Summary: The appointment of Chief of Staff to the Attorney General Matthew Whitaker as acting Attorney General after resignation of Jeff Sessions has raised questions about the constitutionality of the appointment. Although these questions stem from concern about Whitaker’s position on the Mueller probe, they are nonetheless legitimate, unanswered questions about the constitutionality of the president appointing someone not confirmed by the Senate to an office that answers only to the president.
On Wednesday, Nov. 7, 2018, Attorney General Jeff Sessions submitted his letter of resignation at the request of President Donald Trump. Then the President appointed Matthew Whitaker, Chief of Staff to Attorney General Sessions, to become the new acting Attorney General of the United States of America. The next day, Neal Katyal and George Conway III, husband of Kellyanne Conway, wrote an Opinion article in the New York Times claiming that the appointment of Whitaker to the position of Attorney General is unconstitutional under the Appointment Clause in Section 2, Article II of the United States Constitution.
Justification for the legality of the appointment can be drawn to the Federal Vacancies Reform Act (FVRA), which allows the president to appoint, in the cases of resignation, death, or incapacitation, another to fill that position for a limited time. It is not clear, however, whether the appointment of an individual as a principal officer, an officer that answers only to the president, must be someone that is confirmed by the Senate. FVRA does state that in the case where an individual is no longer able to fulfill the duties of their role, either the first assistant of the officer, a presidential appointed and Senate confirmed individual, or a presidential appointed and senior office of that agency may replace, for a limited time, the vacancy. According to this reading, the FVRA clearly permits the president to appoint someone such as Whitaker, who occupied a senior position as Chief of Staff to the Attorney General, to take up the office of the Attorney General.
This interpretation, however, may run contrary to the Appointments Clause of the Constitution, as the clause requires every principal officer be Senate confirmed. In United States v. Eaton, the Supreme Court permitted a diplomatic vice counsel to serve for a limited time and under special and temporary conditions as an acting principal officer. Therefore, it is not that the appointment of an individual to a principal officer’s position is without precedent. In a more recent case, however, Justice Thomas’s wrote a concurring opinion declaring that a president may never appoint an individual to fill the position of a principal officer no matter for how short a time unless confirmed by the Senate. However, as the opinion is merely a concurrence, the argument does not present any weight as legal precedence. An argument forwarded by the Office of Legal Counsel classified the individual acting in the role of the principal officer as an inferior officer, and therefore does not need to confirmed by the Senate. On the other hand, Justice Thomas’s concurrence questions whether an appointment is temporary if they are to exercise all the powers of that office.
Even if the president has the power to appoint a non-Senate confirmed individual to the job of a principal officer, the Justice Department already has a statutory line of succession for when the Attorney General is no longer able to fulfill the duties of the office. The question now shifts to whether the more general FVRA supplant the more specific statute that details the line of succession. Generally, specific statutes override broader statutes. If this is indeed the correct interpretation, then the acting Attorney General should instead be the Senate-confirmed deputy Attorney General, Rosenstein, instead of Whitaker. The Office of Legal Counsel’s conclusions in 2007 diverge from those of conventional application of the law, instead ruling that FVRA does indeed give the president the powers to override the more specific statute of succession.
The constitutionality and legal implications of Whitaker’s appointment is important since he had called Robert Mueller’s investigations a “witch hunt.” Democrats have called for Whitaker to recuse himself, noting his past comments on the probe and several conflicts of interest. Should Whitaker not recuse himself, House Dems say they will summon him, by subpoena if necessary. The legal questions addressed above will be the focus of Democrats and the courts should Senate Democrats move forward with a lawsuit against the appointment of Whitaker. Whether the legal problem of succession will be resolved may hinge upon Whitaker’s actions; should he recuse himself from the Mueller probe, the Democrats will likely not pursue legal challenges to the appointment of a non-Senate confirmed individual to a principal office, and the questions regarding succession and the FVRA will still go unsolved.
Mochen Ma is a sophomore in Trinity, studying Political Science with concentrations in Security, Peace, and Conflict, and Political Theory.