Opinion, Berkeley Blogs

Whitaker's appointment is unconstitutional

By John Yoo

Matthew Whitaker President Donald Trump appointed Matthew Whitaker as acting attorney general last week, despite the fact that he cannot legally hold the office. While the president could fix his mistake with any lesser official and in any normal time, the attorney general is no lesser official and this is no normal time. Whitaker takes office during a time of extreme constitutional conflict involving investigations of the president, claims of abuse of law-enforcement and national-security powers, and combat between the executive and legislative branches. In order to prevent a breakdown of federal law enforcement, the White House should hurry to select a permanent attorney general before any more damage is done.

Trump named Whitaker to replace Jeff Sessions, who resigned at the request of the White House the day after the November midterm elections. In an example of the small-ball politics at work, Whitaker came to the attention of the White House because of his publicly expressed criticism of the special-counsel investigation into collusion between Russia and the 2016 Trump campaign. Before joining the Justice Department as Sessions’s chief of staff, Whitaker had urged that the inquiry’s scope be limited, saying that otherwise it could start to look like a “political fishing expedition.” After FBI agents raided the home of the Trump campaign’s former chair, Paul Manafort, Whitaker tweeted: “Do we want our Gov’t to ‘intimidate’ us?” and linked to a Fox News story that said the raid was “designed to intimidate.”

Trump, however, has declared that he barely knows Whitaker and has not discussed Special Counsel Robert Mueller’s investigation with him. If so, the White House may have appointed Whitaker in a too-clever-by-half effort to limit the probe led by Mueller. When a senior government official resigns, dies or cannot do his or her job, the Federal Vacancies Reform Act allows the president to appoint another official of the same federal agency “to perform the functions and duties of the vacant office temporarily in an acting capacity.” Whitaker’s appointment clearly meets the terms of the congressional statute.

But Whitaker’s appointment must still conform to a higher law: the Constitution. As the Supreme Court observed as recently as this year, Article II provides the exclusive method for the appointment of “Officers of the United States.” The president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court and all other Officers of the United States” The appointments clause further allows that “the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments."

The Constitution, therefore, recognizes only two types of federal officers. First, there are what the Supreme Court has come to recognize as “principal” officers, who require presidential appointment with Senate advice and consent. Second, there are “inferior” officers, posts for which Congress can choose to allow appointment by the president, courts or even Cabinet members alone. As the nation’s top lawyer, the attorney general heads one of the four “great” departments of government, along with State, Defense, and Treasury, and the office has existed since the first Washington administration. The attorney general is clearly a principal officer of the government; if he or she is not, it is difficult to imagine what other officer is — the Supreme Court said as much in Morrison v. Olson , the 1988 case upholding the constitutionality of the independent counsel as an inferior officer because she reported to the attorney general as the principal officer.

Whitaker’s appointment violates the appointments clause’s clear text because he serves as attorney general, even if in an acting capacity, but never underwent Senate advice and consent. His defenders might consider the appointments clause to be an antiquated, ceremonial or obsolete process that could not possibly support the massive number of officials in today’s administrative state. It might need to give way to the practical demands of staffing a modern executive branch with hundreds of thousands of officers and employees, more than a dozen major agencies, and hundreds of commissions, boards, and other odds and ends, with officers who might resign, die or go awol without time to proceed through the 18th century’s idea of a human-resources manual. Defenders might rely on an 1898 Supreme Court decision, United States v. Eaton , which allowed for the temporary appointment of a vice-consul in Thailand “for a limited time, and under special and temporary conditions,” namely, the illness of the consul and the vast distance between the U.S. and Thailand. This is basically the approach of a 2003 Justice Department opinion approving the elevation of an assistant Office of Management and Budget director to acting director, and the likely reasoning of the White House in appointing Whitaker.

Elevating practical needs over constitutional meaning, however, is not an attitude usually adopted by conservatives. They generally believe that the original understanding of the Constitution held by those who ratified it should govern — Justice Clarence Thomas, the court’s most committed originalist, set out precisely the reasoning of this article in a concurring opinion in last year’s National Labor Relations Board v. SW General , which struck down the recess appointment of an NLRB officer. Nor is it the view of the Supreme Court, which has continued to demand that all federal officers meet the appointments clause’s requirements. It is difficult to see John Roberts’s court finding that the acting attorney general, responsible for all federal law enforcement in the nation, amounts to the same sort of officer as a vice-consul struggling in the hinterlands of Thailand before the days of air flight and instantaneous communications.

Nor was flexibility in appointments the view of those who wrote and approved the Constitution. Their views seem to find special relevance in today’s troubled times. The joint process for approving principal officers “would be an excellent check upon a spirit of favoritism in the president, and would tend greatly to prevent the appointment of unfit characters from state prejudice, from family connection, from personal attachment or from a view to popularity,” Alexander Hamilton explained in “Federalist No. 76.” The Senate’s approval serves as an important weapon in the unending struggle between the president and Congress, from which liberty results. “A man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests,” Hamilton wrote.

To prevent the president from using appointments to advance his private interests, just as Trump critics today charge, the Constitution prohibits filling the position of attorney general with a series of officials who never received Senate consent. Deputy Attorney General Rod Rosenstein, Solicitor General Noel Francisco, the several assistant attorneys general, even any of the 93 U.S. attorneys in the nation’s major cities could all temporarily fill in for Sessions, as they received senatorial advice and consent. Whitaker, and any other Justice Department official or employee, cannot.

Our founders were practical, too. They understood that “it might be necessary for the public service to fill [vacancies] without delay” when nine months could run between congressional sessions. So there is an exception to the appointments clause: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Article II’s text allows unilateral executive appointments only when a vacancy occurs between the first and second years of a Congress, or between an election and a new Congress. If Trump wants to appoint Whitaker as attorney general, he could just wait for the recess between the Congress just ending and the one just elected, which will fill its seats in January 2019.

All of this matters, of course, because of the ongoing probe by Mueller, who reports to the attorney general. Because Sessions was recused (as a former foreign-policy adviser to the Trump campaign, he could have been a witness to any alleged conspiracy), Mueller has reported instead to Rosenstein, who serves as acting attorney general for that purpose — and who would continue to serve as Mueller’s direct supervisor should Whitaker’s appointment fail. The White House may have thought it had cleverly figured out a way to curtail the investigation by appointing Whitaker, but it has instead virtually assured that Mueller will complete his job in his own good time. With questions surrounding the ethics and now the legality of his appointment, Whitaker will have little political capital to expend in defending any limits on Mueller. And even if Whitaker displays terrible judgment and makes the fateful choice to cut off the probe, Mueller now has the grounds to refuse to obey the orders of an unconstitutional attorney general. Trump’s clever maneuvering has provided Mueller all the space he needs to finish his investigation and even hand over his files and concluding report to a Congress eager to launch impeachment proceedings.

Trump critics should not find joy in such a result. While a constitutionally handicapped attorney general remains in office, it is not only the special-counsel investigation that he cannot supervise. Every action of the Justice Department might fall before challenges to Whitaker’s appointment. That could render vulnerable not just the high matters of state, such as the investigation into the Trump campaign, but the regular enforcement of federal law by FBI agents and prosecutors across the nation, every day. Liberals no less than conservatives should oppose a hiatus in the execution of federal law. The only way to cure it is for the president to quickly nominate an attorney general from the deep pool of qualified candidates and for the Senate to speedily confirm him or her so that our officials can get back to the business of carrying out the nation’s laws.

Crossposted from The Atlantic