OPINION
11/11/2018 06:01 pm ET Updated Nov 11, 2018

Yes, Whitaker's Appointment Is Unconstitutional. Here's How To Challenge It.

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Perhaps the most alarming ― if not exactly surprising ― fallout from last Tuesday’s midterm elections was President Donald Trump’s immediate dismissal of his long-beleaguered attorney general, Jeff Sessions, and the subsequent appointment of Matthew Whitaker, a Trump toady and Sessions’ chief of staff, as his acting replacement. If the firing was, in part, an attempt to commandeer the nation’s post-election attention, it worked.

Much has been said and written already about the one-two punch of Sessions’ firing and his immediate replacement by a plainly unqualified staffer who had been secretly (or, as it turns out, not so secretly) spying on the attorney general on behalf of the White House. But some of what’s been said is wrong, and the parts that are right will no doubt need bolstering against inevitable withering attack, so a bit more still needs to be said.

Let’s be clear: Trump fired Sessions for doing the one unquestionably ethical and decent thing in his tenure as attorney general ― recusing himself from the investigation of Trump’s 2016 campaign, including contacts with Russia, of which he was an integral part. Although the nation is still waiting for many of the shoes from that investigation to drop, we have already seen, in 18 months, a remarkable 35 indictments, six guilty pleas, and eight jury convictions. Whitaker, who has been critical of the probe led by special counsel Robert Mueller, now oversees that investigation, as well as the FBI and all 93 U.S. attorneys. And he may do so until next June.

Trump has been told repeatedly, by members of his own party, that sacking Sessions and otherwise threatening Mueller could cost him his presidency. Yet he has done just that.

Over months of using cable television appearances to audition for the role, Whitaker has nurtured the president’s expectation that he can and will refuse to recuse himself from oversight of Mueller’s investigation, and will indeed shield Trump and his family from any consequences of that investigation, including being held accountable for legal violations that carry the risk of serious jail time and removal from office. One can imagine no reason for Trump’s appointment of Whitaker other than the hope of such illegitimate protection.

So the key question is whether, as most legal scholars appear to agree, Whitaker’s installation is indeed unlawful ― and, if it is, whether the illegality is so clear and significant that no court could credibly hold otherwise.

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Whether Whitaker’s appointment is legal isn’t just an academic question ― there are real-world scenarios that will force a court to find that it is not. As things stand, individuals charged with federal crimes by Whitaker’s Justice Department could move to dismiss charges against them. If the attorney general ― whose signature appears on the charging documents ― is effectively an impostor, then the office has no legal authority. And the Supreme Court has a history of setting aside official actions that flow from invalid appointments.

So, if a defendant can show that Whitaker’s authorization is behind a case, and that there’s a serious question about whether Whitaker was legally appointed, courts will have a hard time allowing that case to go forward. Criminal defendants in federal prosecutions could resist whatever the Justice Department demands of them (for instance, by subpoena) by arguing that Whitaker is a legal nobody. Ironically, the only defendant who would find it impossible to use that argument is the man who appointed Whitaker, Donald J. Trump ― in the event he were to be subpoenaed or indicted pursuant to Whitaker’s approval.

In addition, individual senators could argue that Whitaker’s appointment robs the institutional power conferred on them by the Constitution. The Appointments Clause of Article II charges the Senate with providing “advice and consent” on the appointment of certain officers, including the attorney general. But Whitaker’s appointment bypassed Senate confirmation, effectively nullifying the power of the Senate and its members to offer advice and consent. Senators could therefore affirmatively sue over the loss of this essential power.

When courts do consider the merits of Whitaker’s appointment, they’ll find that it stands on shaky legal ground.

Sen. Richard Blumenthal (D-Conn.) and others did exactly that when they sued Trump, so far successfully, for accepting foreign government money without congressional permission, which is required by the Constitution’s Foreign Emoluments Clause. It helps that, in that case, the court pointedly noted that the advice and consent provision of Article II is the only constitutional provision similar to the Emoluments Clause’s congressional-consent requirement.

Opponents might point out that if legislators are unhappy, they have a more appropriate available remedy than a court challenge ― they can pass a law. This objection, which the court in the emoluments case called “irrelevant,” is especially inapposite here, because the Senate already did pass a law, the Attorney General Succession Act.

That statute created a line of succession for the position of attorney general, which would require the position to be filled in this case by the sitting deputy, Rod Rosenstein. It’s hard to imagine what legislative action could be clearer, unless the Senate is expected to pass the law again, now with the added words “and this time we really mean it.”

Alternatively, Mueller or Rosenstein could invoke the illegality of Whitaker’s appointment to justify refusing to follow an order from him. Any of these paths will prompt the judicial branch to exercise the reviewing role it’s held since Marbury v. Madison – even if, as we have learned, Whitaker may not recognize the legitimacy of that role.

When courts do consider the merits of Whitaker’s appointment, they’ll find that it stands on shaky legal ground.

First, although Trump may not have uttered to Sessions the words that made him famous on TV (“You’re fired!”), it’s clear that he did, in fact, fire Sessions. While the attorney general may not have departed under literal threat, he was left with no real choice if he wanted to preserve any dignity. Sessions’ undated resignation letter indicated that he was leaving at the president’s “request.” When, on Wednesday, Sessions asked if he could stay through the end of the week, he was told to clear out that very day. That sure looks like a firing.

This matters because of the Vacancies Reform Act, designed to improve the operations of the federal bureaucracy. For the purposes of the VRA, “vacancies” aren’t created by firing. So if a court were to conclude that Sessions actually “resigned,” then Trump and Whitaker could argue that, because of the VRA, anyone working for the Department of Justice could fill the vacancy for up to seven months (210 days). This argument relies on a 2007 opinion of the Justice Department’s Office of Legal Counsel that concluded ― wrongly, in my opinion ― that the Attorney General Succession Act is trumped (if you will) by the VRA, a more recent and far more general statute.

Yet even if a court were to agree both that Sessions resigned and that the VRA applies (hardly implausible, in our increasingly pro-presidential judiciary), any federal court will recognize that the Constitution trumps all. And that’s where the big guns get introduced.

ASSOCIATED PRESS

The Constitution in Article II permits Congress to empower “the President alone” to appoint “inferior Officers.” All other “Officers of the United States” ― known as “principal officers” ― must be appointed “by and with the Advice and Consent of the Senate.”

There’s a good bit of formalism in the business of deciding who’s a principal officer in need of Senate confirmation and who isn’t. Our history establishes that the importance of the office, taken alone, doesn’t determine whether its occupant is a “principal officer.”

The office of chief of staff to the president, for example, has greater influence than, say, the secretary of agriculture (whose office is, in fact way more significant than most people realize), but the office of chief of staff has always been understood as not requiring Senate confirmation. Indeed, the role that Whitaker himself seemed to be playing as the chief of staff to Sessions may have been a bigger deal, influence-wise, than, say, Ben Carson’s position as head of the Department of Housing and Urban Development. But nothing in the Constitution required that Whitaker receive Senate confirmation for that role ― and so he didn’t.

The attorney general, however, is a principal officer entitled to Senate confirmation ― as even those defending the legality of Whitaker’s appointment agree. But Whitaker was never confirmed by the Senate to his new post, nor to any position in the line of succession to that role, or even to any position with similar responsibilities (the idea that his 2004 confirmation as a U.S. attorney in Iowa would apply at this date and for this position is laughable).

So how is this not an open-and-shut case? Whitaker’s defenders argue that the president may appoint someone to carry out the attorney general’s duties, without Senate confirmation, so long as the appointment is temporary.

But, of course, all presidentially appointed officers have time-limited terms: their commissions expire when the term of the president who appointed them ends (after 1,461 days). So being time-limited – Whitaker serves, as we’ve noted, for at most 210 days – can’t in itself erase the need for Senate confirmation. And the irreversible damage an acting AG Whitaker could do in 210 days ― to the Mueller probe and to the nation ― is enormous, making entirely implausible any argument that his appointment lacks the gravity that ultimately marks whether Senate confirmation is required.

Those who think Whitaker’s temporary appointment is constitutional ― a group that will undoubtedly include the president’s lawyers and those representing Whitaker ― rely on U.S. v. Eaton, an 1898 Supreme Court case involving a consular position in Bangkok.

Consul Sempronius Boyd, believing himself to be fatally ill, deputized a local missionary as vice-consul to Siam while he awaited the arrival of a Senate-appointed successor by boat. In the exigent circumstances, the Supreme Court found that an “emergency appointment” was justified. It stretches the imagination to suggest that even the most pro-presidential (or pro-Trump) court ― including, as some have suggested, the current Supreme Court ― would buy the analogy.

Installing someone handpicked to shut down a DOJ probe into the president and those close to him is simply not analogous to a fatally ill diplomat filling a sub-ambassadorial vacancy because the closest Senate-confirmed expert is several weeks away by sea. Emergency appointments can, indeed, be constitutional. The only “emergency” at play here, however, is the loss of the House by the president’s political party, the impending reality of some checks on renegade power, the prospect of indictments and, perhaps, the transition from impeachment talk to genuine impeachment proceedings.

Laurence H. Tribe is the Carl M. Loeb university professor and professor of constitutional law at Harvard Law School, an accomplished Supreme Court advocate, and the co-author, most recently, of “To End A Presidency: The Power of Impeachment.”

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