Trump’s appointment of Matthew Whitaker as Acting Attorney General violates a DOJ statute and the Constitution

Exactly one day after Democrats won a majority of seats in the U.S. House of Representatives, President Donald Trump forced the resignation of Attorney General Jeff Sessions. Donald Trump had made it quite well known that his displeasure with Jeff Sessions stemmed solely from the fact that Jeff Sessions had recused himself from any himself from any investigations into Russian interference in the 2016 United States elections, presumably because Trump wanted Jeff Sessions to either limit the investigations or shut them down altogether. After Jeff Sessions’ recusal, the Deputy Attorney General Rod Rosenstein, a longtime Republican who was appointed by Trump himself, appointed Robert Mueller, another longtime Republican, to act as special counsel to investigate alleged ties between the Trump campaign and Russia during the 2016 elections and related matters based on the dismissal of FBI Director James Comey by Donald Trump.

When an Attorney General has resigned in the past, the Deputy Attorney General, if there is one, has become the Acting Attorney General. This last occurred on January 20, 2017, when Barack Obama’s Attorney General Loretta Lynch resigned upon the inauguration of Donald Trump as President: Deputy Attorney General Sally Yates was named Acting Attorney General until Donald Trump’s nominee Jeff Sessions could be confirmed by the Senate. This previously happened on January 20, 2009 when George W. Bush’s Attorney General Michael Mukaskey resigned upon the inauguration of Barack Obama as President: Deputy Attorney General Mark Filip was named Acting Attorney General until Barack Obama’s nominee Eric Holder could be confirmed by the Senate. It also happened on January 20, 2001 when Bill Clinton’s Attorney General Janet Reno resigned upon the inauguration of George W. Bush as President: Deputy Attorney General Eric Holder was named Acting Attorney General until George W. Bush’s nominee John Ashcroft could be confirmed by the Senate. The only times this has not happened in the past is when there has not been a Deputy Attorney General in place, such as in 2007 when Alberto Gonzalez resigned.

There are a couple reasons why the Deputy Attorney General has been chosen to become the Acting Attorney General in the past. The first of which is that the Deputy Attorney General is named as first in the Department of Justice’s official line of succession statute:

Legal Information Institute: 28 U.S. Code § 508 – Vacancies


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, and for the purpose of section 3345 of title 5 the Deputy Attorney General is the first assistant to the Attorney General.


When by reason of absence, disability, or vacancy in office, neither the Attorney General nor the Deputy Attorney General is available to exercise the duties of the office of Attorney General, the Associate Attorney General shall act as Attorney General. The Attorney General may designate the Solicitor General and the Assistant Attorneys General, in further order of succession, to act as Attorney General.

The next reason why the Deputy Attorney General has historically been chosen to become the Acting Attorney General is because the Deputy Attorney General is someone who has already been confirmed by the Senate, as Rod Rosenstein was on April 25, 2017, and the Appointments Clause of the United States Constitution requires that a “principal officer”, such as the Attorney General position, must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers. This requirement for Senate confirmation was just recently noted by Supreme Court Justice Clarence Thomas in a separate ruling about the appointment of a general counsel to the National Labor Relations Board:

If you don’t believe us, then take it from Supreme Court Justice Clarence Thomas, whom Mr. Trump once called his “favorite” sitting justice. Last year, the Supreme Court examined the question of whether the general counsel of the National Labor Relations Board had been lawfully appointed to his job without Senate confirmation. The Supreme Court held the appointment invalid on a statutory ground.

Justice Thomas agreed with the judgment, but wrote separately to emphasize that even if the statute had allowed the appointment, the Constitution’s Appointments Clause would not have. The officer in question was a principal officer, he concluded. And the public interest protected by the Appointments Clause was a critical one: The Constitution’s drafters, Justice Thomas argued, “recognized the serious risk for abuse and corruption posed by permitting one person to fill every office in the government.” Which is why, he pointed out, the framers provided for advice and consent of the Senate.

What goes for a mere lawyer at the N.L.R.B. goes in spades for the attorney general of the United States, the head of the Justice Department and one of the most important people in the federal government. It is one thing to appoint an acting underling, like an acting solicitor general, a post one of us held. But those officials are always supervised by higher-ups; in the case of the solicitor general, by the attorney general and deputy attorney general, both confirmed by the Senate.

According to official Department of Justice policy and precedent from three Presidents, the Deputy Attorney General Rod Rosenstein should be named as Acting Attorney General. Donald Trump named Matthew Whitaker instead, who was Jeff Sessions’ Chief of Staff. And, as noted in that article, Matthew Whitaker, unlike Rod Rosenstein, was not confirmed by the Senate to take his job as Chief of Staff to Jeff Sessions, which means that besides violating official Department of Justice policy, this appointment also violates the United States Constitution:

Constitutionally, Matthew Whitaker is a nobody. His job as Mr. Sessions’s chief of staff did not require Senate confirmation. (Yes, he was confirmed as a federal prosecutor in Iowa, in 2004, but Mr. Trump can’t cut and paste that old, lapsed confirmation to today.) For the president to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document.

Just why is Donald Trump choosing to defy the official Department of Justice line of succession and defy the United States Constitution to appoint Matthew Whitaker as Acting Attorney General? Because Matthew Whitaker has repeatedly indicated that his loyalty lies with the President instead of Justice:

Whitaker has publicly attacked the FBI for failing to indict Hillary Clinton for using a personal email. He defended Donald Trump Jr.’s decision to meet with a Russian operative promising dirt on Hillary Clinton. He opposed the appointment of a special counsel to investigate Russian election interference (“Hollow calls for independent prosecutors are just craven attempts to score cheap political points and serve the public in no measurable way.”) Whitaker has called on Rod Rosenstein to curb Mueller’s investigation, and specifically declared Trump’s finances (which include dealings with Russia) off-limits. He has urged Trump’s lawyers not to cooperate with Mueller’s “lynch mob”.

Donald Trump wants an Attorney General who is loyal to Donald Trump above all else because when Robert Mueller issues the report for the investigation, he does not do so directly to the public or even Congress. If Jeff Sessions was still Attorney General, his recusal meant that Mueller would have issued the report to Rod Rosenstein. But, if an Attorney General is in place who has not recused himself, the report would be issued to this Attorney General instead, and as has already been noted, Matthew Whitaker has no plans to recuse himself from the investigation. Why is this important? Because Rudy Giuliani has already indicated that their plan is to block the Department of Justice from releasing the report:

Talking Points Memo: Giuliani: Team Trump Will Likely Try To Block Mueller Report’s Release

Trump lawyer Rudy Giuliani said that the administration may claim executive privilege to block Deputy Attorney General Rod Rosenstein from releasing Special Counsel Robert Mueller’s report when the investigation is finished, according to a New Yorker report.

Giuliani claims that President Donald Trump’s original legal team—which has undergone many mutations since—cut a deal with Mueller that that the White House can object to public dissemination of information from the probe on the grounds of executive privilege.

When asked if the White House is likely to invoke this clause, Giuliani was frank: “I’m sure we will.”

The whole point behind Donald Trump nominating Matthew Whitaker as Acting Attorney General is to try to stop the Mueller Investigation’s report from ever seeing the light of day, and Donald Trump is evidently so afraid of what will be in that report, that he is willing to violate Department of Justice policy and the Constitution in order to do so.

Democratic Senators have been calling for Matthew Whitaker to recuse himself from the Mueller investigation. While that is important, because his recusal would mean that he wouldn’t be able to block the Mueller investigation report from being released, Democrats shouldn’t just be calling for that. They should also be making it quite clear that the appointment itself is illegal and invalid. Rod Rosenstein should be the Acting Attorney General, not Matthew Whitaker.


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