Trump Risks that Every Action Matt Whitaker Takes as Attorney General Can Be Legally Challenged

George Conway (Kellyanne’s spouse, whom Trump considered to be Solicitor General) continues his habit of criticizing Trump from a conservative legal stance. This time, he joins Neal Katyal, author of the Special Counsel regulations under which Mueller operates, to argue that Trump’s appointment of Matt Whitaker is unconstitutional because Trump can’t name someone who hasn’t been Senate confirmed when a Senate confirmed candidate is available. The whole op-ed — which relies on a recent Clarence Thomas concurrence — is worth reading, but my favorite line is where they call Whitaker a constitutional nobody.

We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design. Senate confirmation exists for a simple, and good, reason. 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 President 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.

I’m just as interested in what three rising Democratic House Chairs (House Judiciary Committee’s Jerrold Nadler, HPSCI’s Adam Schiff, and Oversight and Government Reform’s Elijah Commings) did, along with Dianne Feinstein. In the wake of Jeff Sessions’ resignation, they sent letters to every relevant department warning them to preserve all records on the Mueller investigation and Sessions’ departure. In their press release, they referred to Sessions departure not as a resignation, but as a firing.

Last night, House Judiciary Committee Ranking Member Jerrold Nadler (D-NY), Intelligence Committee Ranking Member Adam Schiff (D-CA), Oversight and Government Reform Committee Ranking Member Elijah Cummings (D-MD), and Senate Judiciary Committee Ranking Member Dianne Feinstein sent letters to top Administration officials demanding the preservation of all documents and materials relevant to the work of the Office of the Special Counsel or the firing of Attorney General Jeff Sessions.

In their letters, the Members wrote:  “Committees of the United States Congress are conducting investigations parallel to those of the Special Counsel’s office, and preservation of records is critical to ensure that we are able to do our work without interference or delay. Committees will also be investigating Attorney General Sessions’ departure. We therefore ask that you immediately provide us with all orders, notices, and guidance regarding preservation of information related to these matters and investigations.”

Letters were sent to the White House Counsel Pat Cipollone, FBI Director Chris Wray, Director of National Intelligence Dan Coats, CIA Director Gina Haspel, Deputy U.S. Attorney for the Southern District of New York Robert Khuzami, Treasury Secretary Steven Mnuchin, NSA Director Paul Nakasone, IRS Commissioner Charles Rettig, and Acting Attorney General Matt Whitaker. [my emphasis]

Even the letters themselves, while they don’t use the word “firing,” emphasize the involuntary nature of Sessions’ ouster.

Our understanding is that Attorney General Jeff Sessions has been removed at the request of the President. We ask that you confirm that the Justice Department has preserved all materials of related to any investigations by the Special Counsel’s office, including any related investigations conducted by any component of the Justice Department. We also ask that you preserve all the materials related to the departure of Attorney General Sessions.

While it’s not clear whether they more basis to believe this was a firing rather than a resignation, they’re proceeding as if it was, legally, a firing. That’s crucial because the only way that Whitaker’s appointment, as someone who is not Senate confirmed, would be legal under the Vacancies Reform Act is if Sessions legally resigned. The Democrats seem to suspect they can argue he did not.

And that’s important because (as Katyal and Conway argue) if his appointment is not legal, than nothing he does as Attorney General is valid.

President 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.

Plus, by demanding preservation of the records and framing this in terms that suggest Whitaker’s appointment was not legal (I’m not sure I agree, but encourage HJC to ask Katyal and Conway to argue the case for them), HJC lays out a basis to claim standing to challenge this, particularly if and when Whitaker makes a decision (such as preventing HJC from obtaining any report Mueller writes) that will cause them injury as an independent branch of government.

Again, I’m not sure I agree with the Katyal/Conway legal argument, though if HJC can prove that Sessions was fired then it’s clear Whitaker was not legally appointed. But these two challenges pose a real risk for Trump. It risks not just decisions pertaining to the Mueller investigation, but even things like surveillance approvals, can be challenged by anyone harmed by them (who gets notice of it). That’s an unbelievable risk for a position as important as Attorney General.

Back when a guy named Robert Mueller had his FBI tenure extended two years in 2011, Tom Coburn worried that even that action, done with Senate approval, would make the approvals Mueller made under Section 215 (this was before we knew the scope of the phone dragnet) legally suspect.

Could you envision colorable challenge to use of 215 authority during your 2 year extension of power?

While I have no problem with you staying on for two more years, I do have concerns we could get mired in court battles [over 215] that would make you ineffective in your job.

Coburn was worried about one (or a few) surveillance programs. The Attorney General touches far more than the FBI Director, and Trump’s DOJ could spend just as much time in court trying to defend the actions of his hatchetman.

And it looks like both the author of the statute governing Mueller’s appointment and the people who will oversee DOJ in a few months have real questions about the legality of Whitaker’s appointment.

50 replies
  1. LilOlRando says:

    In the event that Whitaker approves at least some Mueller action (if for no other reason that to provide plausible deniability that he’s running interference for the president), couldn’t the targets of those actions make a similar arguement?

  2. orionATL says:

    so who can be said to have unassailable standing to sue (a favorite point for justices to duck),  who do they sue (trump?),  and when will that suit be “timely filed” :)  ?

    • orionATL says:

      i am glad to see whitaker described as a “constitutional nobody”, or less personally since i assume katyal and conway are not being personal, as occupying a job, chief-of-staff, that is not a principal job constitutionally or in terms of common sense.

      a chief-of-staff is a factotum, a helper, a facilitator, a high level (executive) secretary. trump’s chief-of-staff, general kelly, is a factotum, an executive secretary as is his press secretary; they do not need senate approval. the president’s barber and hair care dermatogist are a different matter and do require confirmation.

      • Kai-Lee says:

        Other experts have joined in the same opinion (e.g., Tribe, Eisen, Shugerman) – that the vacancies act doesn’t apply and is in any case superseded by the Constitution. Whitaker’s appointment is illegal. How long it will take to get some kind of injunction against his taking up the AG responsibilities is as yet undetermined. Surely there would be an urgent appeal granted?

        Whitaker could take up his post and do little to overtly hamper the remains of the Mueller investigation. What worries me most is what information he will be privy to, and what Trump et al will do with that information. Next come the subpoenas and wasting time taking things to the Supreme Court for Judge Kavvie to ponder.

        Not looking good!

  3. BobCon says:

    Does a documents preservation notice from incoming committee chairs have any authority? I’m curious if Nunes, for example, can send his own letter saying fire up the shredder and stick the industrial magnet next to your hard drives for as long as I’m in charge, and you can tell Schiff he can send a letter again in January.

    • orionATL says:

      ga. gubernatorial candidate and “hands on” secretary of state, brian kemp, already beat whittaker to that in july 2017 – following filing of a suit against him – by erasing hard drives at the kennesaw state university state repository. the erasing folliwed hard on the heels of the june 21, 2017 runoff contest between republican karen handel (sec of state before kemp) and democrat john osoff, which handel won after a surprising number of dem votes (in aggregate) in the initial may, 2017 election changed from dem to republican in the late june runoff election.

  4. viget says:

    Minor point to EW (with utmost respect!):

    Katyal authored DOJ regulations, not statutory language, regarding the oversight of the special counsel’s office. You said this in your first graf, but in your last, you called it a “statute.” Unfortunately, it’s not an act of Congress. I actually heard on NPR that Whitaker, if he really wanted to, could just change these regulations on a whim, and further erode Mueller’s authority.

  5. earlofhuntingdon says:

    Whether Sessions resigned or was fired may depend, in part, on Jeff’s own testimony.  He’s not likely to testify against his president, not matter how badly he was treated, especially if some other benefit is to come his way, such as support for a renewed Senate bid.

    Still, Session’s “resignation” letter was clear: Trump demanded (“requested”) his resignation and he submitted it.  The request language is negated in that, when Sessions asked if he could stay until the end of the week, he was told by Kelly to be out by the end of the day.

    I don’t see any indicators that this was a voluntary choice, which is what would be needed for this to be a valid resignation rather than a firing.

    • BobCon says:

      I think you’re right that Sessions will never flat out say he was literally under the gun when he wrote that letter, and if it gets as far as the Supremes, that’s what it would take for them to go against Trump. They’ll save the textual analysis for when it’s a President Warren, Booker or Harris.

      • j says:

        Since you mentioned capable future analysts, perhaps sneaker candidate from my state, Jay Inslee, who is a progressive Democratic Party governor and an attorney, is already giving this important matter some thought.

        • Kai-Lee says:

          Won’t he be declaring his candidacy for the Presidency within the next few months instead? He just might make it.

    • J R in WV says:

      I agree, when Chief of Staff Kelly told Jefferson Beauregard Sessions III to be out by the end of business that day, he made it crystal clear that Mr Sessions III was fired, GET OUT fired!

      So everything done by the DoJ, as approved by the Acting pretend Attorney General, from then on is probably not valid at all.

    • Kathy W says:

      Could Trump’s own insulting and threatening tweets regarding & towards Sessions, (starting when Sessions recused himself); urging Sessions to resign “or else”, and Sessions sustained refusal to resign, be considered evidence that Sessions was forced to “resign”?

  6. RoyTone says:

    I hate to say it because it’s such a downer but we’re all adults:  Any tricky ass case that evolves out of this mess will wind up at the supreme court. I think I know how they will decide…

  7. Thomas Paine says:

    The other issue is any role Whitaker might play in obstructing justice. If his appointment is NOT legal, then his personal liability for his actions becomes even more problematic, once, in 2021 a new Democratic Administration comes in to “separate the quick and the dead” and sends a bunch of “retired” Trump Administration officials to the “big house”, as well as being debarred for life. Mr. Whitaker could very well spend the rest of his miserable life saying “do you want fries with that”, since, at age 49 he is to young to really retire, and too old to play football. I hope he is smart enough to retain his own competent counsel to explain all this too him, but he looks to arrogant and ignorant to make the effort.

    • Lee says:

      “Mr. Whitaker could very well spend the rest of his miserable life saying “do you want fries with that”, since, at age 49 he is to young to really retire, and too old to play football.”

      I doubt he would need to work for McDonalds.  He already has an impressive resume in promoting expensive scams and threatening legal action against those who were scammed.  Just like Trump “university”.  He won’t stop until he is physically and legally stopped.  That type is always in high demand by mob bosses.

  8. orionATL says:

    we have been thru many interesting discussions here about specific issues of placing restraints on presidential power. a way to look at the outcome of any debate about constraint on a president seems to me to be:

    1. there can be no “rule of laws, not men” in this country when a president (and his political allies) has available overweening political – and national police – power, and does not voluntarily constrain himself in regard for this custom and tradition.

    2. the american constitution is indeed “nothing but a god damned piece of paper” to any president who, by vitrtue of at least a century of congressional concession, has his hands on the levers of power but does not agree to being constrained by the constitution, i.e., who faces weak political checks on his exercise of power.

    3. over the last century at least, the congress has gifted the presidency with large amounts of potentially weakly checked political power. one example is tolerating executive orders.

    the one merit i can see in the trump presidency so far is that prez trump, by virtue of his ruthless and politically ignorant personality, has come to clearly illustrate the extreme danger in which this country has been placed by accretions of unchecked presidential political power for which any “constitutional rule of law” is no match whatever. one example of this is the Executive Order:

    “… In the United States, an executive order is a directive issued by the President of the United States that manages operations of the federal government and has the force of law.[1] The legal or constitutional basis for executive orders has multiple sources. Article Two of the United States Constitution gives the president broad executive and enforcement authority to use their discretion to determine how to enforce the law or to otherwise manage the resources and staff of the executive branch. The ability to make such orders is also based on express or implied Acts of Congress that delegate to the President some degree of discretionary power (delegated legislation).[2]… from miss wiki

    another example of this, incredibly in the executive branch itself as gifted by the congress, is the office of legal counsel, that rules on the legality of presidential actions, e.g., torture.

    a third is the unilateral cancellation by this president of numbers of important treaties, e.g., nuclear, with iran, trade.

  9. CitizenCrone says:

    If the legality of Whitaker’s actions hinges upon the legality of his appointment which depends upon whether Sessions was fired or voluntarily resigned, then 1) who can initiate the investigation (or whatever process) to determine whether Whitaker is legit? and 2) Is there any way for Mueller to postpone briefing Whitaker until the question is settled? Surely the briefing will include information that he’d rather Trump & Friends didn’t know.

    Also, when I read Sessions’ letter, I thought it was possible he worded it as he did to let us know that he was in fact fired. A little monkey wrench in Trump’s engine of vengeance.

  10. orionATL says:

    a concise summary of the real heart of the danger of president trump appointing matthew whittaker as acting attorney general:

    all the legal arguments and efforts considered may be viewed as (desperate) tactics to see that this unqualified republican ideologue does not get the opportunity to damage the country or the department of justice in the face of our president’s ruthless and politically ignorant personality.

  11. Jay Hale says:

    I am hoping you, or another poster, can comment on the following topic.

    Questions have been raised about whether Whitaker can serve as Acting Attorney General. Much of what I have read paints the answer in terms of whether Sessions was fired or resigned. However, many have opined (e.g. Tribe, Kayral) that this is not really an issue. Instead, these persons suggest Whitaker can’t serve as Attorney General (or Acting Attorney General) because this position requires Senate approval (regardless of the reasons why the position became vacant). Are these opinions sound?

  12. Eureka says:

    Katyal remains highly worked over this whole situation:  his twitter has a bunch of protests-in-the-streets retweets, and he was just on Chris Hayes.  (I’m trying to find out what happened with Philly v Beauregard (‘Sanctuary Cities’ case) yesterday, but he only said – and with indignance- that by the time they were about to leave, they didn’t know what to call it, given the Sessions ouster.)

    • Tracy says:

      I think it’s a little personal for him since he was the one who, as a young DoJ newbie, wrote the Special Counsel rules, after Nixon’s investigation was too imperiled, Clinton’s was overcorrected in the opposite direction (way too undirected), and he had to make the OSC accountable but also independent enough to do its job. I think he feels close to this, and a bit responsible on some level, as anyone in his shoes would who is watching our democracy constantly on the brink of crumbling apart since 2017.

      While Katyal tried to anticipate corruption in the presidency and a yes-person as the AG, we are in such an unprecedented situation, with the whole GOP Congress being obstructionists for a corrupt president, that Katyal did not fully anticipate this unprecedented level of conspiracy and corruption we see from the GOP.

      (I say all of this not as a lawyer but as a listener to a long-ago NYT Michael Barbaro podcast re: Katyal and his writing of the OSC rules.)

      • orionATL says:

        good points, interesting to me in both comments. thanks.

        here is a broad view of katyal from miss wiki:

        it is not mentioned by miss wiki, but i as recall, the bill clinton presidency set up and maintained a stringent set of rules limiting contact between the clinton white house and the doj.

        with respect to the special counsel and ken starr, these rules proved truely unwise.

        • Eureka says:

          Is that maybe related to Clinton being investigated by an IC instead of OSC?

          Edit: I didn’t see your edit before I replied, lol, now we may be playing who’s on first.

          • orionATL says:

            thanks. not likely, it was probably a matter of control of messaging down to a key cabinet position (attorney general, sec of defense, sec of state, sec of treasury). the attorney general, janet reno, always had to make a referral to starr’s office and mostly did. starr and kavanaugh were happy to follow up on that referral :)

            john kennedy wisely appointed his brother robert to be attny general. no need for special messaging there. any family barbecue would do.

      • Eureka says:

        Yes, and I am glad he is making multi-media efforts to keep these issues forward in the attention markets.

        • orionATL says:

          as am i. if it weren’t for katyal’s principaled persistence, we would be entirely without a compass on a sea of d1 says, r1 says; d2 says, r2says; ….. dn says, rn says :).

  13. Bill says:

    With all due respect, the author is a journalist (and an excellent one at that), not a legal expert. Her work experience and PhD in Comparative Literature do not qualify her for the task of evaluating the legality of Whitaker’s appointment. She should readily acknowledge that, rather than opining that she’s not sure she “buys” the argument that Whitaker’s appointment is unlawful.

    Humility may make for less interesting reading and fewer page clicks, but it would have been appropriate here.

    • bmaz says:

      “With all due respect” Bill, I am a lawyer and have been for over thirty years. Marcy is right, and your claptrap is full of shit. Want to come in again? I will be waiting.

    • earlofhuntingdon says:

      Your narrow criteria would leave out Benjamin Wittes, the conservative legal commentator, who writes about American law and national security for Brookings, Harvard, and Hoover, and runs Lawfareblog.  His bio describes his lowly undergraduate degree from liberal Oberlin College.

      Humility would assess the work product, not the credentials.  Kris Kobach, after all, graduated summa from Harvard College, has a doctorate from Oxford, and went to Yale Law School.  His career has been a basket case and the last federal judge he was in front of sent him back to school to learn trial procedure 101.

  14. Trip says:

    Could there be circumstances where the Mueller team might legally challenge the authority of Whitaker in response to obvious criminal directives? Now that would be a switcheroo.

  15. Trip says:

    Here’s an old quote from Sessions, as he was being hammered by Trump. He had no intentions of quitting ever.

    Jeff Sessions says Trump’s criticism is “kind of hurtful”
    July 27, 2017

    Sessions told The Associated Press he and Mr. Trump have a “harmony of values and beliefs” and he intends to stay and fight for the president’s agenda “as long as he sees that as appropriate.”
    “If he wants to make a change, he has every right,” Sessions said in an interview outside the U.S. Embassy in San Salvador during a mission to increase international cooperation against the MS-13 gang. “I serve at the pleasure of the president. I’ve understood that from the day I took the job.”

    Trump wanting to make a change equals firing. Which is what happened.

  16. tryggth says:

    -orionATL yes, that is the section.

    It seems to be implying that the “function or duty” which can be exercised is limited to those that cannot be delegated.

    “required by such regulation to be performed by the applicable officer (and only that officer)”

    But not a lawyer and can’t figure out if this would apply to Special Counsel oversight. If so, it seems since Rosenstein was overseeing it is obvious oversight is not an AG only thing.

  17. Topum says:

    I’ve heard people speculate about the ways that Whitaker could endanger the SC investigation, but I haven’t heard anyone clarify whether Whitaker’s appointment itself is enough to bring things to a halt. What I mean is, if the legality of his actions as acting AG are suspect, could any new indictments be legally approved even if Whitaker theoretically wanted them to be approved? Or does his installment poison the entire well for Mueller (and was that therefore the primary purpose for it)?

    To put another way, could the fight over Whitaker itself be what delays and impedes Mueller rather than any active choices Whitaker takes?

  18. Kai-Lee says:

    My worry is that Whitaker will be sharing everything under the sun related to the Mueller investigation with Trump and his team. That may be all he gets to do in the time he has, but just might be enough.

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