessions, this time in a petition for certiorari to the US Supreme Court. Barry Michaels is requesting the high court review the lower court’s denial of his challenge to the constitutionality of the federal ban on possession of firearms for those convicted of felonies.

On November 11, Nancy Pelosi (House Democratic leader), Charles Schumer (Senate Democratic leader), Jerrold Nadler (ranking member, House Judiciary Committee), Dianne Feinstein (ranking member, Senate Judiciary Committee), Adam Schiff (ranking member, House Intelligence Committee), Mark Warner (vice chairman, Senate Intelligence Committee) and Elijah Cummings (ranking member, House Oversight and Government Reform Committee) sent a letter to Lee Loftus, assistant attorney general for administration and designated agency ethics officer.

In the letter, the congressional leaders raised “serious ethical considerations” requiring Whitaker’s “immediate recusal from any involvement” with the Mueller investigation. They cited Whitaker’s “history of hostile statements” toward the Mueller probe, including “televised statements suggesting that the investigation be defunded or subjected to strict limitations in scope.” The legislators wrote that Whitaker “appears to have troubling conflicts of interest that may also require his recusal.”

Trump’s cynical end run around the Appointments Clause and the Attorney General Succession Act cannot stand. Whitaker’s appointment as acting attorney general must be vacated and Rosenstein named acting attorney general. It is essential that the Mueller investigation proceed unimpeded.

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