Whittaker's Attorney General Appointment: Constitutional Crisis?

The appointment of Matthew Whitaker as Acting Attorney General by President Trump in 2018 raised several legal and ethical questions. Whitaker was not serving in a position that required Senate confirmation, and legal experts, scholars, and former prosecutors debated the legality and constitutionality of his appointment. Some argued that it was unconstitutional under the Appointments Clause, as the Attorney General is a principal position requiring Senate confirmation. Others defended the appointment, citing the Federal Vacancies Reform Act and historical precedent. The controversy surrounding Whitaker's appointment also involved concerns about his financial disclosures, potential conflicts of interest, and involvement in the Mueller investigation.

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The Appointments Clause

Matthew Whitaker was appointed by President Trump as Acting Attorney General in 2018, following the departure of Jeff Sessions. Whitaker was not subject to Senate confirmation, as he was Sessions' Chief of Staff at the time. This led to legal challenges and questions about the constitutionality of his appointment.

Some legal scholars and former Justice Department officials argued that Whitaker's appointment as a non-Senate-confirmed official was unconstitutional under the Appointments Clause. They maintained that the Attorney General, as a principal officer, required Senate confirmation. The Federal Vacancies Reform Act, which gives the President authority to appoint acting officials, was cited as a defence of Whitaker's appointment. However, critics argued that the Act was unconstitutional when applied to Whitaker's case.

The Justice Department's Office of Legal Counsel defended the constitutionality of Whitaker's appointment, citing the temporary nature of the position and historical precedent. They acknowledged the uniqueness of the situation but pointed to other instances of non-Senate-confirmed individuals serving in senior-level acting roles.

The constitutionality of Whitaker's appointment was a subject of legal debate, with some arguing a violation of the Appointments Clause and others citing the temporary nature of the role and legal precedents to justify it.

Vacancies Reform Act

The Federal Vacancies Reform Act of 1998 establishes requirements for temporarily filling vacant positions in Executive Branch agencies that require presidential appointment and Senate confirmation. These are commonly referred to as PAS positions. The Act identifies who may temporarily serve, for how long, and what happens when no one is serving under the Act and the position is vacant. The Vacancies Act applies to presidentially appointed, Senate-confirmed positions in Executive Branch agencies, including Executive Branch departments, government corporations, independent establishments, and the Executive Office of the President.

The Vacancies Act is the exclusive means for temporarily filling covered positions unless there is a statutory provision that expressly designates an acting officer or authorizes the President, court, or Executive Branch department head to designate an acting officer. An individual who becomes the first assistant after a vacancy occurs in a covered position may serve as the acting officer unless the time period for acting service has expired or the individual is nominated for the covered position. The Vacancies Act includes several time limitations on acting service in covered positions when vacancies are not caused by sickness. For example, an individual who becomes the first assistant after a vacancy occurs in a covered position may serve as the acting officer for up to 210 days.

The Vacancies Act expressly does not apply to positions at the GAO, members of boards, commissions, or similar entities composed of multiple members that govern independent establishments or government corporations. The Act also does not apply to members of the Federal Energy Regulatory Commission or the Surface Transportation Board. In addition, the Vacancies Act does not apply to positions for which there is no first assistant, such as the head of an agency or department. In these cases, the President may direct a senior official within the agency or department to perform the functions and duties of the vacant office until a successor is appointed or an acting officer is designated.

The Vacancies Act has been invoked in several instances to justify the temporary appointment of acting officials in the absence of a Senate-confirmed nominee. For example, in 2018, the U.S. Department of Justice's Office of Legal Counsel (OLC) cited the Vacancies Act in defending the appointment of Matthew Whitaker as acting Attorney General. Whitaker's appointment was controversial because he had not been confirmed by the Senate, and some argued that the position of Attorney General required Senate confirmation. However, the OLC argued that the Vacancies Act allowed for temporary appointments to principal officer positions and that Whitaker's appointment was valid because it was temporary and former Attorney General Sessions had formally resigned.

Non-Senate confirmation

The appointment of Matthew Whitaker as Acting Attorney General by President Trump has been controversial, with some arguing that it was unconstitutional. The controversy stems from the fact that Whitaker was not confirmed by the Senate, which is typically required for appointments to principal officer positions like that of the Attorney General.

The Appointments Clause of the US Constitution states that "principal officers" of the United States must be nominated by the President and confirmed by the Senate. The Attorney General is the head of the Department of Justice and is therefore considered a principal officer. As such, the argument is that Whitaker's appointment as Acting Attorney General without Senate confirmation violates the Appointments Clause.

However, there are differing legal interpretations of Whitaker's appointment. Some legal experts and scholars argue that the appointment was permissible under the Federal Vacancies Reform Act of 1998 and the US Supreme Court decision in the 1898 case of United States v. Eaton, because it was temporary. The Department of Justice's Office of Legal Counsel (OLC) also defended the constitutionality of Whitaker's appointment, citing precedent and historical practice. They noted that non-Senate-confirmed individuals had served in acting capacities multiple times in the past, including as Acting Attorney General in 1866.

On the other hand, some legal scholars and former Justice Department officials argue that a non-Senate-confirmed official like Whitaker cannot serve as the nation's top law enforcement officer, even on a temporary basis. They contend that the President cannot rely solely on the Federal Vacancies Reform Act to appoint an official to a principal officer position without Senate confirmation. Law professor John Yoo, for example, argued that the Appointments Clause renders the Federal Vacancies Reform Act unconstitutional in this case.

The constitutionality of Whitaker's appointment has been challenged in court, with lawsuits filed in the US Supreme Court and federal district court in Maryland. The outcome of these cases will provide a definitive answer on the legality of Whitaker's appointment as Acting Attorney General without Senate confirmation.

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Acting Attorney General

The appointment of Matthew Whitaker as Acting Attorney General by President Trump has been a controversial topic, with many questioning its constitutionality. Whitaker was serving as Jeff Sessions' chief of staff in the Justice Department before his appointment.

The debate centres around the Appointments Clause of the Constitution, which states that "principal officers" of the United States must be nominated by the President and confirmed by the Senate. Whitaker, as Sessions' chief of staff, was not a Senate-confirmed position, and therefore, some argue that his appointment as Acting Attorney General violates the Constitution. The Attorney General is the Head of the Department of Justice and is considered a "'principal" position, requiring Senate confirmation.

However, others defend the appointment's legality, citing the Federal Vacancies Reform Act of 1998 and the U.S. Supreme Court decision in the 1898 case of United States v. Eaton. They argue that temporary appointments are not subject to the strictures of the Appointments Clause and that similar acting appointments have occurred in the past. The Justice Department's Office of Legal Counsel also issued a memo defending the constitutionality of Whitaker's appointment, acknowledging the uniqueness of the situation but pointing to historical precedents.

The constitutionality of Whitaker's appointment has been challenged in court, with Senate Democrats filing lawsuits and arguing that the appointment circumvents the Senate's role in the confirmation process. Legal scholars and former Justice Department officials have joined the debate, questioning whether a non-Senate-confirmed official can serve as the nation's top law enforcement officer, even temporarily.

Additionally, Whitaker's tenure as Acting Attorney General has faced scrutiny for potential conflicts of interest and financial disclosure issues, with investigations into possible violations of the Hatch Act. Whitaker's involvement in the Mueller investigation and his public criticism of it while serving as Sessions' chief of staff have also raised concerns.

Constitutionality

The constitutionality of Matthew Whitaker's appointment as Acting Attorney General has been a highly debated topic. The main point of contention is whether the appointment of Whitaker, who was not a Senate-confirmed official, violates the Appointments Clause of the US Constitution.

The Appointments Clause states that "principal officers" of the United States must be nominated by the President and confirmed by the Senate. Whitaker, as Sessions' chief of staff, was not a Senate-confirmed official at the time of his appointment. This has led to legal challenges and questions about the lawfulness of his appointment.

Some legal experts and scholars argue that the appointment is unconstitutional under the Appointments Clause, as the position of Attorney General is considered a "principal" one, requiring Senate confirmation. They contend that the President cannot unilaterally appoint an acting attorney general without the advice and consent of the Senate. This interpretation aligns with the original meaning of the Constitution.

On the other hand, supporters of the appointment's constitutionality cite the Federal Vacancies Reform Act of 1998 and the US Supreme Court decision in the 1898 case of United States v. Eaton. They argue that temporary appointments, such as Whitaker's, are permissible under the Act and do not violate the Appointments Clause. Additionally, they point to historical precedents of non-Senate-confirmed individuals serving in acting capacities, including an assistant attorney general in 1866.

The Justice Department's Office of Legal Counsel defended the constitutionality of Whitaker's appointment, acknowledging the rarity of such an appointment but citing the Federal Vacancies Reform Act and past precedents. Meanwhile, legal challenges were filed by Senate Democrats and organisations like Protect Democracy and the Constitutional Accountability Center, arguing that the appointment circumvented the Senate's confirmation role.

In conclusion, the constitutionality of Whitaker's appointment as Acting Attorney General remains a subject of legal debate, with differing interpretations of the Appointments Clause and the applicability of the Federal Vacancies Reform Act. The outcome of legal challenges and the precedent it sets for future appointments remain significant points of interest.

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