There has been no shortage of the usual histrionics following President Trump’s appointment of Matthew Whitaker, chief of staff to the recently ousted Attorney General Jeff Sessions, to serve in the interim as the nation’s top law enforcement agent.
Luckily, for those of us who want nothing more than a law-based explainer on why the appointment is unconstitutional, attorneys Neal K. Katyal and George T. Conway III cut through the noise this week with the most reasonable and convincing argument yet for why Whitaker is ineligible. That Conway is also married to White House counselor Kellyanne Conway doesn’t detract from the merits of his argument. It just guarantees that Thanksgiving will be extra-awkward this year.
The short of it is this: A nonconfirmed public officer cannot serve as attorney general in any capacity, because it violates the check provided by the U.S. Senate’s role to give advice and consent.
“A principal officer must be confirmed by the Senate. And that has a very significant consequence today,” they argued in a jointly written op-ed for the New York Times, adding that “Mr. Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.”
Whitaker’s appointment defies “the explicit checks and balances set out in the Constitution, a provision designed to protect us all against the centralization of government power,” they added.
Katyal and Conway are not alone in their argument. Supreme Court Justice Clarence Thomas maintained similarly last year that the appointment of the non-Senate confirmed general counsel of the National Labor Relations Board was invalid on a statutory grounds. Justice Thomas argued further that even if the statute allowed for the appointment of a principal officer, the Constitution’s Appointments Clause would forbid it.
Justice Thomas posited that the framers “recognized the serious risk for abuse and corruption posed by permitting one person to fill every office in the government.” Hence, they designated to give the role of advice and consent to the Senate.
“What goes for a mere lawyer at the NLRB goes in spades for the attorney general of the United States, the head of the Justice Department and one of the most important people in the federal government,” Katyal and Conway write. “It is one thing to appoint an acting underling, like an acting solicitor general, a post one of us held. But those officials are always supervised by higher-ups; in the case of the solicitor general, by the attorney general and deputy attorney general, both confirmed by the Senate.”
They add, “Mr. Whitaker has not been named to some junior post one or two levels below the Justice Department’s top job. 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.”
This is all true. Whitaker hasn’t been confirmed by the Senate, and, as such, we’ve no idea if he’s professionally and/or personally fit for duty. And as Katyal and Conway argue, the office of the attorney general is no small role. This is as convincing an argument as I’ve seen for why Trump’s appointment of Whitaker is a bad one. And until the White House provides a reasonable, law-based rebuttal, it’s also the only reasonable position. As far as rebuttals are concerned, I’m not going to hold my breath.
