Matthew Whitaker’s Appointment as Acting Attorney General Is Illegal

Let Clarence Thomas explain.

Acting Attorney General Matt Whitaker
Matt Whitaker Douglas Graham/CQ Roll Call

On Wednesday, President Donald Trump appointed Matthew Whitaker as acting attorney general after forcing Attorney General Jeff Sessions out. Whitaker, who served as Sessions’ chief of staff, will now reportedly oversee Robert Mueller’s investigation into Russian interference in the 2016 election—a probe he has publicly criticized and seems poised to seek to restrain.* It is not entirely clear, however, that Whitaker’s appointment is actually legal. That’s a problem for Trump because any federal criminal defendant could challenge Whitaker’s authority to prosecute him. There are three main arguments that such a defendant would likely raise against the appointment’s legality.

1. The Appointments Clause

The first and most powerful argument against Whitaker’s appointment is that the Constitution would seem to forbid it. Neal Katyal and George Conway made this argument in a Thursday New York Times op-ed, and it is appealingly straightforward. The Constitution’s Appointments Clause requires any “principal officer” to be confirmed “with the Advice and Consent of the Senate.” There is no question that the attorney general, like any Cabinet secretary, is a principal officer. Yet Whitaker has not received Senate confirmation, except a 2004 confirmation for federal prosecutor that has since lapsed. So how can he lawfully serve as the head of the Justice Department?

To Katyal and Conway, the answer is simple: He can’t. In their reading, Whitaker’s elevation marks an illegal effort to let a constitutional “nobody” seize control of the DOJ in violation of key constitutional safeguards. Supreme Court Justice Clarence Thomas would almost certainly agree. In a 2017 concurring opinion, Thomas declared that the president may never appoint a principal officer without Senate confirmation, even to fill a vacancy for a limited period. The fact that an appointment is temporary, or that the appointee serves in an “acting” capacity, “does not change the analysis,” Thomas wrote. “I do not think the structural protections of the Appointments Clause can be avoided based on such trivial distinctions.”

Trump appointed Whitaker under the Federal Vacancy Reform Act, which allows him to serve for 210 days, or longer if a replacement is awaiting Senate confirmation when the term expires. But as Thomas wrote in 2017, the president cannot use the FVRA to make an “end-run around the Appointments Clause.” Any federal criminal defendant can sue to block his prosecution, citing Thomas’ logic to argue that Whitaker is exercising his powers unlawfully. This theory may appeal to conservative judges who’ve long opposed the modern trend of presidents sidestepping the Senate’s advice and consent function.

Even if this constitutional claim fails, there are two statutory reasons why Whitaker might not be permitted to serve as acting attorney general. Both revolve around technical aspects of the FVRA, but I promise they aren’t as confusing as you might expect.

2. Justice Department succession rules

As I noted above, the Trump administration is relying on the FVRA to justify replacing Sessions with Whitaker. But there’s a fundamental problem with this interpretation: It’s debatable whether that law even applies here. The FVRA deals with Cabinet-level vacancies in general terms—but Congress has passed a more specific statute directly governing succession at the Department of Justice.

That law, Section 508, states that “in case of a vacancy in the office of Attorney General,” the deputy attorney general “may exercise all the duties of that office.” This rule would require Deputy Attorney General Rod Rosenstein to step in as acting attorney general—and continue overseeing the Mueller investigation. The FVRA, by contrast, allows the president to authorize “an acting official to perform the functions and duties of any office” in an executive agency temporarily when an official resigns. But the FVRA states that it is not the “exclusive means” for filling a vacancy when a different “statutory provision expressly … designates an officer” to step in “temporarily in an acting capacity.” Section 508 does precisely that, assigning the deputy attorney general the “duties” of the attorney general.

Trump’s lawyers seem to believe that the FVRA overrides Section 508. And the Office of Legal Counsel concluded as much in 2007. But as John E. Bies has noted at Lawfare, a specific statute (like Section 508) typically takes precedence over a general one (like the FVRA). Congress passed the FVRA to deal broadly with the issue of executive vacancies; it passed Section 508 to deal specifically with the issue of vacancies in the attorney general’s office. A defendant could argue that Section 508 overrides the FVRA and, as a result, Rosenstein must step into Sessions’ role—not Whitaker.

3. Resignation vs. termination

There’s a final reason the FVRA might not apply in this situation. The law permits the president to temporarily replace an executive branch officer with a long-serving official in the agency or an individual who has already been confirmed by the Senate for another position. But this rule only kicks in when the officer “dies, resigns, or is otherwise unable to perform the functions and duties of the office.”

Law professor Steve Vladeck has made a compelling case that the FVRA is not triggered when an official is fired. After all, the plain language of the statute describes three specific scenarios—death, resignation, or inability to perform one’s duties. It conspicuously omits termination. There is thus a plausible argument that a president cannot invoke the FVRA to fill a vacancy after firing an officeholder.

The application of this theory here is tricky. It’s obvious that, practically speaking, Trump fired Sessions. His resignation letter begins: “At your request, I am submitting my resignation.” In the law there’s a principle called “constructive discharge,” which applies when an employee technically quit, but felt she had no choice but to do so. Under the Civil Rights Act, for instance, an employee may sue for constructive discharge if she quit because she faced a hostile work environment due to her sex. The paperwork might say she resigned, but she can still sue for unlawful termination.

Former prosecutor Renato Mariotti and Harvard Law professor Larry Tribe have both raised the possibility that Sessions faced constructive discharge. And it is abundantly clear that he did not wish to step down. The language of his letter alone—“at your request”—indicates as much. Moreover, administration officials told CNN that Sessions asked to stay through Friday, but was denied. A court could conclude from these facts that Sessions’ “resignation” was not the kind of voluntary departure envisioned by the FVRA, but rather a constructive discharge. As a result, the FVRA would not apply, leaving Section 508 to fill the void—and once again, Rosenstein would step into Sessions’ role.

It is not unusual for litigants to challenge the authority of a federal agency or official to punish them. In June, the Supreme Court ruled that an administrative law judge was not properly appointed to the Securities and Exchange Commission; four years ago, it held that a member of the National Labor Relations Board was unlawfully appointed. As Thomas wrote in 2017, the judiciary cannot ignore the law’s “check on executive power for the sake of administrative convenience or efficiency.” If Whitaker can’t legally serve as the chief law enforcement officer of the United States government, it’s the duty of the courts to toss him out.

*Correction, Nov. 9, 2018: An earlier version of this article misidentified Whitaker’s former position. He was Sessions’ chief of staff, not chief of state.