Trump’s Appointment of Whitaker As Acting Attorney General Without Senate Confirmation Flouts A Basic Constitutional Protection
My article earlier today argued that President Trump’s appointment of Matthew Whitaker to oversee the Mueller investigation is unethical and requires recusal. Neal K. Katyal (acting solicitor general under President Barack Obama) and George T. Conway III (a litigator at Wachtell, Lipton, Rosen & Katz in New York) make the case in the New York Times that the appointment is also unconstitutional.
Matthew Whitaker speaks during (AP Photo/Charlie Neibergall)
The Appointments Clause of the Constitution, Article II, Section 2, Clause 2, states that “principal officers of the United States” must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.
Katyal and Conway point out that what makes an officer a principal officer is that he or she reports only to the president. The Attorney General reports only to the president and is therefore a principal officer. By contrast, Robert Mueller, the Special Counsel, reports to the Attorney General or his deputy and is therefore what is known as “an inferior officer,” for whom Senate approval is not required. Under the Constitution, which overrides other legislation, a principal officer must be confirmed by the Senate.
This means that Mr. Trump’s nomination of Matthew Whitaker as acting attorney general, with the obvious intent of affecting the Mueller probe, is unconstitutional, i.e. illegal. Anything Whitaker does, or tries to do, in that position is therefore invalid and can be challenged by any litigant with standing.
This is not just a technicality. The appointment of Whitaker flouts one of the explicit checks and balances set out in the Constitution, whose very object is to protect against the rule of law.
Katyal and Conway cite the opinion Justice Clarence Thomas who wrote that the Constitution’s drafters “recognized the serious risk for abuse and corruption posed by permitting one person to fill every office in the government.”
Chief Justice John Roberts, left,and Associate Justice Clarence Thomas, Photographer: Andrew Harrer/Bloomberg
Trump’s appointment of Whitaker is precisely the kind of attempt to evade the Constitution’s very explicit, textually precise design.
Senate confirmation exists for a simple, and good, reason, write Katyal and Conway. Constitutionally, Matthew Whitaker is a nobody. His job as Mr. Sessions’s chief of staff did not require Senate confirmation. (Yes, he was confirmed as a federal prosecutor in Iowa, in 2004, but Mr. Trump can’t cut and paste that old, lapsed confirmation to today.) For the president to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document.
It is possible that in times of crisis, interim appointments need to be made. But even so, if it did, “there are officials at hand, including the deputy attorney general and the solicitor general, who were nominated by Mr. Trump and confirmed by the Senate. Either could step in as acting attorney general, both constitutionally and statutorily.”
Because Mr. Whitaker has not undergone the process of Senate confirmation, write Katyal and Conway, there has been no mechanism for scrutinizing whether he has the character and ability to evenhandedly enforce the law in a position of such grave responsibility. The public is entitled to that assurance, especially since Mr. Whitaker’s only supervisor is Mr. Trump himself, and the president is hopelessly compromised by the Mueller investigation. That is why adherence to the requirements of the Appointments Clause is so important here, and always.
And read also:
Trump: Replacing Sessions With Whitaker Appears To Obstruct Justice
The author is a registered as a political independent.
My new book, «The Age of Agile» was published by HarperCollins in 2018. I consult with organizations around the world on leadership, innovation, management and business narrative. For many years I worked at the World Bank, where I held many management positions, including di…
Steve Denning’s most recent book is The Age of Agile (HarperCollins, 2018)
