Slavery was legal.
The Holocaust was legal.
So?
6
It would appear that the lesson Trump learned from Mitch McConnell’s ignoring the clear intent of the Constitutional “advise and consent” in the nomination of Merrick Garland is that you can tear up the rules and no one will be able to do anything about it . . . especially if everyone is of the same party. So
“scr— the Constitution” appears to be what Republicans believe. One suspects that they’ll try to rush through any new AG nomination just like that of Kavanaugh or perhaps they’ll try to gall it out by flying this middle finger high at the population and the Congress. Clearly, the Prez needed someone he trusted to cover his back while in France and he didn’t want the Mueller report nagging at him, hence the “temporary” appointment. Nothing Trump does is for the nation. It’s all to benefit his rich friends but especially himself.
4
Hey NYT, i been with you folks for a long time. Any chance of putting in a mode where the political news is removed. Outside of your political rants, NYT is the best in the country. We all get you hate the President, that emotion bleeds into your articles. I don't like even seeing the headlines anymore. Think about it.
6
I have read essays and articles from various constitutional scholars, including those from the 44th POTUS, who taught constitutional law before entering into politics.
Mr Vladek, you are no constitutional scholar. Please save your Fox News proclamations for Fox News.
6
No, it is not legal. You are not our king. It is self-evidently self serving and norm bending. Trump is like that little kid who cheats by adds some obscure new rule to the game hoping some dupe will fall for his stunt.
You are that dupe.
5
This just adds to the insane world of Donald Trump. There is only one reason Trump appointed Whitaker and that's because Whitaker said he'd shut off the money for Mueller's investigation if he were in charge. Period-don't look for another reason. This is another reason after Kavanaugh that Trump is trying to put people in places to obstruct justice and protect him.
Trump's original insane move was to push for Kavanaugh's confirmation, because he also said something sympathetic to Trump in that he didn't think Trump should be indicted or investigated while in office. Trump's thought was Kavanaugh could help block any legal action against Trump/family via his Justice seat and a Supreme Court decision in his favor.
Then, finally, maybe there is something to accusations that the DOJ is screwed up! Why was a person legally involved and maybe representing a company charged or investigated for fraudulent activity on consumers ever selected by former AG Sessons; takes away any credit due Sessions. Now, this same "corrupt" legal guy is going to be appointed in charge of our Justice System and FBI.
God help America! God make America great again and drop Trump to his knees, and help Americans see the reality of the republican party as just a culture of corruption.
2
When top legal minds disagree in this matter it is time the rest of us "unwashed" ask the question, how did these unclear and misleading laws come into being?
After all, again top legal minds in Congress wrote these laws, lawyers from both parties reviewed it, elected officials argued over it, outside legal minds reviewed the drafts and the final language and we still have disagreement? This is asinine.
For non-lawyers it would be fairly straightforward, the next in line takes over and if/she is not available, go down the list. Then we have Justice departments across the country bursting with talent, pick one. This smells.
2
Acting in accordance with official government policies and complying with terms and conditions of agreements was a big part of my engineering management experience.
Once in a great while, the senior commander challenged his legal staff opinion "Show me where it says that I don't have the authority". If the legal staff was weak or unsupported / unmonitored by their office's major command, then poor-to-failing advice supported the protagonist's assertion.
Guess what happens in the end? Rubber meets road. Sometimes, even before task completion. Always, it's a time consumer on the front end and on the clean-up end.
And that's my main point: TIME, a precious limited resource. Congress has its main job. The Courts have their main jobs. But, this Executive, is sucking-up EVERYBODY'S TIME by forcing both bodies to respond to every autocratic challenge. The citizens of this nation should realize that - by The President appointing this inferior officer (unconfirmed by Congress) - he has started down a NEW ROAD to set hundreds, if not thousands, of people across the 3 Branches into actions - most often at odds with each other.
Constitutional or not, The President, and no one else, has made his choice - a pleaser, "known" on 11 Oct 2017 Fox and Friends, who shows no commitment to constitutional law. And that selfish choice, Matt Whitaker will undoubtedly act in a manner to finally catalyze The President's division of our government into "check and balance" factions.
14
Mr. Whitaker is not a Senior Officer.
,
3
Wrong.
2
Collusion
Criminal
Hack
Ignorant
trump desperate
Treason
Avarice
3
Is America ever going to evolve beyond hiding behind the law... Is there no knowledge of principles, values, guided by a moral compass, upheld by an ethical spine? This article would indicate not. Instead every time one reads such an article the first thought is: "Well, the law is an ass!"
Does any one ever ask the question: "Is this right?" Because if it were asked, Whittaker's appointment would immediately be seen for the nonsense it is.
2
Only in America can a bouncer become AG.
But again, he was placed in this position by a street thug from Queens.
5
From the description of the Federal Vacancies Reform Act of 1998, it seems it was put in place to give the President the ability to get the business of government going, should something happen. It seems that contrary to that, the way the President is using it is to give him the power to appoint people for a narrow, self-serving purpose, ridden with conflict of interest.
35
According to the Nazis, everything they did was legal.
3
Just imagine if HIllary Clinton appointed her sycophant as AG just as she or those close to her were about to be indicted.
13
From bad to worse: two grossly misleading articles on Whitaker's appointment, one falsely claiming the appointment to be unconstitutional and illegal and the other correctly claiming the opposite, but for the wrong reasons. Astoundingly, neither piece actually quotes the pertinent text of the Constitution which is decisive. To wit: The president has the "power to fill up all vacancies that may happen during the recess of the Senate...." (Article II, Section 2). Importantly, the Senate was in recess when the president appointed Whitaker. Moreover, the principal officer" differentiation presented by both misleading articles is a nonsensical non-sequitur nowhere to be found in the text cited, Article II, Section 2. Perhaps the authors of both conflicting articles as well as their editors should try reading the actual text of the Constitution; it does not bite and can be most enlightening. They also may want to consider how the fact that Mr. Whitaker actually was confirmed by the Senate when he became US Attorney in Utah affects their questionable assertions that he was not previously so confirmed.
6
Except for the fact that the Justice Department has its own explicit order of succession in place, which Trump simply threw in the garbage.
I think that you are dead wrong.
2
Looks like a lot of Democrats were shooting their mouths off about something they knew nothing about.
No surprise there.
Could there be a more trite issue than this? It's an interim appointment! Take some drugs, people!
6
Yea, legal. He is a hack, a bigot and a criminal. Perfect trump appointee. He needs to spend time in jail.
1
Ah, no he isn't.
1
How dare you say Whitaker is stunningly unqualified!
He performed superbly for the cameras of Fox News, and that is the only qualification recognized by BLOTUS (Biggest Liar Of The US).
3
In the end, King Mueller will be dethroned. Subpoena after subpoena from the Senate have been ignored. The only closet Russians exist in Hillary's, Steele's, and the DNC's closet. Once the FISA warrants are made public, this will all become apparent.
3
Oh, really professor. Well, what if a certain acting attorney general is under investigation by the FBI for defrauding customers (veterans) out of $27 million dollars, and sending threatening emails to clients who wanted to expose him and his company to the better business bureau.
Ivory tower navel gazing is over prof. Get the to a 24 hour cable news channel worthy and inform your contrarian reflexive nature.
1
Disbarment anyone?
1
Could someone please ask Jeff Sessions when he wrote his "resignation" letter?
2
...and does anyone doubt that the GOP sheep who approved a lying, whining, arrogant possibly criminal judge to associate justice will happily rubber stamp this clown as well?
1
Sorry, Professor, but Whitaker isn't "legal" until he has passed the "smell test".
Until there is an investigation into his LEGAL escapade last year where he was fined $26 million dollars for ripping off veterans on their inventions and threatening widows and being jerked off his board-chair, until all of that has been given one long look, then, no - he is NOT a LEGAL choice.
Are you saying that trump could go into any slammer in the country and haul out any lawyer not yet disbarred and stick him in as this Nation's AG?
Now, I'm not sure what Banana Republic YOU grew up in, but my standards for this government haven't dropped just because Mr. Groper took the West Wing.
Perhaps others have forgotten that trump had his "TRUMP UNIVERSITY" dissolved by the government and also was "fined" $25 million, but I have not.
You quote the "letter of the law", sir - but I'm quoting the "SPIRIT of the law".
No crooks.
No one who rips off vets.
No one who rips off widows.
And no liars.
Period.
5
“In the Federal Vacancies Reform Act of 1998, Congress elaborated on those missing pieces. When a senior executive branch officer “dies, resigns, or is otherwise unable to perform the functions and duties of the office,” the statute authorizes the president to choose either that official’s “first assistant” (in this case, Deputy Attorney General Rosenstein); any other currently serving government officer who was confirmed by the Senate; or any senior official, like Mr. Whitaker, who served in the same department as the vacant office for at least 90 of the previous 365 days to perform the functions and duties of the vacant office temporarily in an acting capacity.”
The DOJ's org. chart lists its senior officials. The Chief of Staff to the Atty. Gen. is not one of those senior officials listed (https://www.rff.com/justice_orgchart.php). Ergo, Mr. Whitaker was not a senior official. The chain of authority within the DOJ is clear, and Mr. Whitaker was never in that chain. To make the argument that a high-profile influential - because of access to the boss - administrative position is the same as a senior position within an organization is wrong.
6
Stephen Vladeck is wrong. The Federal Vacancies Reform Act clearly states “a person may not serve as an active officer for an office under this section, if (A) during the 365- day period preceding the date of…resignation.., such person… (i) did not serve in the position of first assistant to the office of such officer.”
Matthew Witaker was not “first assistant” to Jeff Sessions, he was, as his title declares, the “chief of staff.” Their is only one "first assistant. Rod Rosenstein, as deputy attorney general, is the only "first assistant" and so, even if he were not already Senate confirmed, may serve as acting director.
Mathew Witaker was not Senate approved and did not serve as “first assistant.” His appointment is illegal and should be apposed by all citizens of conscious and good morals.
Bruce A. Barrett
Milford CT
6
The Federal Vacancies Act was enacted for the sole purpose of clarifying that the Senate is responsible for approving officers in the executive branch when vacancies arise. In the case of the attorney general's office, per the Act and the relevant United States Code, only if there are no Senate-confirmed officers can the president appoint someone to temporarily fill those duties. For reference, see the Senate report https://www.congress.gov/congressional-report/105th-congress/senate-report/250/1
If that logic holds, there is nothing to stop Trump from selecting a stooge planted in the Justice Department for just this type of occasion. Perhaps we had better revisit these requirements before gestapo law reins supreme. Trump is nothing, if not a manipulator of people. But we should be very cautious not to elect one to be president when there are no requirements for the job. This is fuzzy logic a-la Trump. He is still trying to sink our ship.
2
I am, shall we say, less than impressed with this author's sophistry. What, then, would prevent a president from firing (oh, sorry, "asking for the resignation of") every member of the cabinet, and then installing every crook in his little black book, free of that pesky constitutionally required consent of the senate? The president's....EVERY president's...wings need to be clipped. Woodrow Wilson started this imperial trend, and I long for the day when the House is the primary governing body of the US. Remember, in Washington's day, the term "president" was considered an abasement, a title which was supposed to re-inforce the notion that he was nothing but a "presider", the lowest term the founders could concoct.
3
This is an explication of the first half of the US Code in question. Did anyone at the Times read the code? Did the author stop reading it halfway?
3345(a)(3) implies, as the author states, that the President can select someone like Whitaker.
Section (b)(1) takes that away, because it states the temporary person must have served as the first assistant (Deputy AG) for at least 90 days of the preceding 365.
But the kicker is that (b)(2)(C) states that if the Deputy AG is a position that must be approved by the Senate (it is), then a person like Whitaker can't be appointed.
This isn't opinion. It's the law. Jeez.
4
"A federal appeals court that is weighing a legal challenge to Special Counsel Robert Mueller’s authority said Friday it wanted to know whether the sudden ouster of Attorney General Jeff Sessions could impact or change the outcome of how it should rule. The court’s order directed each party in the case to file briefs by Nov. 19 outlining, “what, if any effect, the November 7, 2018 designation of an Acting Attorney General different from the official who appointed Special Counsel Mueller has on this case.”
Any insights/guesses as to why the Appeals Court has made such request?
https://www.reuters.com/article/us-usa-trump-russia-miller/federal-court-asks-how-sessions-ouster-impacts-lawsuit-challenging-mueller-idUSKCN1NE1ZZ
So what?
Both humanity personhood denying black African enslavement in America and American equality defying separate and unequal black African Jim Crow were legal.
Law is not fair nor just nor moral nor objective. Law is gender, color aka race, ethnicity, national origin, faith, socioeconomics, politics, education and history plus arithmetic.
2
Cue opinions by people who have absolutely no idea what the Constitution says.
2
American Democracy is a joke. Make money, then get out.
1
I would think the fact that Whitaker is part of a criminal investigation that the Miami office of the F.B.I. is conducting into World Patent Marketing, accused of scamming, should disqualify him from being AG.
Whitaker would be overseeing not just investigations involving Trump. He'd be overseeing investigations into himself.
Like everything else that emanates from Trump, this stinks.
4
I thought a farce is supposed to be funny.
From bad to worse: two grossly misleading articles on Whitaker's appointment, one falsely claiming the appointment to be unconstitutional and illegal and the other correctly claiming the opposite, but for the wrong reasons. Astoundingly, neither piece actually quotes the pertinent text of the Constitution which is decisive. To wit: The president has the "power to fill up all vacancies that may happen during the recess of the Senate...." (Article II, Section 2). Importantly, the Senate was in recess when the president appointed Whitaker. Moreover, the principal officer" differentiation presented by both misleading articles is a nonsensical non-sequitur nowhere to be found in the text cited, Article II, Section 2. Perhaps the authors of both conflicting articles as well as their editors should try reading the actual text of the Constitution; it does not bite and can be most enlightening. They also may want to consider how the fact that Mr. Whitaker actually was confirmed by the Senate when he became US Attorney in Iowa affects their questionable assertions that he was not previously so confirmed.
1
So, you and Alan Dershowitz seem to be missing the point. Donald Trump is trashing the US Constitution with the full support of Republicans in the two institutions that are supposed to be providing oversight: Congress and the Supreme Court. The genius Founding Fathers apparently did not think it possible for Americans to ever become so stupid, so deluded that they would willingly accept an authoritarian in the White House. The President pushed the Attorney General out (Sessions own words confirm this) in order to put in a temporary appointee who will squash the investigation into the criminality of Trump's various "affairs." But, by all means, spend your time and your intellect writing a piece for the New York Times about how this is not unconstitutional. The Constitution is in shreds in the backyard of 1600 Pennsylvania Avenue. Do wake up, Professor Vladeck.
1
Thank the non-existent gods, a pundit with thought processes that are NOT Trump=deranged. Thank you, thank you, thank you. The public mob is rabid, a worse thing for any nation than a distasteful President.
1
Mr. Vladeck’s analysis suggests he believes policy cannot be considered when interpreting the Constitution. That isn’t the case now, nor has it ever been.
Is it policy to consider original intent? If Mr. Whitaker is authorized “to perform the functions and duties of the vacant office temporarily in an acting capacity,” can we assume either a function or duty of the U.S. Attorney General is to dismiss investigations of his superiors without justification? Did Mr. Whitaker not swear to uphold the U.S. Constitution, which in its Preamble sets down the establishment of justice as a fundamental purpose of the document?
It’s impossible to design unassailable law to cover all instances where it might apply. Thus, we either allow judicial interpretation to plug the cracks in our ship’s hull, or we let our ship sink.
I guess it’s up to the senate republicans to show their independence. Don’t hold your breath expecting anything courageous from these guys.
Rod Rosenstein should have been who replaced Sessions.
Trump is thinking no one will notice because Trump believes that most Americans would not know anything about this.
The professor who wrote this piece works for the University of Texas so this is written with an obvious conservative political slant.
1
Sounds like a good legal analysis, but why didn't Mr. Vladeck rebut the prior opposing viewpoint in the Times which addressed the Southwest Ambulance U.S. Supremes case. Another poster also mentioned that Mr. Vladeck didn't quote the full statute he referenced requiring that only an "assistant" could be appointed. Is a chief of staff considered an assistant?
1
Dear Editors, You do not serve the public purpose of your paper by publishing correct but toxic information. In case you didn't know, something may be legal without being ethical. It's unethical to stand around and watch Whitaker while he's diminishing, throttling, or extinguishing the Mueller probe on a temporary basis, because it will then be permanently gone.
13
Then it's clear that the law needs to be changed, if you already have a principal that has been vetted, they should automatically move into the vacant seat. If a sitting president wanted to then nominate someone else, in Trumps case a loyalist that will violate the separation of the three branches of government.
I believe that Mitch understands that much, that a dangerous precedent would be set, and republicans would have no room to whine if a sitting president were a democrat, and he shuts down a legal investigation against himself, Nixon tried the same thing.
I think Mitch, should put new tennis balls on the feet of his walker, and shuffle off to the white house in his bunny slippers, and inform his president that this would surely set off a fire storm with the democrats rightly asserting that we've failed a major tenant of the constitution, and would surely turn off the more moderate republicans.
The democrats need to be taking notes, then beating this drum, during the run up to 2020. Trump can be be beat, his policies are hurting the stock market, gains have been lost, prices will continue to rise due to the trade war.
The democrats need to show that Whitaker is more than unqualified, he's dangerous, he doesn't believe in the courts rendering decisions, he thinks that the "creator" is the answer. These are people trying to create a theocracy, based on a religious dogma. There is a reason for separation of church and state, and Whitaker is one good reason.
Trump has a worthless Pogo stick jumping around with this temporary appointment. Nothing good will happen with this, Mr. Clean, baldheaded look because he resembles a storm trooper that even Mitch McConnel would be afraid of. Mr. Whitaker is surrounded by real G-men that will pin a " kick-me" sign on his back and it will be after lunch time before he figures out that he is a goat. His only hope is to sit behind his desk and not answer the phone.
He is worse than " bad".
He is criminal.
Did you not read about his company where he fleeced then threatened his clients?
He should be sharing a jail cell with trump.
Treasonous both of them.
1
In other words Dems - deal with it.
Some are born great
Some achieve greatness
Some have greatness thrust upon them
1
To the Editors - Please invite Katyal and Conway to respond to this, immediately. Most of your readers (including me) are simply unable to sort out a stark difference of opinion among such august disputants, without a more extensive exchange. Yet, public opinion clearly matters in how this plays out - viz. the reality show barker's comment earlier today that he didn't "know Matt Whitaker."
2
Rachel Maddow's rundown on Matthew Whitaker last night made it more than clear that the guy has no place in government. He's a crook and should be doing time. How long will it take the Times to nail down this guys bio and print it for all to see? Or will they "kill" the story?
1
Dear Professor Vladeck,
Thank you for your pedantry. You'll surely be remembered for being careful to stop and scoop up the change on the ground while the firestorm rushes toward you. Good luck in your future career as the cautious respectable moderate voice on Fox News.
3
So basically the other op-ed was wrong.
Shall we call this "wave #1" of the dissembling apologists?
The Eaton case is misinterpreted. Professor Vladeck says that the S. Ct. rejected the argument that only a principal officer confirmed by the Senate can temporarily fill the shoes of another principal officer. I can see nothing in the case that indicates that argument was ever raised, so how can it have been rejected? The situation in Eaton was one of necessity, in which the only reasonable solution was to temporarily vest someone with certain powers. Also, the consul was in fact granted a leave of absence, so in theory could have returned to his duties.
Public reaction can be a story in itself. What follows would be worth distilling.
1
I think it is not clear that this appointment is legal. It is, however, becoming increasingly apparent that he may be a crook. A felon as AG? Hmmmmm . . . . how does that work?
1
Whittaker is too short-sighted to see how his entire career will be the subject of investigations. He'll be dragged through the mud and have to resign in disgrace. Looking forward to it.
1
I am unconvinced by this argument. There exists a line of succession in the framework of the justice department. A chief of staff is not a functionary within the justice department. A chief of staff minds the flow of an office, not the content of legal matters. He doesn't make decisions about cases, but, rather, about the staffing of an office. (More like a human resources manager). The deputy attorney general is next in line when the attorney general is vacated. So, no, Mr Whitaker is not an appropriate choice to fill Mr Sessions shoes. His appointment is well out of bounds.
3
The man is a CROOK. He is under FBI investigation - until he stops it. In what universe is that "okay".
Not mine. Not now. Not ever.
3
It seems to me "BAD BUT (BARELY) LEGAL" is Trump's stock-in-trade. After al, isn't that a fair description of everything he's ever done? (I'll grant you--some of it's probably illegal, although he's managed to get away with it.)
1
In other words, sorta legal, but there’s turtles all the way down.
1
Sorry, Mr. Vladeck. As a law teacher, you likely would give a “D” or lower to a law student who presented this argument claiming Eaton as dispositive. As you know, Eaton was factually inapposite, i.e. it was an “emergency,” not a Presidentially created event. Your feckless argument would vitiate not only the succession law, but the words and historical underpinnings of this specific portion of the U.S. Constitution. Sorry, your view/analysis is neither substantive nor viable. Go back to the books.
3
Trumpty Dumpty wanted a wall
But Trumpty Dumpty had a great fall
Now some of our soldiers
All very brave men
Are headed for Texas
With nothing to 'win' .
1
Eric Holder was a radical in the 60's who took over a college ROTC. IS THAT a good choice?
1
Isn't it interesting that we are having arguments about allowances for the maximum time that the clearly described process of the Constitution can be ducked? This author says, in this case, 210 days, referencing "the law". Well, we all want to live under law, I hope. But it's astounding how very undetailed the Constitution actually is.
Just over three years ago, a Supreme Court Justice died. The Senate of the United States failed to do its Constitutionally described duties regarding the then President's nominee, for nearly an entire year. There were no arguments about "the law".
The lesson we should be getting is a difficult one: We can't assume that the Constitution is sufficient to guide our governmental processes. When conspiring actors break commonly accepted and long practiced traditions of fairness, our Constitution, lacking sufficient details, does not protect democratic process. Democracy breaks under the load and whatever transpires can be decidedly totalitarian.
So in the present case, we argue about whether the President is permitted to bypass the Constitution, temporarily, and for exactly how long. But it is only by chance that Mr. Vladeck can find a legal reference to 210 days! In the likely far more critical case of how long a conspiring Senate majority can delay and deny confirmation hearings for a nominee to the Supreme Court, we acceded to rank totalitarianism, lacking a legal basis for an argument.
3
Thank you for this coherent explanation.
Clearly the 1998 law needs to be revisited.
The reasons that Sessions recused himself (conversations with Russian ambassador, lying to congress) should perhaps be the reasons Mueller should subpoena him as part of the investigation into Russian collusion, now that he is just a regular citizen. But, perhaps immunity from prosecution was all part of the resignation deal, which included such heartwarming acts as Sessions smiling as he left the building and shaking hands with, among others, Whitaker.
1
Trump is clearly working a flawed process to his advantage, but this piece is persuasive.
The only opening I can see is the Eaton decision's wording that an inferior, non-confirmed official may be appointed only under "special" conditions. An elective resignation timed to coincide with a Senate recess, as permitted by the 1998 Vacancies Act, may not rise the standard of "special" conditions, especially when weighed against the value placed on advice and consent in the Appointments clause. The conditions have to be pretty darned special.
18
@Andy, isn't the Senate officially still in session?
4
@Will McClaren
No
Why is it (as the author claims) a conflict of interest for this person to have publicly denounced the scope of the Mueller investigation? Any nominee is going to have a view on the investigation, and is free to exercise his/her given power to guide the investigation.
A conflict of interest is premised on the existence of a duty owed to someone other than the US citizens, and that conflicting duty limits the officer's ability to properly represent the interests of US citizens.
Getting this basic concept wrong makes me question the balance of his legal analysis.
8
@Gregory Paul The author didn't cite the conflict of interest as a reason to challenge Whitaker's appointment, however, but instead claimed that it was not a reason to challenge the appointment.
That said, I think you're defining "conflict of interest" extremely narrowly, as defense attorneys do. In this case the conflict has to do with Whitaker's adverse opinions about the legality of the Mueller investigation cannot be based on his knowledge of the investigation, since he was not a party to it and Mueller hasn't said one word in public; therefore it's based on political partisanship.
Mormons say that one should avoid both sin and the appearance of sin. This surely qualifies as the latter, whether or not as the former.
5
@Gregory Paul
The author may mean that Whittaker's "unabashedly partisan" view of the Mueller investigation imposes on him a professional duty (i.e., according to legal ethics) to recuse due to the appearance of prejudice ?
4
@Gregory Paul I agree with you that the supposed conflict of interest does not disqualify Mr. Whitaker from the position. I think you bring up a great point and state it very well, that any nominee will of course have to have a opinion of ongoing issues and it's their job to exercise their powers using their best judgement, within the bounds of the law.
I disagree with you putting too much importance on this particular point of Mr. Vladeck's, though. I don't think that he was arguing that Mr. Whitaker is technically, legally disqualified from the position because of any presumed conflicts of interest. I think Mr. Vladeck was stating his own opinion, which is shared by many people, that some of Mr. Whitaker's past statements and actions at least *look* bad.
I know I am restating what some other replies to your comment have said, but I think it's worth noting that ethics generally exists, and must exist, separately from our actual, detailed laws, since we cannot legislate for every particular circumstance that plays out in life. Therefore, in many (most?) situations, bad or unseemly actions are prevented not because they are technically illegal but because a person would be looked down upon and shamed by society and the people around them if they carried out the action.
I think Mr. Vladeck clearly states that yes, technically, the appointment is legal, even though he himself finds it unseemly. So it can only be challenged via public outcry, or by changing the laws.
6
"[D]ies, resigns, or is otherwise unable..." There's no indication that Jeff Sessions is either dead or unable, so Trump rests his hat on "resigns."
We must assume that Congress drafted the law this way intentionally, and intentionally did not include firing of the officer by the president. A firing by the president would be too easy a way for the president to avoid the appointments clause.
So the question becomes whether the word 'resigns' can be interpreted to include a forced resignation. I don't think it can. To allow that would be to vitiate the law. It would, once again, become too easy for the president to avoid the requirements of the appointments clause by simply demanding a resignation.
Indeed, it seems to me that the law has to be interpreted to apply only to a voluntary resignation for reasons exogenous to the job itself--e.g. family matters or personal issues. That would be a difficult standard to enforce, but we cannot ignore constitutional requirements for convenience.
41
@Justin
Agreed. I would add that Mr. Sessions submitted his resignation at the President's request, and after his Chief of Staff, Gen. Kelly, told him on behalf of President to do so. In otherwords. Mr. Trump effectively fired him. The federal vacancies act does not apply.
6
@Justin Yes--it's called a constructive discharge and it is a basic issue in employment law. It is absurd that a forced resignation in this situation would not be treated as tantamount to a firing.
6
@Justin I agree with the sentiment of your argument, but I think the really important thing you said is, "That would be a difficult standard to enforce." It would really be next to impossible to enforce, unless Mr. Sessions has a change of heart and publicly states that he did not willfully resign.
Yes, there could be an investigation or a lawsuit, and maybe a court would somehow find that Mr. Sessions did not willfully leave his position (even though he directly, publicly stated the opposite), but that finding would be challenged and appealed and ultimately would go to the Supreme Court, right? And I cannot see them creating a precedent that a public official's own words stating that they resign can not be taken at face value.
The only exception I can see is if Mr. Sessions were somehow being blackmailed. In other words, if he had actually wanted to force the President to fire him (in the same way the President was forced to fire Mr. Bharara), but he could not because of some damning information about him that would be released if he were to do that, then that would be illegal.
But if Mr. Sessions simply resigned willfully out of loyalty to his party, or in deference to the President, then that is not illegal, and we can't claim to speak for him and say that he was forced. He was not forced. He could have refused like Mr. Bharara. But he didn't. He resigned.
Whitaker is not able to serve in the position, temporarily or otherwise. What isn't mentioned is the remainder of the statute you rely on (and kindly provide a hotlink to), which reads, in part:
(1) Notwithstanding subsection (a)(1), a person may not serve as an acting officer for an office under this section, if—
(A) during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, such person—
(i) did not serve in the position of first assistant to the office of such officer....
I don't see how a mere chief of staff is a "first assistant".... First assistants are assistants or deputies.
Anyway, I suppose trump could force a special session of the Senate to get this guy rubber-stamped, er I mean confirmed. Hello dictatorship.
35
Everyone here is concerned about the Constitution, up down, left right, in out, black or white. Although these are important concerns, it may only be another Trump deflection. All Whitaker needs is one hour / day or so to review Mueller's findings and pass that on to Trump so a defense plan can be initiated. Nudge nudge, wink wink, know what I mean? know what I mean?
16
Mr. Vladek ignores a fundamental principle of Constitutional and legal analysis. Wherever possible, the text of statutes and of the Constitution are to be read together, not in isolation. Put another way, the statute must be read in light of the terms of the Constitution. The Constitution requires Senate approval of heads of departments. The statute Mr. Vladek discusses permits the temporary appointment of inferior officers as the head of the department under the terms he discusses. Mr. Vladek’s strictly “textual” discussion involves the statute, but ignores the Constitutional requirement. Taking both into consideration, temporary heads of departments chosen by the President must be approved by the Senate. In this case, it means, for example, that a deputy attorney general (who is a person currently approved by the Senate) may be appointed as the temporary head of the department. A mere member of the department like Mr. Whittaker (who admittedly years ago was approved as a US Attorney by another Congress, for another president), cannot be appointed because he has not been approved by the Senate. Over and over again, Republican policymakers play fast and loose with the Constitution, and this is a dangerous thing for all of us.
2
I suspect the unconstitutionality of Whitaker's appointment is not that clear cut.
Otherwise, if the appointment is truly unconstitutional, why hasn't it been challenged in the courts yet?
What would it be required for somebody to sue to protect the integrity of the Constitution?
I imagine the ACLU is free to sue whoever they want. After all, they have just sued to protect immigrants against Trump's new asylum ban.
2
@El Lucho
A lawsuit takes more than 2 days to compose.
1
This essay, at least, does not make the case.
How does the firing of the Attorney General by the President create "special and temporary conditions”? And how does the firing of the Attorney General by the President meet the criteria cited from the Federal Vacancies Reform Act of 1998 which supposedly fills in the meaning of these conditions -- when a senior executive branch officer “dies, resigns, or is otherwise unable to perform the functions and duties of the office"?
Sounds like quite a logical stretch.
8
@MPS - Unfortunately, Sessions apparently decided to save face, and maybe also to offer a last expression of loyalty to Trump, by resigning rather than be fired, even though he said in his letter that he was resigning "at the request of" Trump, and even though everyone knows that means Trump would have fired him if he hadn't resigned, it still means that for the purposes we're discussing, at least technically for now, that Sessions resigned. Maybe if all of this went before some judicial body, they'd decide that "at the request of" should actually be interpreted as Sessions having been fired, with all the implications for Whitaker's appointment that this would entail, but unless that's decided, it might be that Whitaker can go forward as if Sessions resigned without any caveats, at least until it's decided more firmly which of the issues with the appointment might be deal-breakers for Whitaker and Trump.
Since the President demanded Sessions resignation, that excuses the fact Sessions was actually fired. And Sessions chose not to fight it because according to other reports in NYT today, Sessions wanted out ant he decision to bring Whatker in was made in September but to wait until after the Elections so as not to risk losing voters.
United States v. Eaton aside (as well as the nagging question of "did he fall, or was he pushed?" that is suggested by Sessions's *undated* "resignation" letter), I thought that there was a specific Justice Department-related statute, and the question was whether the general vacancies statute overrode it, which this author does not seem to address.
3
For starters, please define “temporary”. A week? A month? A year?
1
@jseamans
The author states it's 210 days.
I cannot help but wonder if is this another one of these instances where those who wrote these laws could not have imagined the possibility of an individual such as the one we are now saddled with making this "temporary" appointment?
Just like they did not provide FIRM laws against a president profiting from his position and instead relied on the honor system dutifully followed by normal presidents, the abnormal president is now lining his pockets every single day because, as he gleefully informed us, he is not REQUIRED to relinquish his businesses.
It seems that several issues relating to the presidency need to be legally tightened if we survive this nightmare.
1
@jseamans--Vladeck wrote "210 days".
If Trump firing Comey is obstruction of justice it would seem that firing Sessions to appoint someone to shut down Mueller would be another count of the same crime.
I would assume that if Mueller could legally be fired he and his staff could also be legally hired by a House committee to finish their work. Same goes if the DOJ tries to suppress his report.
2
Hmm...I'm no lawyer, nor a scholar...but since when did Chief of Staff's (fancy term for team-lead of a staff) ever become qualified in the line of succession? For any job?
The fact that there are qualified, Senate approved occupants in the normal and legal line of succession - should exclude random appointments.
Of course the appointment is nothing but more of Trumps upending of norms and challenges to rules and laws, and of course there will always be an argument (forced or not) to support such things. But I fail to see how anyone other then Rosenstein should be appointed. Most certainly a Chief of Staff should never be deemed worthy of succession for any position even on a temp status. And 210 days is hardly temporary. It wouldn't happen in Trumps Businesses, or any other, and it shouldn't happen in Gov't.
Clearly Trump is now feeling the time is right to strike at the DOJ, and as such the Mueller investigation - feeling the walls closing in, a collar waiting for him to wear...so he's making a run for it...
This is one more of the thousand self-inflicted cuts that I predict will bring this presidency down. Its not gonna be a big chopping off, or a well timed and placed strike - nothing singular (maybe those tax returns?) is gonna do it.
Rather an accumulation of self-inflicted, wounds...all left un-bandaged...that will bleed him and his miscreant band of deplorables out.
4
@Boregard
I agree about the "thousand self-inflicted cuts" but they are also inflicted on us, and are we going to survive this?
1
Matt Whitaker is illegitimate.
Anything this constitutional nothing-burger does can be contested in court.
There is no emergency enabling this appointment - even if it were legal - it is not.
The CONSTITUTION, not a congressional law, says Principle officers of the United States MUST be SENATE Confirmed [PERIOD]
Rosenstein or the Solicitor could have been LEGALLY installed because they are Senate confirmed.
Why did tRump pick a partisan warrior?
Hmm. Maybe a newspaper will tell me.
3
It may be just me, but don't all of Trump's buds and appointees look like they're from "Goodfellas" central casting?
3
We are now the world’s leading axis of evil with a Congress that bows to anger and confrontation as a mode of rule. The world watches in fear of its future.
3
So what you are saying is that it is ok for the President to make a temporary appointment to the office of Attorney General for 210 days, and then he could make another temporary appointment for another 210 days, and etc., and thereby completely circumvent the approval process by the Senate. According to that judgment there would be no compelling legality for the President to ever get the approval of the Senate for any of his appointments as long as they are "temporary" and rotated every 210 days. Somehow I don't think the law professor has thought this through carefully.
51
@W.A. Spitzer I'm not sure the professor is correct in his analysis, but your post makes it sound like he is professing his political opinion that it's "OK." He's not as far as I can tell. He's giving an opinion of what he believes the applicable law happens to be. Under federal law it is OK for one to discriminate against someone based on sexual orientation (there's no statute against it), but that doesn't make it "OK."
The wording in the Constitution is plain and simple. The laws subsequently enacted regarding temporary appointments do not obviate the constitutional requirement for the Senate's consent to the appointment. The argument that this may be inconvenient to orderly government is not even slightly convincing. The appointment is illegal, and any claim to the contrary should be tested in court.
7
Or any senior official ... who served in the same department as the vacant office for at least 90 of the previous 365 days.
"Served". Whitaker was Chief of Staff, not acting in any capacity related to the duties of the department of justice. One would think the intent of the statute was to appoint, temporarily, a person with agency experience to occupy the position. If the definition of "served" includes anyone who worked at the Justice Department, could not the president could appoint the janitor as "Acting" AG?
3
Vladeck doesn't address the implication of Section 508, passed AFTER the FVRA, which specifically limits the replacement of the AG to the Deputy AG:
"In case of a vacancy in the office of Attorney General,” the deputy attorney general “may exercise all the duties of that office.”
This would seem to undercut his, and Trump's, position substantially. This seems consistent with other Trump legal positions: shaky ground, but he's daring anyone to take him on. And now he (and the sycophants around him) feels he has a court that has his back (because that's his yardstick for everything) and emboldened.
5
Thank you for informing us of this. The article is not persuasive as he rightly comments about a Senate hostile to the President. I wonder how he feels that applies to Merrick Garland. Does the law apply to that I wonder
1
@Wayne
You mean "incorrectly," not rightly. I was wondering about this too.
The primary concern about Whitaker's appointment is obstruction of justice.
This opinion raises a secondary concern, that Whitaker has not been scrutinized by Congress. The article by Katyal and Conway pointed to the constitution to admonish Congress to perform its duty, saying..
"Because Mr. Whitaker has not undergone the process of Senate confirmation, there has been no mechanism for scrutinizing whether he has the character and ability to evenhandedly enforce the law in a position of such grave responsibility. The public is entitled to that assurance..."
6
United States vs. Eaton, the principal case precedent used by Mr. Vladeck to support his position, involved the replacement of the consular general to Siam who stepped down due to serious illness. In the present case, the principal left office due to an act of the president (he was fired); thus one could easily argue that such actions allow the President to deliberately bypass Constitutional requirement by firing a Senate approved principal, then substituting a temporary political hack to carry out their own agenda. Even a non-attorney (i.e., me) can see the difference.
8
@Tom
Apparently, legally speaking, though I'm not a lawyer so correct me if wrong, Sessions was not fired because he submitted a letter of resignation. I guess if one is requested to resign and then submits a letter of resignation, legally anyway that constitutes a resignation rather than a firing. I think Whitaker is bad news, but I'm doubtful that his appointment is illegal.
1
@Bruce Culver Except the letter stated "At your request", which constitutes an action by the president to remove Sessions. I think any reasonable person would call that a"firing".
4
@Bruce Culver Then the easy way around the constitutional requirement would simply be for the President to request (or force) resignations from "principals" and appoint "temps" to bypass Senate review. Theoretically, this cycle could continue for the entirety of a presidential term, such that principal positions are occupied by a revolving roster of temps. The president could simply delay submission of nominees to the Senate. In the meantime, temps could inflict significant damage to policy. So, I still don't think this would withstand legal challenge, and if it does, look out.
This snotty little article is based entirely on the unstated assumption that the Congressional act it relies on is constitutional. If that isn't so then the argument fails. And it's not as if courts don't find acts of Congress unconstitutional. Professor, that's what Marbury vs Madison was all about.
3
Pre Christmas observation on this Trump appointment:
Bah! Humbug!
1
Even if the appointment is technically legal, a questionable conclusion, it could be challenged if it was done for an illegal purpose i.e. obstruction.
7
@B. Windrip Look up Unified Executive Theory. Then look up Prof. Dershowitz. Even a first-year law student should know and understand that the President can appoint regardless of his intentions.
The obvious problem here has nothing to do with Whitaker's appointment.All of Trump's appointees must first have expressed great disappointment with the operation /or existence of the department they're charged with running. The elephant in the room is Trump's firing of Sessions without cause. His resignation was a sham and everybody knows it. There is a crisis, and if it is not a 'constitutional' crisis, it does not speak well of our constitution or the people who have sworn to protect and uphold as it turns into to a diminished document.
7
@Kirk This is an in your face example of the craziness of the unhinged anti- Trump fanatics. Are you a semingly literate and probably intelligent person actually saying that Trump the duly elected President exercising the power given to him by the constitution needed cause to fire Sessions?.That is an absurd notion. It is of course your right to think he should not have and despise Trump as much as you want. Instead of engaging in this non stop barrage of ridiculous daily attacks on Trump who in spite of your hatred does possess the power of the Presidency, simply work to defeat him in the next election. Hardly a new or novel concept
1
Everybody knows all this. But there indisputably isn't anything remotely "special" in the present circumstances which can with intellectual honesty be claimed to require a temporary appointment. It would take Trump about two minutes to get the Senate to confirm his choice. This is just Trump ignoring the Constitution for as long as he can. How long will that be, and how many times will he do it? Whitaker doesn't sound like a very good lawyer, but there's no reason to believe he isn't confirmable by a Senate as interested in protecting Trump as he is himself. Trump took an oath to preserve, protect and defend the Constitution. He has broken that oath more than once since his inauguration, and this isn't the worst instance of it. The question for all of us is how long will Congress appease his Constitutional transgressions, and how much damage will the Constitution suffer?
5
Can anyone speak to why 5 U.S.C. § 3345(b)(1) applies and not 28 U.S. Code § 508 - Vacancies?
2
Mr. Vladeck must have gone to Trump University to study law after he graduated from Yale law school.Totally farced arguments.
3
But of course greater legal minds disagree.
1
It seems our current POTUS administers by finding and utilizing the soft spots in laws/traditions/precident that no would have ever expected a POTUS to do. This was how he ran his business too. SAD.
4
Whittaker is nothing but a hired button man to cut off funding to the special prosecutor A flunky with 14 jobs in 23 years; most of those at his own little shop in (of all places) Iowa, under the watchful "hawkeye" of Steve King. He will be foisted on Trump's petard as soon as he serves his limited purpose. Making way for Chris (if MaryPat approves) or Pam Bondi
1
@Big4alum--I think Whitaker's main purpose is to find out what Mueller has on Trump and pass that on to Trump's lawyers.
Of course it is legal. So is having a President not elected by the majority of the people. So is having a Congress elected by the minority. So is voter suppression, "stand your ground", and police shooting unarmed black kids.
7
You are missing the point. This is not about the inside baseball legal arguments about an 1898 case or a 1998 statute. It’s about how the left and their MSM mouthpieces cry wolf every time the President they hate takes action. If Trump started across a crosswalk and halfway across the orange don’t walk sign began to blink, the Trump haters and their Acosta-like media operatives would scream “jaywalker.” This new approach to “reporting” the news is responsible for much of the divisiveness in the country today. And it is why Trump is correct when he says the media who adhere to this new approach are acting like enemies of the American people.
1
Whitaker.....is NOT a legal choice for Attorney General;
He has not been examined by the Legislative Branch of the
US Congress....hence: at this time he has NO authority.
1
Grifter hires grifter. The details don't matter.
4
It’s quite clear why Trump skipped over the obvious and very qualified Rod Rosenstein who had been confirmed by the Senate for his position as Deputy Attorney General in favor of Mr Whitaker. One thing about Mr Trump - he is obvious. Both Mr Whitaker and the new Justice Kavanaugh have the qualities Mr Trump requires above - loyalty to himself.
I’m sure that even if the appointment is legal, ethically Mr Whitaker should recuse himself from anything to do with the Mueller investigation- he’s made it abundantly clear that he is biased. The same for Kavanaugh, he has made his bias clear on matters concerning Democrats. But I’m also sure Mr Trump made it clear that recusal is not an option, especially for Mr Whitaker.
Me Trump is scared, that too is obvious. He knows what he and his family did and he knows Mueller is getting close.
2
Legal is like “Might is Right!” Just because something is Legal, it’s absurd to classify it as Right or Good. Want to see the final downfall of the Republican Party? Let the present Senate filled with Republicans give Trump the go-ahead to the current acting Attorney General.
1
Seven months is not "temporary." And while I rarely agree with Bret Stephens, I agree with what he wrote today: if Trump does not withdraw his stooge from running the Justice Department Whitaker should be impeached.
5
The President can circumvent all this by simply co-signing all official documents of the acting AG.
So what's to stop a President from doing this over and over, replacing one flunky after the next before the 210 days expires? This law clearly violates the advice and consent section of the Constitution as it provides a way to subvert the original intent.
2
Whether one likes or dislikes President Trump, the official resignation of AG Sessions, the qualifications of Acting AG Whitaker, or the investigation by Special Counsel Mueller is one’s personal opinion. The temporary designation of Mr. Whitaker as Acting AG is in compliance with the law, i.e. The Federal Vacancies Reform Act of 1998 - key extracts are listed below.
The bipartisan Congressional Report Services (CRS) provided a good summary in September 2018 on the interpretation and application of this law. As noted by the CRS the law does not address a situation whereby an individual was “fired” vs. resigned, although such a situation was debated on the Senate floor prior to passing the law.
The President will soon nominate a permanent replacement for the AG, which the Senate will then accept or reject as per the Appointments Clause of the Constitution, Article II, Section 2, Clause 2.
In the interim, TGIF, and wishing all a Happy Thanksgiving.
The Federal Vacancies Reform Act of 1998, SEC. 151.
(a) If an officer of an Executive agency … resigns … -
"(1) the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity ...
"(3) notwithstanding paragraph (1), the President (and only the President) may direct an officer or employee of such Executive agency to perform the functions and duties of the vacant office temporarily in an acting capacity … for no longer than 210 days …
1
@Roane Thorpe
The portions of The Federal Vacancies Reform Act that you cited exist. True. But they appear to conflict with the Constitutional requirement for Senate confirmation. Has their constitutionality ever been tested?
1
I'm not a lawyer, so I'll let them that can, argue that "legal" point. However, "bad' is a term I can weigh in on. Let me suggest a few other adjectives.
Horrifying
Lethal
Incomprehensible
Mutant
Satanic
Corrupt
Corrosive
OK - done, for now.
2
I am curious. All these people who work to subvert the law and democracy, praise authoritarinism, etc. Do they celebrate
July 4th, Independence Day? And if they do just what are they celebrating. They can't be celebrating any of the values this country was founded on except from a point of view that perverts all of our ideals and enshrined by our forefathers.
2
It is not a “special” circumstance when a President fires his AG. Death, dementia, car wreck, murder, alien abduction would undoubtedly constitute special circumstance. But bypassing the second-ranked Justice Dept official to select who is in effect a barking dog is a clear flouting of the Constitution, legal precedent and, not least, the smell test.
10
As Bishop Talleyrand said about the act of a famous leader, " it is worse than a crime, it is a mistake."
1
US v. Easton concerned the replacement of an inferior officer (consul of Siam), arising from truly exigent circumstances (his illness), where no other Senate-approved officer was available as a replacement (vice-consul was absent from Siam).
Here, we have the replacement of one of the most important principal officers of the federal government (Attorney General), arising from circumstances long in the making by the President himself (coerced resignation undertaken in public view), where several Senate-approved inferior officers are available and qualified (e.g., Rosenstein) to serve on a temporary basis.
One needn't be a Professor of Constitutional Law to see that US v. Eaton provides scant authority for Mr. Trump's brazen actions.
4
This column has the correct legal analysis.
And perhaps Whitaker's critics should wait to see what he actually does, rather than creating conspiracy theories that happen to suit their partisan biases. I'm sure that Mr. Mueller will have no trouble (1) resisting any untoward involvement of Mr. Whitaker and (2) in any event, letting us know about any attempted interference by way of his report or a public statement or leaks from his office. Then impeach to your heart's content.
So my advice is to give it a rest for a while. Or don't, and, if possible, lose even more credibility with most of the American public.
1
@Uysses Lose even more credibility with most of the American public?
The "American public" doesn't want a bunch of shady crooks running around in our government halls, gathering up up the Ivy League and the country club to rub elbows with.
The "American public" doesn't want a proven cheat like Whitaker to have influence over justice.
The "American public" disapproves of Trump by 55%. Think of that . Almost 2 of every 3 people are disgusted by the sleaze. The midterm elections proved that.
God, I can't wait till 2020.
1
@Uysses
Do you really think Mr Sessions was fired and Mr Whitaker was appointed for any reason other than to interfere with the Mueller Investigation. Mr Trump is never subtle - he knows Mueller is getting close, he knows what he and his campaign did and he put in a guy who will be his ‘Roy Cohn’ and save him.
Concern is warranted. Making sure Mr Trump, Mr. Whitaker and Mitch McConnell know they are being watched is vital.
2
So, you idea is to wait 210 days till new AG, while Mueller is facing problems?
This is an interesting argument but seems to presuppose the constitutionality of the Federal Vacancies Reform Act. Mr. Vladeck outlines why vacancies could be deleterious to the function of the Executive branch, but as Katyal and Conway describe in their article, there is precedent for arguing that this doesn't give license to the executive to circumvent Article II. Further, Mr. Vladeck's own description of the Supreme Court's 1898 decision specifically mentions an inferior officer, but my understanding is that there is no actual list in the constitution of such officers, only that the Congress can outline who is responsible for confirming such officers. Thus, even if the 1998 law allows for the temporary appointment as Mr. Vladeck describes, that does not mean that such an appointment is indeed constitutional. As Mr. Whitaker's least favorite decision Marbury v Madison describes, that is ultimately up to the Supreme Court.
4
Mr. Sessions, as Attorney General, was not a career employee subject to laws and regulations defining the conditions under which a career employee could be terminated, i.e., fired. Mr. Sessions served at the pleasure of the President after having been confirmed by the Senate. In this position, the President requesting that Mr. Sessions resign is the same thing as firing him. He served at the pleasure of the President, and the President requested him to resign. In other words, he was fired.
7
A more accurate headline to reflect the op-ed's content (and to inform readers) would have been, "Whitaker May Be a Legal Choice, but It's a Bad One."
7
If Whitaker acts to disable or kill the Mueller investigation the act will add yet another layer to the obstruction of justice case against Trump.
5
Sessions was not fired because he submitted his resignation at the President's request? Come on! That's being fired!
6
@SandMtGuy
Sessions should have resigned subject to Rosenstein becoming the acting AG.
That would have forced Trump to fire him.
2
The longer Trump is in office we learn legal loopholes are the defining factor in what was supposed to be a system of checks and balances between branches of the government to protect the integrity of institutions.
The past two years have been ugly revelations on how insiduous the incestuous relationships are in Washington between corporate interests, law firms, lobbying both foreign and nationally and elected officials. All operating in their best interests with legislation and constituents after thoughts.
4
Trump and Whitaker are not about to stop Mueller and the investigation. Much ado about nothing.
This is just media hype to create a story which is nothing more than a temporary appointment they don't like.
@Mr Chang Shih An
How on Earth can be so sure about that?
How can he possibly be LEGAL without being vetted by Congress?
3
Interesting that Lawrence Tribe says in no uncertain terms that the appointment is not legal.
2
Agree with most dissents (?)
Sessions was fired. People who resign don't ask to stay till Friday and are told "no".
Automatic secession (s)
3
@Chuck Jones That, as the author makes clear, is something for the Legislature to put into place. It would be a fairly simple law to write defining a clear line of succession within departments. Congress has never found it important enough to do so, however.
The president is obviously trying to erect barricades to avoid discovery of and consequences for his illegal activity. If not, he would let the investigation reach its logical conclusion.
So I have to wonder what motivates someone like Professor Vladeck to write specious arguments in defense of the president's efforts to obstruct.
3
Why not Avenatti then for Speaker of the House?
It is by the rules.
Solid Grounds.
3
I like this idea. It's true that the speaker doesn't have to hold any particular qualification, doesn't even have to be a congressperson. Avenatti could spend the next two years using the power of the speaker's office like a surgical blade to cut away the lies and expose Trump's crimes. And we wouldn't have to rely on whether or not Avenatti is actually qualified to be a congressperson, since he would not be able to vote. At the end of that time, we can thank him for his service, send him on his way, and everyone's happy, except for new inmate Donald Trump. Hopefully they'll put his kids in the same prison so visiting is easier.
2
Mr. Vladeck is a professor of law at the University of Texas.
Well, he's definitely not a professor of ethics, in any interpretation of the word.
Resigning at the request of someone is tantamount to being fired.
Being told that you can't give even two days notice is being fired.
5
Every day since election day 2016 has been a Constitutional Crisis as far as the Left is concerned.
@TT TWISTER
Unfortunately many days have been. Where have YOU been?
Ssssions was fired. The “request” in response to which he submitted his resignation was not a request, it was an order.
4
So - let me understand...
Do we all agree that Mueller should complete his report, and review it with Congress and then with Trump and the public...
Can't think of any reason why anyone on any side of this wouldn't want this to happen - and ASAP...
Or do the anarchists just want to revel and dwell in the disruption de jour...
If history is any guide, Trump will provide you all – on almost an hourly basis – with ever more new and more interesting fodder for your cannons than you can ever lock and load...
1
Well..."legal" in the sense that we've not been bequeathed yet another financial criminal. DJT"s double negatives say it all.
It's high time this nation woke up and realized that there are far more dangerous things than "high crimes and misdemeanors," though we have DJT and his cronies on those, too.
The lies and criminal activity that our 1% and its elected minions and cronies get away with every day are a corrosive acid eating through the Constitution, rule of law, and the country itself.
And let's put to bed forever the lie that the middle class and miners and welders elected this man; never before has the 1% had a more malleable puppet in place than now. He performs to order every day.
Give me a Benedict Arnold any day. What he did now seems nearly wholesome. This is a rigged game. The country is losing so that a handful of depraved, corrupt men can prosper. Why we stand for it beggars belief, with the focus on "beggars."
Every day that man sits in the White House (and sit he does) bankrupts us morally, ethically, legally and internationally. We're the laughingstock of a world that sits back watching in a state of disbelief that anyone, much less a formerly "great" nation, stands for this level of corruption and chaos.
5
@AhBrightWings He even cheats at golf even though he spends most of his time playing it...
Of course. In fact, Professor, I can do you one better.
ANYTHING Trump does is legal as long as it is backed up by HIS Justice Dept, and HIS Senate. Period.
2
Ah yes, "l'etat, c'est moi."
Trump: "I don't know what that jibber-jabber means, but I run this country. I am this country."
1
You focus on the “temporary” part, but ignore the “special”. There is nothing “special” in this case, just the will of our so called president
2
It seems to me that the Federal Vacancies Reform Act of 1998 that the author quotes gives an order of priority in who the president can name -- first the Deputy attorney general, then any other currently serving government official confirmed by the senate or, finally, any other senior official who served in the same department as the vacant office for the previous 365 days, the last option applying only if the others are not available. This not only makes sense from a plain reading of the provision but also from a policy perspective. And it makes Whittaker last in line, not first.
5
Why do we even have laws? There is law around the appointments process. So what? Trump will do what he wants. There is specific law within the Justice Department on the rules of succession for the Attorney General. So what? Trump will do what he wants. There are rules around conflict of interest in relationships when executing the duties of the office. So what? Trump will do what he wants. Our system of checks and balances is being tested and failing, test after test.
2
There is no extraordinary need to place an unconfirmed individual in this role. If Washington has a surplus of anything, it’s well trained lawyers with a balanced interpretation of how the law should be implemented.
The appointment was made by a president with corrupt intent (i.e. - to stymie an ongoing investigation of the executive) and is therefore yet another attempt to obstruct justice.
An act of obstruction of justice is, by definition, unconstitutional.
I do not believe Trump thinks Whitaker can weather this storm, but i do think Trump expects that during the Congressional interregnum (and before being replaced) Whitaker will effectively scuttle the Mueller investigation. Thereafter, the question will be whether the investigation can be restarted. Come January, it can be expected that Trump will put before Republican Senate a more presentable AG candidate who conveniently sees no grounds to restart the Mueller investigation.
This is indeed a constitutional crisis.
2
"for a limited time, and under special and temporary conditions".
So, what are the "special conditions" in this case. The conditions are that he sitting president fired his AG and wants to put someone in the role of AG who can and will serve his own highly questionable objectives. Even if it is legal, which I doubt very much, it is certainly a violation of the actual intent of the constitution and subsequent laws. It is just another example of this president's disdain for the constitution.
4
I find it interesting that former Senator Sessions clearly stated that he was resigning at the President's request. Could it be that Sessions was aware of the of the wording of the Federal Vacancies Reform Act of 1998 and was attempting to place a check on Trumps ability to name his successor?
2
Assuming the appointment of Mr. Whitaker is constitutional, the appearance of corrupt intent by the President and acting AG Whitaker remains. There is an appearance of impropriety, an appearance of personal gain, and an appearance of subjective loyalty to do the President’s bidding (considering Mr. Whitaker’s commentaries), since there is an on-going federal investigation into Russian interference in the 2016 election and individuals involved in the President's campaign. The foundational basis of appearances of fairness and equal application of the law is being circumvented. It may be constitutional; it is still corrupt, unethical, and amoral.
6
If it's legal to have a man under investigation by the F.B.I. for his active participation in a massive consumer fraud case to be put in control of the F.B.I., it would seem that all semblance of justice has been abandoned. If it's legal for a man who is on the record multiple times opposing the Special Counsel investigation of his boss to be put in charge of it and refusing to recuse himself, it would seem that we have abandoned the "rule of law" for the rule of Trump. If it is legal for a man to be appointed to lead the Department of Justice who believes the Supreme Court is "inferior," and not a co-equal, branch of government, then we have no justice, no democracy, but autocracy.
15
"The move was legal, so long as it is temporary, which the law defines as up to 210 days. "
Not if the purpose of the move was to obstruct justice, which is precisely the topic of the investigation Whitaker was hired to shut down.
Having the Deputy AG become Acting Attorney General while Whitaker goes through the nomination and confirmation process would thwart Trump's attempt at arson on the DOJ.
6
The author notes, that the appointment is constitutional "When a senior executive branch officer “dies, resigns, or is otherwise unable to perform the functions and duties of the office,”
What if he was fired? Probably not, since confirmation by Congress was intended to keep a President from appointed an under qualified crony to do his bidding. But this is exactly what the president did in asking Sessions to resign. The clear assumption (along with death, inability to perform the office) is that resignation is a result of an inability to perform the office, not for the purpose of making room for someone willing to do the president's bidding.
12
@MGP I believe Sessions is still loyal to Trump and intentionally included the phrase in order to be compliant with the 1998 law. Whether that violates the intent of the law would be subject to judicial review.
1
I am sure mine is a debatable interpretation, but I cannot see how a "special and temporary circumstance" defines a situation of the Presidents making that has been telegraphed for months. If Congress attempts to rewrite this requirement, they might also want to think about basic qualifications.
7
The Constitution is clear that the President can make temporary appointments during Senate recess. But there is another clause that states, "but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone." So the apparent conflicting laws passed by Congress concerning these appointments must be referred to and a decision made as to which of these laws should determine the Constitutionality of this appointment. Thus, the legality of this appointment is to be found in Congressional legislation.
Very clear and well articulated explanation. Thank you for it.
1
Matthew Whitaker served on the advisory board of World Patent Marketing. It is most disgusting that Whitaker was involved in documented outrageous intimidation of clients who had been defrauded. This behavior led to charges against Whitaker's company, issuance of an injunction and ultimately a settlement for $25 Million.
How can any one but Trump defend the choice of a fraudster like Whitaker as Acting Attorney General?
13
Given his involvement with a fraudulent company Whitaker’s license to practice law should be withdrawn. Whitaker advertised for this fraudulent company, he threatened customers who had been fleeced and he was paid by the company.
9
How do we know the appointment of Whitaker is merely temporary? Just because Trump said it was? Is there anything in the Constitution that says Trump can't change his mind at some later point if he is pleased by Whitaker's decisions? It doesn't take but one day to issue a decision or several that could change the course of American history..... not too shabby for an unqualified apparatchik. There were no special circumstances that precipitated this vacancy. Sessions was fired, then replaced without any Advice or Consent. Sessions didn't get sick, die, or even resign of his own will. He was asked to go.
10
Mr. Vladeck's opinion is as empty as the skyline from the great plains of Texas. Let's not create another tall Texas tale: A resignation that is "requested" is the same thing as being fired. Consequently, there is no real or implied "right" by the President to use this maneuver to place a person who is not Senate confirmed and by your own acknowledgement is a political partisan hack to be this great nation's chief legal officer. Using your logic, the President could apply this action to each and every Principal Officer he saw fit. This would violate not only the intentions of but the written statutes already in place to prevent a corrupt President from corrupting any or all of the government.
Your argument works if the reason for the replacement was a true emergency such as death or incapacity. However, as we all know and can plainly see, there is no motivation other than President Trump's relentless attempts to obstruct justice due to personal peril that drives this action.
31
The logic employed by Mr. Vladeck that purports that a 'requested resignation' is not the same as being fired is faulty and dangerous. Following this thinking, the President could request a resignation from and temporarily replace every Senate Confirmed Officer with a partisan unqualified hack. I am sure Mr. Vladeck would agree that neither the Constitution nor the clarifying laws implicitly or explicitly intended this possibility.
5
The idea of a "Temporary" caretaker at AG is only for emergency purposes. To pretend otherwise is ridiculous. The argument in this article is that the President has a right, in emergency situations, to appoint a temporary replacement.
What emergency situation? Jeff Sessions didn't die. He didn't get hit on the head and suddenly become comatose. The only emergency situation is that Trump fired Sessions. Therefore the law in this case cannot possibly say that The President has every right to create an emergency in order to enact his emergency privilege. That's an absurd distortion of the law's intent. We might as well make firemen out of arsonists, as they are usually on the scene of the fire before all others. They are handy that way! It's just ridiculous how America's supposed leadership has deteriorated to the point where nothing makes sense.
What's next? Are we going to site Presidential War Powers to say that he has every right to use the Pentagon to call in an airstrike against Congress?
12
let's not make a big deal about trumps latest maneuver with Whitaker. If he doesn't recuse him self for obvious reasons he should be disbarred
4
In other words, this will have to go to court. And like at least half of Trump’s little whimsies, that means months of confusion, lots of tax money down the drain, and probably more court down the line.
Really, I don’t know how there can be more than three possible explanations for failing to do the simple thing, which would be to either a) have Rosenstein step up, or b) have Whitaker step up, but recuse himself from the Russian probe oversight.
It’s either that Trump’s so arrogant he thinks he can do as he pleases, or he’s so dumb he can’t see how much trouble this is, or he’s actually trying to cover up criminal behavior. I suppose he could be deliberately picking a fight because he likes them, but that pretty much falls under dumb.
Anyway, love to know how Trumpists think any of those three is okay.
4
It’s amazing how much an art teacher (me) has learned about constitutional law since 2016—mostly from experts arguing back and forth about some murky clause like emoluments that’s been taken out of moth balls.
It seems like up to now, most of our Presidents have been guided by their own ethical standards, and the ethics surrounding the office, rather than how much they can get away with... maybe it’s time to clarify some of these laws?
3
This all hinges on the definition of "resigns". There is no difference between being "asked to resign" by the President when you are "serving at the pleasure of the President" and being... fired.
Sessions was fired, no matter what Trump decides to call it.
Everyone can understand this except, presumably, Mr. Vladek.
8
"The president's designation of an acting attorney general is constitutional, so long as it is temporary."
And therein lies the rub: What is constitutionally defined as "temporary"?
Because there's no doubt if Trump can get around it...He will.
Trump must think that all Americans can be hoodwink like the deplorables that support him. We must now do whatever we can to make him a lame duck President. We must rid ourselves of the reactionary Theocratic Republicans. We must reach out to the rural areas of America & let them know we are the party of Social Security , Medicare & Civil Rights, & bring them back to the Democratic Party.
7
@Joe Blow
"Lame" duck? Of course you mean Canard a l'Orange, destined to become a classic American holiday favorite. Timing is everything, and it's past time for Donald to move on...
Interesting conversations and it perhaps hinges on a Clarence Thomas originalist approach to the constitution. If so we will soon know whether Clarence Thomas and the rest of the originalist clan believe in the constitution or are mere mouth pieces for the President.
This fraud of an appointment must go before SCOTUS as quickly as possible. Only then will we know whether justice will be served or a mad president will be left to tyrannize our country.
1
Pathetic that a lawyer should use 210 year old legalese to justify the "temporary" appointment of an unethical, un-elected, politically biased person to the highest Law Enforcement position in the America.
As for the 210 year old law itself, it clearly states and requires "special AND temporary conditions to fill such a position. There are NO SPECIAL CONDITIONS in this matter other than a President trying to stop an investigation.
9
I am a middle aged woman. I have no special information except the news like anyone. Am I supposed to believe that Trump didn't know about the Russians meeting with Don Jr. in Trump tower saying they had dirt on Hillary? Really I am supposed to believe Donald Trump didn't know about the meeting?
I read that a White House staff resigned after he saw Trump dictate the letter to explain the meeting to the public. Falsely claiming both he didn't know about the Russian meeting and that it was about adoption. And now that Manafort is looking at a long prison sentence for lying on bank loans and money laundering he might cooperate to reduce his sentence. I imagine Manafort who was also at this Russian meeting has information also.
And whats worse is that I think Trump will get re-elected in 2020. What I also think that more information will be revealed and he ultimately will be impeached. This is not good for our country, but having an immoral and corrupt president is worse, than suffering the impeachment process.
What annoys me is that Trump tells these bold lies about not knowing about the meeting and expects anyone to believe him. Plus writing that letter on Air Force one no less lying some more. Mueller knows Trump cooperated with the Russians and it helped him win. I don't think Pence should be allowed to take Trumps place as he also won via working with the Russians by proxy. We should appoint someone like we did Gerald Ford after Nixon resigned.
1
@Elise
Gerald Ford was Vice President at the time of Nixon's resignation. He did not need to be appointed; he was in the line of succession.
I along with others suffered through law professors and ultimately came down to they sometimes simply don't get it.
In this case, the norms are not observed by the White House and that poses an existential threat to nation, the world, and to the need for law professors.
The White House just doesn't care for you or what you think.
3
There is no reason for Trump to name Whitaker, an unconfirmed lawyer as temporary ag when he has a confirmed person in Rosenstein to take the position, as would be the “normal” and logical progression of positions to be fulfilled. But as we all know Sessions was told to resign because he recused himself from the Mueller Investigation that Rosenstein oversees so the “normal” progression is not an option for Trump. Does intent have no place in judicial review? When everything is so obvious to all parties interested why do we have to continually nitpick the intentions of existing law. If a case were brought to court is there an honest judge who could decide that the fox can indeed guard the henhouse and the Constitution says so? Absurd.
2
The claimed “resignation” of Sessions was in fact a constructive firing, probably concocted by White House lawyers to, in their strategic thinking, make the 1998 act applicable. Trump has been belittling and embarrassing Sessions for months. One can reasonably assume that when he was asked to “resign”, it was implicit, perhaps explicit, that if he did not do so his tenure as the A.G. would get even more hellish. Compare this situation to a constructive eviction, where to avoid the expenses, time, and other possible countermeasures associated with an eviction, the landlord makes life for a tenant in his premises difficult, if not impossible. The tenant abandons the premises, not voluntarily but under duress. Sessions was forced out from office. Calling a duck a pigeon, does not make it a pigeon!
3
@John Grillo. I forgot to mention that there is in employment law the concept of a constructive dismissal where the employee’s purported “resignation” is found to factually be a firing, not a voluntary and unpressured leavetaking without the presence of duress, intimidation, etc. The author did not discuss this important aspect of the Session’s “resignation”.
I’m persuaded that Whittiker’s “temporary” appointment is illegal. But isn’t the sad reality that Trump can simply submit his choice to his Republican controlled rubber stamp Senate and in short order he will get exactly what he wants?
If Whitaker is al egal choice why is he a bad one? It is by now very clear that Mueller's appointment was political and with the sole purpose of digging evidence that there was a collusion between the Russian government and the Trump campaign so as to diminish, demoralize and destroy the Trump presidency as a pay back for winning the 2016 presidential election fair and square. The scope of the Muller investigation has been broad unfocused and open ended. It is to Trump's credit that he has multi tasked for the benefit of the nation and the forgotten men and women even with the hanging dagger of Mueller looming large over his presidency. Had it not been for the toughness and boldness of our president we would have seen an ineffective wimpy reclusive coward bogged down by the Mueller investigation and dirty politics of the opposition that had lost the white house despite spending twice as much on campaigning.
Acting Attorney General Whittaker should plunge right into the Mueller investigation and terminate it or demand a long over due report concluding one way or the other whether there was a collusion between the Trump campaign and Putin administration during the 2016 presidential campaign and whether a single American voter was influenced to vote for Trump exclusively on the basis of this particular Russian collusion. There is such an enormous waste by previous administrations of President Bush and Obama that piled a 20 trillion dollar debt after useless regime change wars
1
Reading this opinion column, and before it the one co-authored by Conway, I can't help but wonder how they reach such different conclusions when each had based their opinions on what one would think are such clear-cut facts. Do they disagree with each others facts? This does not seem to be a subtle, nuanced issue.
Would be nice to have another scholar discuss why the misunderstanding, and how the Conway column missed the Eaton decision and the clarification/contextualization 100 years later. Or did this author misinterpret it?
1
This writer presents a broad interpretation of U.S. v. Eaton which seems to deal only with the appointment of temporary consuls. It’s quite a step to take this opinion and use it as precedent for a sweeping rationale for allowing temporary appointment of all major “principal officers.” It may be that the current Supreme Court would agree with this analysis, but it’s far from settled law.
1
Nice try, Professor. And you know it.
Like the handful of scientists who say climate change isn't real, you know you are a member of the small cadre who are either sycophants or deluded.
While it matters only by degrees as to which, Whitaker cannot at this point in time succeed to the top post within the DOJ without the advice and consent of the Senate.
Thank you for your Trump Administration interview. We'll be in touch.
5
I heard a legal scholar whose name I cannot recall at the moment say this week that Whitaker would be considered an inferior officer and as such, the Mueller investigation could become imperiled by virtue of the fact Whitaker is not being supervised (since Rosenstein answere to Whitaker, not the other way around. This, setting Mueller's entire body of work on the Russia investigation up for being dismissed as invalid since the person supervising him (Whitaker) was an inferior officer.
I wonder that someone among the president's many new lawyers hired to deal with the Mueller investigation recommended Whitaker for just that reason.
2
Those who were promoted to the federal government by 43 were either not among the best lawyers (particularly among past non-neocon conservatives), have the bigger picture as blind spots, or both. The President might become more frustrated than with Sessions.
Every time the word 'constitutional' comes up in the context of the Trump presidency and its relationship to the Judiciary, the more obvious the need for urgent reform. It can't be, in a system that claims to have separation of powers, that the Judiciary is in charge of investing possible misconduct by the President, but the president is in charge or in control of those investigating him. Trujillo, Mobutu, Marcos, Maduro, the list of admirers of such a system must be very long.
2
Structural reform to the USC began this week and will likely start phase one in 27 months.
Mr. Vladeck's argument seems to assume that the terms of the 1998 law whereby Congress gave up some of its constitutional power to advise & consent are, themselves, constitutional. Has that assumption ever been tested? Is it constitutional?
5
"The acting attorney general, Matthew G. Whitaker, once espoused the view that the courts “are supposed to be the inferior branch." (Noted from link in the article.) Alexander Hamilton (Federalist 78 as explained in Wikipedia) "In Federalist No. 78, Hamilton said that the Judiciary branch of the proposed government would be the weakest of the three branches because it had "no influence over either the sword or the purse, ...It may truly be said to have neither FORCE nor WILL, but merely judgment." Federalist No. 78 quotes Montesquieu: "Of the three powers [...], the judiciary is next to nothing." There was little concern that the judiciary might be able to overpower the political branches; since Congress controlled the flow of money and the President the military, courts did not have nearly the same clout from a constitutional design standpoint. The Judiciary would depend on the political branches to uphold its judgments. Legal academics often argue over Hamilton's description of the judiciary as the "least dangerous" branch. Hamilton also explains how federal judges should retain life terms as long as those judges exhibit good behavior." Just saying.......
2
@Sailboat Captain - weakest because it depends on the other two and the concept of the rule of law does not equate to inferior - an unjustified leap of flawed logic.
2
I hope Prof V teaches his students to read statutes in their entirety, rather than picking and choosing what elements of statute may support his erroneous position. He entirely neglects to consider 5 USC 3345 (b) (1) (A), which states that a person may not serve as an acting officer if he did not serve in the position of first assistant to the office within the previous 365 days or if he was in the first assistant position for less than 90 days. Clearly, Whitaker does not meet that criteria and cannot be appointed acting AG as a matter of statutory law.
12
It read though Prof. Vladeck had channeled Kavanaugh or had taken his dictation. As to the persuasive merits of each position (Katyal/Conway & Vladeck's) it remains to be seen. But one thing is certain, Trump is largely indifferent to the appearance of things and the effect of public opinion. This is especially true of his or his administration's credibility. For it is here, in just this respect that Don Trump is most Putin: all that matters is whether he is in a position to act or decide, irrespective of whether his authorization to do so is ultimately confirmed. In the meantime, the damage will have been done.
4
Professor Vladeck (Prof V) is much more definitive than justified. He relies on a 120 year old precedent to decide that the Constitution does not require only a an officer confirmed by the Senate can temporarily fill the shoes of another principal officer.The Constitution is silent on a temporary appointment.
It is hardly assured that his view will be controlling in contrast to the “array of commentators, lawyers and scholars [who] have argued Mr. Whitaker’s appointment is unconstitutional.” (Prof V)
Prof V then makes reference to the Federal Vacancies Reform Act of 1998 applicable across the many Federal offices and agencies. But he omits the specific act governing the Justice Department in the absence of the Attorney General, (AG). The AG Succession statute, 28 USC Code Sec 508, an older act, provides that an AG vacancy places the power to exercise the AG duties in the Deputy AG, now Rosenstein.
Prof V writes with a definiteness not justified by the full panoply of laws that are or may be applicable. The Whitaker appointment very well might be unconstitutional; it may violate the Attorney General Succession act, omitted by Prof V. It is hardly clear as a bell, as argued by Prof Vl that the Whitaker appointment “was legal, so long as it is temporary
. . . . “
As a law professor specializing in ethics for twenty years, I wish such writing would be more fully forthcoming and less definitive.
16
@Donald K. Joseph -If I were Prof. V's department chair, I would worry about his grasp of the law and if he should be teaching. Sigh.
4
I believe the appointment of the acting attorney general here does not involve the "special" conditions of Eaton which create an exception to the the letter of the Appointments Clause. In Eaton the U.S. Consul to Siam took a leave of absence because of illness that ultimately proved fatal and the Vice Cosnul was not present in Siam at the time. The President appointed an official not approved by the Senate to act temporarily as Consul. The special conditions would appear to be the disabling illness and the lack of another duly confirmed officer in remote Siam. In present circumstances the Attorney General was directed to resign, by all accounts for properly recusing himself from the Mueller investigation. Duly confirmed officials in DoJ were available to immediately replace him in an acting capacity. Where are the special circumstances? The appointments clause was established to temper the raw power of the president. It appears likely that the President made this 210 day temporary AG appointment to gain influence over the independent investigation of his administration by the special counsel at a crucial time. Can there be a better case for subjecting a presidential appointment to public hearings before the Senate?
13
While not a constitutional argument, I wonder why Mr. Whitaker's appointment would be permissible under 28 USC sec. 508. This section specifically addresses temporary replacement of an Attorney General, and states that in case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may
exercise all the duties of that office. It provides additional options in the event of the AG's and DAG's
absence, disability, or vacancy in office. Since the DAG is available, it would seem that, regardless of the Vacancies Reform Act's more general language, Rosenstein is the man for the job.
12
First, have you never heard of "constructive discharge"? Second, the Eaton Court did in fact give us clues as to what constitutes what constitutes an "emergency." Spoiler alert: t's not when the President himself creates the "emergency." In Eaton, the consul was literally dying and had to leave the country, and the next in line was not in the country either. This is completely inapposite here, as there were plenty of other options available to the President who had met Article II's requirement that they be confirmed by the Senate.
8
Very incisive and thought provoking analysis. Thanks to Professor Vladeck for writing this, and to the New York Times for publishing it.
3
@Blue Ridge Fair and Balanced.
Vladek writes: "But as troubling as Mr. Whitaker may turn out to be for the rule of law, Mr. Trump was acting within the scope of his constitutional authority. " I think this is the most maddening aspect of the Trump presidency: the scope of constitutional authority. As President he has power to appoint and dismiss, he has power to declare tariffs as a matter of national security, he has power to order military movements etc. etc. But just as Whitaker is eminently unqualified to serve as an interim Attorney General, Trump has demonstrated over and over again that he is unqualified in terms of temperament, intellect and wisdom to exercise any of these powers. We--including some who thought they were throwing away their votes for Trump as a protest--knew this before he won the election. How could it be any clearer now?
7
"The move was legal, so long as it is temporary, which the law defines as up to 210 days."
That takes events safely within the next Senate session, in which Trump's supporters will have a much larger margin of extra votes to confirm whoever they want to do whatever they want done.
As we saw with Kavanaugh, when they are a bare 51 votes, they can be held up by any one of 51 people with problems or concerns. They were. Now they won't be.
1
This anlysis ignores Congressional Research Service Report 44997, The Vacancies Act, A Legal Overview, first published in October 2017 and updated in July 2018. A "senior official" can be temporarily appointed but only for actions that are "non-delegable". Supervising Mueller has already been delegted to Rosenstein. Other federal statutes and regulations may apply. One of the authors of yesterday's NYT Op-Ed on the unconstitutional of Whittaker's appointment wrote some of those regulations which likely render any act by Whittaker void. Regardless, Mr. Whittaker is not qualified and should withdraw immediately.
31
@Bryan
There has been opinions in the last 24 hours by past persons working in the Justice Dept. that Rosenstein is no longer in charge of supervising Mueller; rather that power is now Whitakers.
Which makes sense, given this was done to give the President control of Mueller and whatever he produces.
By the author's submission, it seems anyone can now become a 'senior' official for a mere 90 days and ascend to being the Acting AG, without a whiff of vetting, much less Senate Confirmation. What an absurd Constitutional oversight, and exceedingly low standard, which seems to describe Mr. Whitaker's career to a T. Given he was the sole employee for the arch conservative, and anonymously funded group FACT alone should disqualify him. His editorials show he is clearly not impartial. Justice maybe blind, but should not be for sale. Shouldn't the order of succession automatically flow to the second in command, ie Rod Rosenstein, as it does in the Executive Branch? At a minimum he was at least confirmed. We all know Democracy is a work in progress, but in this case it appears, in now several instances, that even at the highest levels lawyers are no better at honest self governance than fraudulent real estate developers.
12
There is a legitimate legal question about whether section 3 of the Vacancies Reform Act would, if taken alone, allow Trump to nominate Whitaker to temporarily serve as Attorney General. But any debate on that matter is moot.
The plain simple language of the US Constitution forbids the interpretation Vladeck argues for. If Mr. Vladeck is a Constitutional Law professor out in Texas, he should learn that laws passed by Congress do not in cases such as this overrule the US Constitution. "Stable Genius", recently speaking about Constitutional provisions for citizenship, did say that such a law could abolish provisions of the US Constitution permanently, and that he himself by executive order could also abolish parts of the US Constitution. Please ignore the Constitutional opinions of "Stable Genius".
16
I respectfully disagree. The Deputy is legal choice in this case.
Just to show how we need courts sometimes even if it means things quite clear need defense from those who simply "want to see things in their favor"
I have a PhD in Constitutional Law with over fifty years of active practice seldom in academia. Law is too often now a game of time delay whereas the world is run on money from business based on technology which needs no time to change what they want. We the people most often are bystanders hoping our elected officials do as soon as possible (!) what is best for the majority including all minorities. However, politicians always need us helping especially pushing the political will through active support from door to door and on the streets in peaceful demonstrations.
11
@Stanley
With all due respect. You are in CANADA, and doubtless your parliamentary procedures differ a bit from our country's.
And while there's no doubt that politicians will prevail upon the law to justify their own agenda -- we now have a president who's exercising that right to the extreme, while completely overlooking the U.S. Constitution.
That's why in this case, "temporary" can't be temporary enough.
4
Using the term “temporary” without definition seems to make the appointment open-ended. This would be contrary to the case cited. Also, the Constitution requires senate approval of the AG. The originalists must know what those men were thinking about this 225 years ago.
2
@ N Smith
With all due respect, American citizens do live in Canada. And just as there are American scholars of British jurisprudence, so there may be Canadian scholars of the American Constitution and jurisprudence. And there are attorneys who may be admitted to the Bar (qualifies to practice in) of numerous stars and of numerous countries. Being in Canada does not prevent someone from having expertise on topics Americana.
15
I do not think this issue can be settled on partisan discussion boards, and your argument is perhaps predictable as a counterpoint to others we've seen in the NYTs and elsewhere questioning the legality of Whitaker's appointment.
If there were to a be a fight and is destined to go to court, so be it. There have been plenty of fights already and a few more would be no surprise. I doubt it causes any more chaos than we've already seen.
6
It seems to me that the section of FVRA that apparently gives Trump the right to make this appointment is in conflict with the Constitution. This has happened before where laws passed by Congress aren't consistent with the Constitution, but I believe that issue can only be decided by the courts.
5
As a lawyer myself, this matter is far from clear, with all due respect to the author. Without having any particular bias when it comes to matters of the law, I prefer the argument finding this action unconstitutional. The founders were not wild about uncontrolled, executive power. Too much damage can be done in a short period of time. I do not think this action passes constitutional muster.
31
I'm thinking Mueller himself, when asked to hand over documents and share info, has the ability (and duty) to refuse to comply, thus creating the necessary case and giving him the standing needed to challenge the validity of this appointment directly with the Supreme Court.
And if that were to happen, what a fascinating first case for Kavanaugh that would be.
8
@Gregory Boyoboyoboyoboy!
Once again Trump flaunts the law as he did as a businessman with the attitude that if you do not like his action, then you can sue him. So maybe someone will sue him to test the competing opinions regarding the legality of this appointment and then there would be an impartial judicial decision - oops, I mean a decision from the court that Trump has packed. So much for justice.
10
@Gadfly, I think you mean "flouts" the law.
13
As with so many other instances this administration fails to follow normal procedure and consequently its actions come under judicial review. This is not done out of a radical or unorthodox political spectrum but because the President is trying to avoid the inescapable conclusion of his criminality.
14
While this and the previous piece by Messrs. Conway and Katyal have been most interesting tours through the legal fine points on this matter, I am glad that Mr. Vladeck also readily acknowledges how "stunningly unqualified" Mr. Whitaker is, with "radical" views and deep conflicts of interest that should disqualify him ipso facto from getting within a country mile of the AG's post.
And even assuming Mr. Vladeck's legal interpretation is correct, it merely exemplifies the far more important point that just because something's legal doesn't mean it's not wrong.
In this case, stunningly, radically so.
45
As in many other instances, the law requires us to ignore what anyone knows about what is going on, except of course those who have an interest in not knowing what is going on. What Trump is up to is obvious from known facts, but the law requires us to ignore this in the guise of preserving objectivity.
So the law requires us to allow reality to be bracketed out by legal nitpicking; we saw this happen for generations, for example, in the legal defense of the Southern Way of Life. This problem with the law is, of course, itself bracketed out so that it will not appear to those trained in legal thinking. For those so trained, considerations of reality and morality appear as a collapse of law, and that is a major purpose of this training.
6
I'm curious if Prof. Vladeck could elaborate on what commentators believe is meant by "special...conditions" in Eaton, as the meaning of that term seems critical to understanding the scope of the exception created by Eaton. Additionally, has the constitutionality of the Vacancies Reform Act ever been litigated?
4
Big point here is the time. What is an appropriate time to make a nomination? It seems that this president likes to fire and then hire on his own with the idea of keeping this power only for himself. Keeping a temporary appointment for over a year or more is obvious trying to avoid the normal process. Maybe a time limit. like 4 weeks until a nominee is given?
2
@RichardHead
What if Trump keeps Matthew "Chrome Dome" Whitaker for 200 days ,during which time he gets Rudy "The Gargoyle" Giuliani hired by the Chrome Dome for 100 days. Trump then fires "The Dome" and appoints "The Gargoyle" "temporarily". Gets him to hire "Lizard Lewendowski" for 100 days and...well you get the idea. He could go from "temporary" sleazeball to "temporary" sleazeball for...ever?
The sentences/clauses in question: "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." vs. "...and he shall nominate, and by and with the Advice and Consent of the Senate...shall appoint...other public Ministers and Consuls...and all other Officers of the United States...." The President replacing a Senate confirmed high official with an unconfirmed one, citing extraordinary circumstances he, and not uncontrolled events created during a Senate recess is an obvious end-run-ploy around The Senate's confirmation role. It's illegal.
14
@Zipora "For better or worse, Congress in 1998 authorized the president to name agency officials not confirmed by the Senate, like Mr. Whitaker, to exercise the functions even of cabinet officials on an acting, time-limited basis, whether or not Senate-confirmed officials were available. The objections to Mr. Whitaker’s appointment highlight why it may be bad policy to permit such an appointment — and why Congress may be well advised to so modify the law." It is obvious that the author disagrees with your take on this subject.
@TT TWISTER
With all due respect, I find it less than believable that Congress would sanction an evasion of The Senate's Advise and Consent role, unless there are circumstances beyond The President's control, which were not present two days ago. That's why scholars of all leanings see through this decision.
5
The President’s designation of the acting attorney general is in compliance with the Federal Vacancies Reform Act of 1998 (FVRA). In contrast the Nov. 8th Op-Ed By Neal K. Katyal and George T. Conway III was mainly one sided with a primary focus on the Constitution and omission of objective discussion regarding technical compliance with the (FVRA). The FVRA is not in conflict with the Constitution. The FVRA is complimentary to the Constitution. The FVRA addresses a temporary appointment of an individual in an acting capacity - today. The Constitution addresses the nomination by the President, pending Senate confirmation, of a candidate in a permanent capacity - tomorrow.
@Roane Thorpe, I think you mean the FVRA is "complementary". I do not see a compliment in it.
3
@Roane Thorpe
Of course you mean "complementary."
1
Let's go back a step and determine if Sessions quit or did Trump fire him?
Constructive discharge is termination. And someone who legitimately quits doesn't say: At your request, I am submitting my resignation.
21
@Tedj If a court were to set a precedent that using those words "at your request" makes an official resignation null and void, then officials would simply stop using those words.
Mr. Sessions made a choice to resign. He might not have been perfectly happy about it, but at the end of the day, there is no question that it was his choice.
He was not blackmailed. His arm was not physically forced into position to put his signature on the paper.
Yes, it is certain that he felt pressure from the President and his party to resign. But the decision was his. If Mr. Sessions had felt it necessarily or worthwhile to refuse to resign, and to thereby force the President to fire him, he would have done it.
He *could* have done it.
And that would have made this temporary appointment impossible.
But Mr. Sessions chose to resign. Judge him as you will, but it was his choice. Some Democrats might hate him for it, some Republicans might love him for it, but it is what it is. Mr. Sessions willfully chose to resign.
4
@Tedj
Excellent point. See my argument in Comment number 2 of this set of responses to the article. The evidence is clear that this was a planned firing noting the President's many public comments over time about Mr. Sessions, the undated letter of resignation as well as the wording of the letter headed by "at your request" as conditional.
As I previously stated, the resignation was nothing less than a creation of a legal fiction assuming as true something that is clearly false. A fiction is often used to get around the provisions of constitutions and legal codes.
@Laxnik
You baked in a whole lot of asumptions there.
1
If this is legal, every president could appoint a new Acting Attorney General every 210 days without any of them needing Senate confirmation.
Which is absurd.
56
@Eric The outcry from the media, the public, and other government officials would most likely be huge in that case.
Or maybe it wouldn't be. Which could lead some to believe that this "absurd" behavior maybe wasn't so extreme after all.
Only time will tell.
3
@Laxnik, it could lead some to believe that President was preparing for dictatorship.
7
@Eric Thank you Eric. This is a similar point why the failure of the senate to act on the Garland nomination was unconstitutional. President Obama did a terrible disservice by refusing to challenge McConnell on that. McConnell’s position would ultimately leave the senate in the position of deciding whether there even is a Supreme Court just as the President’s action here eviscerates advice and consent. As you state, both results are absurd, and thus, cannot be the state of the law.
6
I gather this misses the law that applies to the Dept of Justice.
Let me make sure I understand your argument: A statute was used to amend the Constitition ? Really ?
10
@Rob
Well, if he can't do it by executive order or tweet....
Mmh. Right. Temporary as in Trump is presently interviewing and will name a new AG to confirm within one week or “temporary” as the Muslim Ban was just going to be for a couple months until they figure out what was going on and now it’s been nearly two years that the administration is trying to prevent Muslims from entering?
Sources say Trump planned to fire Sessions months before it happened. If so, he should have had a replacement ready to name the day Sessions was fired. And Rosenstein is the logical man to fill the role until the successor is confirmed.
Instead, he appoints an unqualified Yes Man who has openly opposed the investigation. Smells real funny to me. I hope Mueller has a backup plan and slaps anyone doing funny business with obstruction charges. Wouldn’t it be nice to know what the investigation has against you and if you could pull the plug on it?
Echoes of Nixon
11
Mr. Vladeck is a frequent contributor to The Federalist Society. I rest my case.
70
@JS Great point.
Didn't know that a law professor will tilt towards authoritarianism and wants Trump to create a pool of Federalists in the US judiciary - the 2 recent supreme court justices and now the Acting Attorney General.
14
@Jyoti
You must have failed to read this article. Vladeck despises trump, opposed Gorsuch and Kavanaugh, and thinks Whitaker is a menace. He's hardly an authoritarian!
Whitaker "...appears not only to be stunningly unqualified to serve as the nation’s chief law enforcement officer but also to have radical — and deeply troubling — views about the role of the federal courts in our constitutional system."
I actually like your analysis, Dr., but if I were a federal judge, my focus would be on the words “...special AND temporary.....”
I see nothing in this instance of an exigent nature, so I would have a hard time letting the president circumvent the Vacancies Act requirement that someone must have previously been confirmed for his current in-agency job, since it’s not a recess appointment, in which case a president could appoint just about anyone legally, including Mr. Whittaker.
7
Well Stephen, the argument has already been made that the appointment of sleazy individuals into government positions is not illegal. Whitaker is there to do trump's bidding.
Our government is based on having rational leadership, not having a lying, traitorous, egomaniacal, fascist lunatic as president. Trump, and his trumpkins, along with Fox Noise (we can't ignore *them*) have broken our government.
Thus we expend time rationalizing Whitaker's appointment. The question, that is above your pay grade, is, how much more fascistic will the trump government become? The Whitaker appointment is one giant step along the way. And yes, it's legal.
7
@Charles
Whitaker’s views on the constitutional limitations of federal power are definitively anti fascist.
Of course it is legal, the president has lawyers to assure that it is. Now I think he might appoint say me, that would be great for me but perhaps not legal.
1
@vulcanalex, if the President's lawyers say it's legal, then it's legal. (extrapolated from R. Nixon)
2
The rules of statutory construction require that the more specific term is followed over the general term. If this comes down to following either the 1998 Vacancy Act or the Constitution, the Constitution takes precedence. The Constitution arguably speaks to a more specific class of officers - principal officers, as opposed to the Vacancy Act which addresses more generally, "an officer of an executive agency". I guess I'm agreeing with Kellyanne Conway's husband. Oh to be a fly on the wall during their dinner time conversations!
7
The argument in this article simply does not hold water.
Query whether Sessions' "resignation" qualifies as resigning under the statutory resignation requirement “dies, resigns, or is otherwise unable to perform the functions and duties of the office." I argue it does not. (the other circumstances clearly are absent) Trump TOLD Sessions to resign. That is evident at least in the timing of the resignation-the day after the midterm elections. Obviously that timing is not a coincidence: Trump didn't want this AG controversy to hurt him in the election. The legislators who drafted the law at issue obviously intended for a temporary vacancy that occurred NOT at the President's direction to be fillable as provided so that the President could act freely in a pinch. The rationale is clear. Here, the President created the vacancy. He should not gain the benefit of the law that was not intended to cover this situation. As usual, the President is incompetent at best on the merits, so he games the system to get around legitimate and necessary obstacles.
Recall how he tried to bail out his bankrupt casino by sending his agent to buy $2 million in chips and then not cash in the chips (so the casino keeps the $2 million cash). Same pattern here.
Trump's M.O. is always to game the system for illegitimate gain. It's one thing when you are merely ripping off investors, which is bad enough. When you put the country in jeopardy by these ruses, you must be held to account.
41
@James
I am a philosopher and logician, not a lawyer, and while I appreciate that the law is not always "logical," this post is impeccably argued.
6
@James, it was his dad did it. Dad helps son cheat the law; son learns young. Also, I think it was around $3 milliion.
1
It was 3.5 million actually, I believe.
1
This is informative but unpersuasive, primarily because it is incomplete. It was just last year that Justice Clarence Thomas addressed this point, in NLRB v SW General, stating in his concurring opinion - in the specific context of the FVRA! - that "Appointments Clause forbids the President to appoint principal officers without the advice and consent of the Senate." In other words, more recent caselaw renders the author's argument moot. The author also ignores 5 US Code 3445, which sets forth the specific rules for succession in executive agencies (and which is specifically referenced by 28 US Code 508, regarding succession in the Justice Department itself). In short, especially considering that it was written by a law professor, this is a surprisingly thin argument.
55
@Kathleen Hunt Isn't it also.......plus the Constitution and Marbury v Madison??
OK. We have conflicting legal opinions on the legality of Trump's appointment of Matthew Whitaker as Acting Attorney General . That would seem to indicate that the final verdict on it should be decided in a court of law. Given the immense implications of this appointment for the ongoing Special Counsel investigation, it would seem to be a matter of some urgency that should be challenged in the court and expedited to the Supreme Court. This is by many accounts a Constitutional crisis and that's how they're supposed to be resolved. We don't need anymore competing Op-Eds, we need someone to file a case against the appointment of Mr. Whitaker--Now.
33
@Paul Wortman Go for it, it is not a crisis unless the country will be destroyed by it. Who might you suggest who has standing?
2
@Paul Wortman I'm guessing there isn't a strong case to file until someone has legal standing to contest his appointment-- ie. someone affected by something he did or is trying to do in the role. Wouldn't Whitaker need to do something for that to be the case?
3
@Paul Wortman I wouldn't be too fast here. This is a repulsive choice that will rightly rouse public opinion and create a situation in which Mr. Whitaker, by every decision, complicates this constitutional crisis.
We could send this to Trump's pack and widely regarded as illegitimate Supreme Court, where the appointment will be upheld by twisted logic of the court toadies. This will only deepen the crisis, as only those already drunk on koolaid will accept the decision.
Far better to let this stew in the court of public opinion as the Dems prepare to take power in the house.
They can call Whitaker and expose him as a let this traitor. They can call Mueller. Then, when the public and the Supremes grasp what is at stake, there will be plenty of time to sue.
Maybe I am missing something, but the author does not seem to answer the key question of whether the 1998 statute is itself constitutional. He talks about the Eaton case, which deals with the constitutional issue, but then says that Congress filled in the questions left by Eaton. But those questions were of a constitutional nature, Congress can't just fill those in. Has any court ever assessed the constitutionality of the Federal Vacancies Reform Act of 1998?
14
@matt - You did not miss anything. The author offered no constitutional argument that the constitution grants the president the authority to appoint someone who has not been confirmed by the Senate as an officer on a temporary basis. Yes, the statute says that, but, as we all know, the constitution is supreme to statute.
7
Granted that the 1998 Vacancy Act allows the nomination of any senior official who served in the same department as the vacant office. but does this presume that that officer has dealt with the legal operations of that department. If so, my question is, has a Chief of Staff actually done legal work or is he simply a super administrative secretary to the AG, .
6
@Barooby Surely we all realize that keeping the administration functioning is not as pertinent, in any scenario, as keeping the government functioning. His administration is "trumping" our government in this case, is it not?
3
If he's legal because he's" temporary" -- Does that mean that Trump can appoint another "temporary" choice after Whitaker ad infinitum? I guess Trump could use that rationale to keep replacing cabinet members.
I was born at night but not last night.
70
Unpersuasive. In U.S. v Eaton (cited by the author) the facts involved officials who were unable to perform their duties because of illness, absences, and lack of qualification. From the syllabus:
"The facts that the minister resident and consul-general at Siam had obtained a leave of absence from the President, and was ill and unable to discharge his duties, and that the vice-consul previously appointed had not qualified, and was absent from Siam, created a temporary vacancy and justified an emergency appointment to fill it."
That situation "justified an emergency appointment. But in the instant case, the problem has been entirely created by the president himself by asking Sessions to resign. If the president can then appoint without confirmation, then the principle of checks and balances is violated and a grave injury to the constitutional design results. "No man shall judge his own cause" is a basic principle. A manufactured crisis doesn't supersede this principle, especially the the beneficiary is the person who manufactured the crisis.
Imagine if the president fired the whole cabinet and then appointed temporary officers because of the emergency. We would then have an entire executive branch under the direction of unconfirmed officers.
Emergency temporary appointment--fine, unless the emergency is created by the president himself.
205
@batavicus P.S. Moreover, there are two Senate-confirmed underlings at the Dept of Justice, the Deputy A-G (Rosenstein) and the Solicitor General (Noel Francisco). Both are capable of being appointed acting A-G, unlike the situation in U.S. v Eaton.
58
@batavicus The inconceivable situation we find ourselves in now makes the ghastly situation you describe entirely conceivable if a totally corrupt president is left unchecked by totally corrupt legislators who are completely willing to betray their oath of office to "protect and defend" the United States of America.
6
@batavicus rosenstein yes, francisco is employed by the law firm representing Trump in one of his many lawsuits, he would need to recuse.
2
Given that all this President's appointments have turned out to be temporary, it seems unwise to simply wave-through this device for appointing principal officers without Senate scrutiny.
27
If a President can legally replace a cabinet official with another senior official of his choosing after the President causes the vacancy, it makes a mockery of the confirmation process. What's to keep him/her from just doing the same thing after the "temporary" period?
The case of United States v. Eaton involved an official unable to discharge his duties due to illness. Applying it to a fired* Attorney General stretches the precedent beyond any reasonable interpretation and is clearly at odds with the framers' intentions.
* Yes, he was fired. The phrasing of the resignation letter is a legal fiction and immaterial.
104
@Steven Mocking The thing (in theory) keeping him from doing the same thing after the "temporary" period is public uproar and a subsequent modification of the laws (by Congress) to prevent such a thing. That is the main point of Mr. Vladeck's article.
While we might think that the whole thing stinks, it is not technically illegal or unconstitutional. Those who believe it is wrong should press Congress to close this loophole, although I think Mr. Vladeck presents good reasons for why this tool could sometimes be necessary for the smooth functioning of government in times when the president is facing a non-friendly Congress.
It's a trade-off, and generally it seems that the assumption is that the President would not abuse this power too much, or else he would face public (and Congressional) backlash. Obviously we will have to judge for ourselves going forward based on what happens, and the amount of public pushback will determine how Congress decides to respond.
1
Also, it is definitely not immaterial that Mr. Sessions formally resigned. Quite the opposite. As Mr. Vladeck clearly states, legally there is a big distinction between his formal resignation and the official firing of Preet Bharara. The only way it would be immaterial would be through some type of lawsuit that challenged the resignation, with a court ultimately deciding that Mr. Sessions was indeed fired. For a number of reasons, this seems very unlikely. One is that it would bring into question many other official resignations, past and future, because any cabinet member who receives pushback from the President about any issue, in public or private, could then be seen as having been "forced out" if they resign.
2
However, in this particular instance Sessions did not resign due to pressure or pushback from the President. He submitted his resignation at the express request of the President.
11
In the United States, questions of legality and justice are determined adversarially. Professor Vladeck and his antagonists have unsurprisingly done little more than eloquently personify this elemental attribute of the administration of American justice. At this point, the nation would benefit from a pragmatic, supplemental essay on the central, procedural questions. First, who has standing to petition a federal court for a decision on the squarely presented question of the legality of Mr. Whittaker's appointment, a nettlesome question, to say the least? Second, how rapidly could one reasonably expect a District Judge to render a final judgment on the question presented? Third, what will the federal courts likely do, relative to Mr. Whittaker, with the issue of justiciability, which constrains federal courts, in general terms, from deciding delicate, controversial political questions, best avoided, as a matter of discretion, by the judicial branch? Lastly, even if the lower federal courts expedite everything at the request of the parties, or some of them, when can the citizens of this nation reasonably expect someone to have an opinion on which to base a petition to the Supreme Court? Is 90 days feasible?
7
"He appears not only to be stunningly unqualified to serve as the nation’s chief law enforcement officer but also to have radical — and deeply troubling — views about the role of the federal courts in our constitutional system. " Stay in your lane and deal with the law. If the appointment is legal and constitutional - the exact opposite of yesterday's op-ed - say so. But when you stray into vigorous partisan hackery, regardless of whether I agree with you or not, you lose all professional standing to opine on the law.
2
@Lucy T. But he didn't use his personal disapproval of Whitaker in making his legal case for his appointment being constitutional. He only said what he thought of the appointment personally to substantiate his impartiality in arguing that this (to him) distateful appointment was legal.
4
@Lucy T.
"But when you stray into vigorous partisan hackery, regardless of whether I agree with you or not, you lose all professional standing to opine on the law."
So you are saying that Mr. Whitaker has lost all professional standing to opine on the law? That doesn't sound like a good appointment.
2
@Lucy T. I completely disagree with you. I found it very admirable how Mr. Vladeck was able to separate his personal feelings from the actual legal issue. He certainly does not "lose all professional standing." I think his article actually confirms how impartial he is when interpreting the law. He is saying that the President is technically, legally, within the bounds of the law -- even though Mr. Vladeck personally does not seem to like the whole situation. That, my friend, is a true attorney. And his article stands in contrast to almost every other piece of embarrassingly biased writing that we see in the news today.
5
Sorry I went to Yale Law 50 years ago. Not quite sure how they rationalize things in Texas. You give me your law, Stephen. I'll give you my law, which is the opposite of yours.
24
@george eliot I'd recommend a comma after that "Sorry".
1
No, he’s not.
5
A wonderful "how to use weasel-words to lie" article.
So, Trump can appoint absolutely anyone, and nobody can say "boo". He can demand that the person he appoints offer an undated resignation letter as a condition of hiring.
He can "accept the resignation" after 200 days or so, and appoint absolutely anyone else to the position.
"Advise and consent" goes completely away.
There is also no reason, given a compliant Senate, why the same people can't just move from one position to another every 200 days, removing all need for anyone facing Senate confirmation.
This opinion, if valid, suggests that a Constitutionally granted power can be avoided by lying--without any legal recourse.
Nonsense.
85
Amen!
@Mark Johnson
1
Good news alt A G Whittaker may not qualify to be in the line of succession, but in the meantime, if Mr Vladeck's analysis is correct, the criminal justice system will be under the control of a Trump flunky even as a fraudster for two hundred something days, if the criminal justice system can even survive that long under direct concerted attack from from the highest levels within.
Oh come on, this is such a fusty do about clear corruption in the White House. "As long as it is temporary" What you mean is till Whitaker can ban Mueller's report and keep Trump clear of any charges.
Of course we all know Trump's base will not care if Trump is being told what to do by Putin or any other traitorous acts. But I suspect even the corporate Democrats might protest and try to stand up for America, if only to keep their donner bribes coming in. They do not seem to trust the Russians, with good reason.
I think the rest of us will definitely find a way to stop Trump's crimes.
I think it is great Trump is denying knowing Whitaker. Next. Good old Chris Christie? Oh not hissy fit, low life Lindsey, please.
What about shouting Jeanne Piro or what ever her name is from Fox? Sean Hannity is salivating for something before all hits the fan. What will Fox do with out Trump. How will they go about distancing themselves? There are tapes to prove their new lies. ha ha ha!
2
@cheerful dramatist I think Hannity is a high school drop out. Don't you need a law degree to head the Justice Department? (Of course I assued a President would be literate)
I respectfully disagree with Professor Vladeck. Matthew Whitaker disagrees with the foundational Constitutional principles as outlined by President James Madison.
The new AG has less of an understanding of the Constitution than the president who elevated him (“I don’t know Matt Whitaker”), but I digress. Mr. Whitaker was hired because of his (ample and prior) public statements about the Robert Mueller appointment. That’s square one, and that’s all we have to know.
23
@Red Sox, '04, '07, '13, ‘18 If Whitaker acts in the manner for which he was appointed the acts will just be another layer of Trump's obstruction of justice.
2
The article assembles its own counter-argument; and then ignores it.
"That the president can name temporary department heads without Senate confirmation is more than just a legal fine point."
Actually, the point is very specific; only in the case of an emergency can the president appoint without confirmation.
The fact that he hounded his AG throughout his tenure for not protecting him from the Russia investigation, tried to fire him (and was dissuaded), stated openly that that was his main job, and ultimately forced him to hand in his long-prepared "resignation" letter- one day after the Democratic landslide in the midterms determined that Trump would no longer be shielded from the hearings in the House- rather than "fire" him, . . . does not constitute an "emergency."
Coupled with the Mr. Whitaker's many conflicts-of-interest (alluded to in the article), this is so far away from an "emergency" appointment, and so nakedly an attempt at obstruction, Congress is clearly going to have to investigate it.
(And as far as the fig-leaf of a "temporary" appointment goes, who knows what damage Mr. Whitaker has already done to the Russia probe and the Dpt.? "Legal appointment" here is a serious stretch, and one legal scholar's sign-off on it is hardly dispositive. I want another opinion.)
52
@SSS "who knows what damage Mr. Whitaker has already done to the Russia probe"
Indeed. Mr. Whitaker's primary role appears to be as a scout for the Trump crime family, to suss out what Mr. Mueller has on them. The position of an Attorney General is significantly more important (and powerful) than that of a Consul General, especially when there is a criminal inquiry of the President taking place. Law professors who will write or opine on anything are a dime a dozen. Mr. Vladeck's opinion on this subject does not have the weight or gravitas of those from renowned constitutional scholars like Mr. Katyal or Mr. Tribe.
3
Thank you, Mr Vladeck, for using "more important" instead of the annoyingly pervasive affectation "more importantly."
5
Yes, Whitaker may have flaws that cause some to fret over his ascendancy to the AG post, and yes, he is actually a legal choice.
But thank you, Professor Vladek!
Buried under all the anxious hand-wringing, bellowing and screeching across cable and air, Whitaker's as the Satanic projected implementer of President Trump's "plan" for dissolving the inquisition itself, yes, lost in all this angst is the plain fact that Matthew Whitaker is merely the acting AG.
He's just a placeholder until the real Sessions replacement is sent to Congress for hearings and confirmation, and hopefully before the great blue wave takes over January 3.
2
@JBC
"He's just a placeholder?" We'll see what actually happens.
2
I wonder how Professor Vladeck ignores the following section of the Federal Vacancy Act of 1998:
“(1) Notwithstanding subsection (a)(1), a person may not serve as an acting officer for an office under this section, if—
(A) during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, such person—
(i) did not serve in the position of first assistant to the office of such officer; or
(ii) served in the position of first assistant to the office of such officer for less than 90 days;”
The first assistant to the AG is the deputy AG Rod Rosenstein, not the AG’s chief of staff.
137
It’s more than likely that as the AG’s Chief of Staff, Mr. Whitaker’s main responsibility even if unofficial, was to keep an eye on the AG and submit reports to Trump.
4
@MK-Pssst. Don't tell Sessions?
1
@prj You need to read section (a)(3), which provides that the President can name someone who has served in the Department for at least 90 days over the past 365 days, if that person, like Whitaker, is paid at a GS-15 rate or higher.
RE: "as acting attorney general, Mr. Whitaker also takes over supervision of Robert Mueller,"
Here is a twist that just occured to me. Trump installs a ruthless man lacking any ethics (like Trump himself) to protect him from Mueller. Is there any loyalty is there among thieves?
Is that really where Trump wants any secrets to rest, in the hands of man who as a former federal prosecutor threatened customers who had been scammed? what if Whitaker decides not to take Mueller's findings to Congress - thus appearing to end the problem for Trump. But then, Whitaker then has the goods on Trump. How might he threaten to use this information?
3
The biggest takeaway of this appointment is that Trump and the current crop of republicans like the plain reading of the Constitution when it suits them but ignore the document altogether when it doesn’t. Appointing a former CNN talking head who has ties to a company shutdown for running a consumer scam to be Acting AG is beyond the pale regardless of the constitutional questions as to its propriety.
17
Consumer scam: Trump University. Bill Clinton as provost for the for profit Laureate Universities 16.5 M in pay.
No idea about the law... but the consumer scams seem to be de rigueur!
Can Whittaker be trusted to keep sensitive information from Trump? I’m assuming he now has complete access to Mueller’s findings to date. Does Trump now have access to testimony from every witness Mueller has investigated?
6
I'm not buying this.
If you accept this argument it would allow the president to appoint "temporary" people to any similar position one after another and never have to have the senates approval for any of them.
Most of the government could be run by "temps" without senate approval.
9
@Fred
Maybe that's in the back of Mr. Trump's mind. Sooner or later even his Senate enablers may draw the line somewhere.
Any where between now and whenever he actually leaves (up through 2024) he's likely to start playing out the clock, as they say in sports.
Your post make me visualize an enormous multi-colored chart, like football coaches now hold, with blocks of months to show when the temp appointees had to be shifted.
2
Can Government officials ignore any of Whitaker’s orders,
sighting that Whitaker has no legal right to be the acting Attorney General, thus no legal authority to carry out AG’s duties?
It seems that Mueller will have a route that can bypass Whitaker, via a Grand Jury, based on his investigation that may find evidence that Trump has broken the law.
8
@AdrianB: "citing"?
1
Respectfully, Professor, I believe you miss the point.
US v Eaton, is a case about an inferior officer being appointed temporarily in the absence of Congressional specification as to who should temporarily exercise the powers of the office.
This is addressed by the Constitution Article 2, via "whose Appointments are not herein otherwise provided for, and which shall be established by Law;" But the AG's appointment IS provided for and established by law, not in the Federal Vacancies Reform Act but rather the specific statute that deals with DoJ vacancies.
Yes, if Congress has failed to restrict (that is, vested unfettered power in the President) then what you suggest would be the process. But Congress has restricted the executive in this matter - a restriction that your piece avoids mentioning altogether!
40
Was he a "senior official" or does a senior official in DOJ need senate confirmation? At best he was an administrative aid to the AG himself, like the COS to the president. Now, the pres denies knowing or maybe even meeting him-- what president has appointed an AG without meeting them?
7
@observer
The exact language of the statute is actually "an officer or employee of such Executive agency [whose rate of pay for their position] is equal to or greater than the minimum rate of pay payable for a position at GS–15 of the General Schedule" (roughly $100k). So the subjective importance of his role is less controlling than the amount he was paid.
@observer When he says he does not know him that means something different than he has not met him. He is indicating a lack of extensive knowledge of him.
@vulcanalex, who knows what Trump means? Not even Trump; he changes from day to day.
If Mueller doesn't call Stormy Daniels in as a witness soon and get the event televised, I'm going to be very disappointed in him.
I hope Mr. Vladeck has no objection to that.
3
I hope Mr. Vladeck has no constitutional objections to that.
2
If Mueller doesn't call Stormy Daniels in as a witness soon and get the event televised, I'm going to be very disappointed in him.
I hope Mr. Vladeck has no constitutional objections to that.
2
Wasn't Sessions' resignation really a constructive firing? Lawyers from all sides seem to think it was a resignation but common sense and everyday life clearly show it was a firing: Sessions clearly liked his job and stayed through all manner of humiliations from Trump and Trump clearly wanted Sessions gone since the minute he recused himself. Why does the law demand that we call something the opposite of what it clearly is and then base a decision on this crucial fallacy?
8
@Marc
It was, Sessions was asked for his resignation, a nice way to say, your fired. But the DOJ, is supposed to be a check against the executive branch. The DOJ isn't supposed to shut down an investigation into the POTUS because the POTUS doesn't like it. The Mueller investigation is a duly authorized investigation, about the infiltration of Russia into our elections. Clearly Don Jr, and Manafort and many others knew what they were doing when it came to meeting with a Russian "lawyer" ostensibly to "talk about adoption" Don Jr wouldn't adopt any child unless he was making money from it.
So you don't indict 19 people, get several signed guilty pleas and the cooperation from those people, if nothing was there. Only hard boiled republicans want to believe that lie.
But at what point does Trump cross the line into obstruction of justice using people like Whitaker to do the dirty work, and at what point is he culpable in that obstruction, and could HE be charged with obstruction.
3
@Marc EXACTLY. Like virtually all conservative arguments on a wide range of subjects, this professor is clearly hanging a bunch of sound logic on a premise which defies all common sense. Trump fired sessions, Sessions clearly noted the "as you requested" in his "Resignation" letter to make it clear to all of us he was fired.
4
@James Young Factually incorrect. The DoJ is NOT a check against the executive branch; it is a part of the executive branch.
Once again we are pressing the legal and customary issues...that the GOP had a fit about with Obama. We now know their concerns were all about winning rather than being right because they have dropped this for the worst offender ever! Of course they like to ‘invent’ rules, such as not meeting with a designated nominee. Now we have a clear line of secession through Rosenstein that has been ignored. Surprise! No GOP leaders from the senate are saying much of anything. I think this argument isn’t the issue...what is the issue is that for our Pres. If he doesn’t get caught, it’s legal.
3
@Ryan, "succession". Other than that, of course! They hate deficits, too -- oops, wrong year.
Of course both Trump and Justice Thomas would disagree with the author about the legality of the appointment...
1
We provide authority to our leaders to make morally sound choices, not just legal ones. Its incredible that you have expended all your words on technicalities while completely ignoring the fact that Trump has appointed a man who has openly sided with Trump to oversee an investigation against Trump himself. With due respect, this is not an academic exercise, sir.
48
So we have two articles in the NYT within a day of each other; one says Whitaker's appointment is constitutional and the other says it isn't. How for the layman to choose? George Conway's article, from a domestic relations perspective, is against his interest. I think I'll go with that one.
15
@Rick "How for the layman to choose?" It isn't for the layman to choose; it's for the court to make a determinative ruling.
I'm not an expert, but why write this? And why publish it? We still have gatekeepers, don't we? Mr. Vladeck's opinion should be kept to himself. Reasonable people understand what's going on here. And reasonable people shouldn't be putting up with it. The president has very bad intentions. Everyone knows it. But certain parties pretend it's just an opinion. Like voter suppression. "Voter rights advocates" are against it. Even though it simply runs counter to what this entire enterprise--the United States of America--is about. We should all be voter rights advocates. Just like we should all be outraged that a passive Congress and a cowardly press sit idly by while a corrupt and criminal presidential administration uses every trick in the book to get a stranglehold on power.
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@Stuart
Amen, we should other wise we too are complicit.
2
@Stuart You write and publish it to allow freedom, apparently you only want one point of view.
1
@vulcanalex, your answer might be unfair to Stuart, but your principle is correct.
Talk about grasping at straws. Legality can very quickly turn into criminality when contextual factors are evaluated. Donald Trump’s intent is quite clear, and Whitaker has already announced to the world, repeatedly and enthusiastically, that his own views present a critical conflict of interest.
Everything is temporary. There were no extenuating circumstances which might have otherwise justified appointing some sycophantic stooge. And that’s exactly what this guy is.
21
"Stunningly unqualified" but legal. The Trump administration in a nutshell.
31
@James
Only Mr. Trump could come up with a former federal attorney who truly understands the educational philosophy that Trump U. ...promoted.
1
"The move was legal, so long as it is temporary, which the law defines as up to 210 days."
Yeah, now lets see how much damage is done in those 210 days ... all legal of course.
5
@David
If you read the article, Whitaker may not have the legal authority to be complicit in obstruction of justice. The republicans are going down a very slippery slope. Imagine if Bill Clinton had done this, Newt would have wet his depends.....
5
@David
Given this President's respect for the law, he could just appoint another "temporary" stooge for the next 210 days and so on. Clearly circumventing the advise and consent role of the Senate, and therefore unconstitutional.
4
The presence of ‘loyalists’ in the administration should alert the public about possible cover up activities going on to support ‘shady’ activities of a ‘leader.’ Mr. Whittaker was a loyal board member of the ‘shady’ company ‘World Patent Marketing’ prosecuted for scamming customers and having been fined $26 million.
With that background, how was he approved to be appointed as the chief of staff for Jeff Sessions? How can such a person be suited for the job of the Acting Attorney General?
Mr. Whittaker seems to be a serial loyalist for shady organisations - the latest being Mr. Trump, not known to be the most honest person in the world.
Furthermore, according to Neal K. Katyal and George T. Conway III (NYT Nov 8, 2018), his appointment as Acting Attorney General without the consent of the Senate is illegal.
7
@ALM
Which is exactly why Whitaker doesn't like the courts, he has an ax to grind. It's also the reason he thinks that the "creator" is the only judge....apparently he thinks the creator" will give him a pass for being thief .....which is what a scam is, theft, fraud....
Although I think Whitaker is a sycophantic lackey shill, all of the uproar about the unconstitutionality of this appointment is fruitless. By the time this appointment goes into some form of litigation, up to and including the Supreme Court, Whitaker will have sat Mueller down, asked him for every shred of evidence he has, and reported this back to Trump. He will then fire Mueller and resign so that Trump can either appoint him permanently or send another lackey, Pam Bondi, for AG confirmation.
Mr. Mueller, hurry up and finish.
Trump doesn't care bout the Constitution. Trump cares about Trump.
Impeachment, here we come.
6
@slime2
I think Mueller will have a strategy that will ensure that his investigations will not be buried. He would have foreseen this Trump move. Stay tuned.
5
@AdrianB
He needs to have two complete sets. The one he gives to Whitaker and the one that gets to the new House leaders.
Whitaker is not going to be around long anyway. He will be replaced by a senate confirmed AG. Trump is already looking at successors. If conventional wisdom applies (and it might not given DT), Whitaker won't touch Mueller: if he did, DT is giving the house a legitimate reason to impeach and the senate a legitimate reason to convict. Hopefully, DT does understand this. But, it is troublesome that he appointed Whitaker at all instead of the solicitor general who was the logical choice for the short term. It is just possible that Whitaker was an expedient choice and DT was not thinking I can use him to shut down Mueller. It is just possible I am being too naïve.
2
@Bian do you really believe that enough Republican Senators would vote with all of the Democrats to convict Trump?
He who shall not be named has just elevated a man to the office of US AG who disagrees with Marbury vs Madison-- The SC decision that has guided our country for over 200 yr. This stance could point the way to an imperial presidency.
Tick, tick, tick...
136
@conradtseitz right on! the Marbury case was what determined the role of the Judicial Branch - determining Constitutionality of the Law. thanks, maybe the Texas professor will remember this fact.
20
@conradtseitz
Mr. Trump may vaguely believe that Marbury v Madison was about the former Washington mayor at a hotel.
Let's see if he's at his new job for longer then Anthony Scaramucci was; who knows what else will turn up about Mr. Whittaker, his beliefs and career?
Hey, Mr. Scaramucci went to Harvard law, maybe he could be the next temporary AG.
6
@conradtseitz
The fundamental ethical obligation of the legal profession is to avoid even the appearance of impropriety. This transparent Trump scheme is the essence of impropriety.
" He must have played football too long without a helmet" LBJ on Gerald Ford's limited intellect. This seems apt for Matthew Whitaker.
11
I must respectfully disagree with Mr. Vladeck in his analysis. Mr. Vladeck relies on the case of United States v. Eaton, 169 US 331 (1898), and cites the following language from the opinion, "Because the subordinate officer is charged with the performance of the duty of the superior for a limited time, and under special and temporary conditions, he is not thereby transformed into the superior and permanent official." The Eaton case related to whether an individual appointed as a "vice-consul" when the consul was ill and could not perform his duties, was properly appointed and was entitled to payment for his services. This case is clearly distinguishable from the current "acting Attorney General" issue because a vice-counsel is clearly an inferior officer under the Constitution, whereas the Attorney General is clearly a principle officer. The court in Eaton clearly recognizes this difference when it states, "The manifest purpose of Congress in classifying and defining the grades of consular offices, in the statute to which we have referred, was to so limit the period of duty to be performed by the vice-consuls, and thereby to deprive them of the character of "consuls," in the broader and more permanent sense of that word." I would submit that under the rationale of the Eaton case, the appointment of Mr. Whitaker does not give him the character of Attorney General, a "principal officer" of the United States which requires the consent of the Senate to the appointment.
34
@Jdcolv
And the law states clearly the “successor” line has to be implemented ie: the Deputy AG....Rosenstein,
approved,vetted and totally experienced to take the AG reins.
6
@Jdcolv
I read the same court opinion and agree with you. Since he's not a principal, his powers are very limited, and ending the Mueller investigation would surely ruin the republican party, because if they can't see what Trump is trying to do, which is use one of the three branches of government (essentially a check against the POTUS), to end a duly authorized investigation, just because Trump doesn't like the potential outcome. Trump knows he guilty, if not of being in bed with the Russians, he's guilty of some other form of malfeasance.
9
It is interesting that Professor Vladeck makes no mention of the Department of Justice succession statute (28 U.S.C. § 508). There is a legitimate question as to whether a general statute like the FVRA can supplant a specific statute like section 508. Unfortunately, it has never been addressed, either by the Supreme Court or by DOJ's Office of Legal Counsel. Both statutes use permissive language rather than mandatory language, so there is no clear governing provision.
Of course, all of this is just academic unless you can find someone with sufficient standing to challenge the appointment.
15
"Special conditions" imply that
--the vacancy must be sudden and unexpected (which this one is not: Trump has been saying for months that he'd fire Sessions right after the election, and he did; he has had plenty of time to have the Senate confirm a proper successor, even Whitaker if he wanted)
--a Senate-confirmed inferior officer, such as the departing officer's "first assistant," must not be available (in this case there are two available: the Deputy Atty Gen and the Solicitor Gen)
The intent of the statute, passed by the Senate and House, was certainly not to negate and eliminate the Senate's power to advise and consent, thereby allowing any president to fire and appoint anyone to any office for a 7 month stretch without the new appointee being Senate confirmed. That is the effect of Trump's argument. The Supreme Court (cf. Clarence Thomas' opinion) would never agree this is ok.
Unfortunately, Whitaker will probably smash a lot of china before he is taken out of the shop.
115
@Election Inspector
Great comment! Trump's action shows his contempt for the constitutional role of the Senate in general and his disdain for McConnell's leadership specifically.
As Senate majority leader, McConnell has been reduced to a sycophantic factotum, sort of a Senate toady-in-chief.
17
@Election Inspector-Also how can Whitaker be appointed when the FBI of which he would have oversight is investigating a case that involves him in Miami? "Whitaker served as a paid board member of World Patent Marketing, which was shut down in May by a federal court in Florida and ordered to pay a $25 million settlement following a complaint by the FTC that it was a business scam. Whitaker wrote at least one bullying email to a customer who threatened to complain to the Better Business Bureau about the company’s business practices."
https://www.miaminewtimes.com/news/trumps-acting-attorney-general-matthew-whitaker-was-part-of-world-patent-marketing-a-miami-based-invention-scam-company-10893091
6
Neither Congress nor the president can amend the Constitution. The appointment of Mr. Whitaker is an illegal, unconstitutional delegation of authority. The VCR should not be construed to alter the Constitution. If Mr. Whitaker is not a "principal" appointee of the Senate, he cannot stand in the shoes of one except in a temporary emergency. Such an emergency does not exist. The author has put the cart before the horse.
The Eaton decision is a limited exception having to do with diplomacy and international affairs. It is not a precedent for the instant case. The controlling legal authority remains the Constitution. Accordingly an order given or decision taken by Mr. Whitaker in his acting capacity is void ab initio and ultra vires. It is as if the acting Attorney General does not exist.
By analogy, think of the doctrine of the chain of custody of a piece of evidence. If a critical link in the chain is missing, the evidence cannot be introduced no matter how much the prosecution requires it to win its case, how egregious the crime or how much the dastardly defendant deserve to be punished.
52
A possible negation of the writer's argument might lie in the interpretation of the 1898 Supreme Court judgement that an inferior officer may serve for a limited time (referenced in this article): So long as an inferior officer is exercising the duties of the principal officer “for a limited time, and under special and temporary conditions”. This might be interpreted to mean that the duties are subject to any restrictions placed on the actions of the departed superior officer.
4
@Traveler
In other words, Whitaker has to maintain the stance that Sessions took, Whitaker isn't empowered as a temp to fire anyone, render an opinion, he's not the principal, he would have to defer to Rosenstein.
5
Readers should carefully compare this opinion with the Katyal and Conway opinion published yesterday.
Both agree that the Vacancies Reform Act permits the appointment. But Katyal and Conway further argue Justice Thomas was correct when he wrote a concurring opinion that the portion of the Act relevant to Whitaker's appointment was unconstitutional as drafted. The Thomas opinion does not by itself have the force of precedent, persuasive though it might be, so Vladeck is correct insofar as his reading of statutory law carries the issue.
Whether Justice Thomas's opinion can be reconciled with the Eaton decision Mr. Vladeck cites (a pay-grade dispute), is a worthy question. Eaton did not concern or bless a president's direct appointment of an acting principal officer without Senate confirmation.
19
@R Gifford
You wrote, "Readers should carefully compare this opinion with the Katyal and Conway opinion published yesterday. Both agree that the Vacancies Reform Act permits the appointment." Katyal and Conway did not agree that the VRA permits the appointment.
Instead, Katyal and Conway declared it an unconstitutional and illegal appointment. They wrote, "But Professor Calabresi and Mr. Trump were right about the core principle. A principal officer must be confirmed by the Senate. And that has a very significant consequence today. It means 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." So, maybe you should more carefully read and comprehend before you offer your opinion.
1
The author is unpersuasive.
He says that the appointment is valid if it’s made “for a limited time, and under special and temporary conditions.”
And then he fails to state how present conditions are both special and temporary.
“Temporary conditions” cannot mean the appointment is for a limited time, because that requirement is in ADDITION to an appointment for a limited time.
So it must mean that outside conditions necessitating the appointment are temporary.
Moreover, those outside conditions must be “special.” The author makes no effort to explain how present conditions are special. But clearly they must be something far outside the norm. That’s what special means. The only thing special about present conditions is trumps extraordinary abuse of power and disregard for the law. I don’t think that qualifies...
The fact that the author doesn’t even argue how the present conditions are both special and temporary strongly implies he doesn’t believe they are. If they were special and temporary, he would have simply explained so.
When you don’t have the law on your side, argue something else. Which is what the author does.
253
@mike
I have to amend my post. The author doesn’t have facts in his side. He doesn’t argue those.
And special conditions might mean the appointment of such a person when there is no natural successor who has been properly vetted.
25
@mike Those are all good points. There's also the question of the applicability of a Supreme Court ruling from 1898 that focused on the compensation owed to a vice-consul in Thailand. Does that truly create a precedent for the appointment to a very different office under vastly different circumstances? Without any subsequent cases to reinforce this ruling, the precedent seems extremely weak.
39
@mike
In this case, there is a natural successor who has been properly vetted: Rosenstein.
34
"A contrary rule could cause major headaches for a new president confronted with vacancies across the senior levels of government. Moreover, it could empower a Senate that is hostile to the president or to particular federal agencies to suffocate those entities by refusing to confirm anyone to run them" -- Clearly this is false and would apply to ANY offices that need confirmation by the Senate (second clause of quotation) and alters the letter to ignore that the ONLY excuse for such an appointment is when the holders of the office or its potential successors are unavailable; that is CLEARLY the "spirit" implied by the Law, and hence the appointment is to that extent unconstitutional ...
14
This lawyerly presentation avoids the fundamental issue. It seems to boil down to the notion that a president has near infinite power unless his actions are not specifically prohibited. I'd argue at a more fundamental level, namely that a president, under the Constitution, does not have the power to make appointments for the explicit reason of gaining personal "protection" from the law. Take that to court.
209
@StanC
Unfortunately, he or she does.
More compelling is the argument that if this nomination violates the statute and court precedent, anything he does would be void.
The Senate should take up hearings on the nomination as soon as possible.
9
@StanC, But he is perfectly suited for a position in this corrupt administration. They are blood brothers.
1
I don't care what the legal opinion is, this person is clearly unsuited for this position. The law should be amended.
14
@Jordan Davies
It doesn't work that way.
a) there have been lots of people unsuited to a position to which they have been nominated and confirmed
b) amending the law is very low priority for a divided Congress and would in any case probably not be signed by the President
1
@Jordan Davies, I think we must learn what is legal at this point. Any amendment to an existing law doesn't mean beans until it becomes law.
2
Seems to me this will all come down to what caused the vacancy. Can the president in some way cause a vacancy in a normally senate confirmed position and then fill it with a none confirmed person of his preference? This would seem to negate any need for an emergency or out the ordinary circumstance that would require this action and if that is the case why is there any need to define a special circumstance? This looks simply like the President is once again stretching the rules to accommodate his view that he can do anything he wants.
163
I do not agree with Professor Vladeck's reasoning and conclusion about the validity of such an appointment under the Federal Vacancies Reform Act 1988, as Mr. Sessions did not resign voluntarily as required under the Act. He was clearly fired and there is an ample trail of evidence [despite the phrasing in his resignation letter-undated] to prove that he was in fact fired. The letter merely creates a 'legal fiction' to rationalize and enable the subsequent appointment of Mr. Whitaker to his position as Acting Attorney General.
290
@Stewart Rein
while
while he was clearly fired seems obvious, he technically resigned...and that would be hard to disprove unless there is some law recognizes resigning by a superiors request is considered 'fired"
2
@just sayin
That doesn't seem hard to recognize. I believe law is not required to ignore facts.
12
@Stewart Rein
Legal fictions build mansions for many lawyers. Corporations are the iconic legal fiction.
But your legal analysis is right on target. It does not depend on what the meaning of is is.. regarding a resignation as opposed to a firing aka termination.
4
A temporary new Trump plague
To give our Land a viral ague
A hit man for Mueller
And what would be crueller
The outcome cannot be called vague.
37
@Larry Eisenberg
Larry is a poet and knows it....