George Conway has become known for his Twitter habit of criticizing President Donald Trump and his administration. | Chip Somodevilla/Getty Images Legal George Conway: Whitaker acting AG appointment 'makes a mockery of our Constitution'

President Donald Trump’s move to name Matthew Whitaker as acting attorney general following his dismissal of Jeff Sessions is plainly unconstitutional, attorneys Neal Katyal and George Conway argued Thursday, writing in an op-ed published by The New York Times that “Mr. Whitaker’s installation makes a mockery of our Constitution and our founders’ ideals.”

Conway is married to Kellyanne Conway, a senior counselor and close adviser to the president. Katyal served as acting solicitor general in the Justice Department under President Barack Obama.


George Conway is no stranger to publicly opposing White House moves that his wife has supported and defended, and has become known for his Twitter habit of criticizing Trump and his administration.

Conway and Katyal cite the Appointment Clause of the Constitution, which provides that a “principal officer” in the federal government may not be appointed without Senate confirmation, a position held by other skeptics who say Whitaker’s appointment is invalid.

The same argument was once invoked by allies of the president in an attempt to void Robert Mueller’s appointment as special counsel overseeing the investigation into Russian interference in the 2016 election, but because he was reporting to a Senate-confirmed appointee, Deputy Attorney General Rod Rosenstein, he doesn’t fit the “principal officer” criteria of answering to the president and to the president only.

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“Mr. Whitaker has not been named to some junior post one or two levels below the Justice Department’s top job,” the pair wrote. “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.”

The president on Wednesday named Whitaker attorney general on an acting basis using a decades-old law called the Vacancies Reform Act, though an older statutory policy at the Justice Department requires that the deputy attorney general be elevated to attorney general when the position is vacant. Previous administrations have had mixed opinions on whether the newer vacancies law supersedes the order of succession delineated by the older DOJ-specific statute.

Katyal and Conway on Thursday argued that both provisions were moot in Whitaker’s case because of the Appointments Clause.

“For the president to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document,” they said.

That Whitaker is set to take over the job of overseeing the special counsel’s office, which is investigating whether the president’s campaign colluded with Russia’s interference efforts and whether the president obstructed justice over the course of the investigation, is even more reason for him to be subject to vetting and approval by the Senate, Katyal and Conway say.

“The public is entitled to that assurance, especially since Mr. Whitaker’s only supervisor is President Trump himself, and the president is hopelessly compromised by the Mueller investigation,” they wrote.

Critics have pointed to Whitaker’s past criticism of the special counsel’s investigation as cause for concern that he might try to choke off funding for the inquiry or try to clip Mueller’s wings with other restrictions, compared with the wide-ranging mandate he’s been operating under thus far.

Kellyanne Conway on Thursday defended Whitaker’s past statements, telling reporters that she didn’t think he needed to recuse himself because of what he said as a private citizen.

