That President Trump finally ousted Jeff Sessions as attorney general, the day after the midterm elections, was hardly a surprise. Angry at Sessions’s decision to recuse himself from overseeing special counsel Robert S. Mueller III’s investigation into Russian interference in the 2016 campaign, Trump had lashed out frequently at what he called the “Justice” Department. He mocked Sessions’s tenure there as “DISGRACEFUL!” and even (at least according to Bob Woodward, though Trump denied it) called his AG a “mentally retarded . . . dumb Southerner.”
Trump’s choice to step in as acting attorney general, Matthew G. Whitaker, immediately drew political fire. That was also unsurprising. Whitaker, who was Sessions’s chief of staff, has frequently and publicly attacked the Mueller probe and the courts. He also chaired Sam Clovis’s campaign for Iowa state treasurer — before Clovis co-chaired the 2016 Trump campaign and appeared as a witness before the Mueller grand jury.
As a result, Democratic senators, ethics groups and state attorneys general are calling on Whitaker, too, to recuse himself from overseeing the Mueller investigation. The state attorneys general, for instance, told Whitaker his past comments meant “a reasonable person could question your impartiality in the matter.” Some GOP lawmakers have weighed in too, with Sen. Susan Collins (R-Maine) opining that “Mueller must be allowed to complete his work without interference — regardless of who is AG.”
Yet even as Whitaker suggested that he has no intention of recusing himself (yet another non-shocker), some surprising news did arrive. In a Thursday New York Times op-ed, well-known constitutional lawyers Neal K. Katyal and George T. Conway III argued Whitaker’s appointment was not just unwise but also unconstitutional.
The legal argument hinges on the 1998 Federal Vacancies Reform Act (FVRA), which lays out who can serve in an acting role, and for how long, when a top-ranking government official resigns. (It’s less clear how it applies when someone is fired — thus, the fact that Sessions resigned, even under duress, is important.)
The FVRA offers three ways to replace a Cabinet-level official
Basically, the FVRA offers three options. First, the officer’s “first assistant” can step in. At the Justice Department, that would be Deputy Attorney General Rod J. Rosenstein, who many think is already in Trump’s line of fire. Rosenstein, you’ll recall, reportedly proposed using the 25th Amendment to remove Trump from office.
Second, the president can choose someone else for the job — as long as that person is presently serving in a Senate-confirmed position. This is how Mick Mulvaney, confirmed by the Senate in 2017 as director of the Office of Management and Budget, is able to serve as acting head of the Consumer Financial Protection Bureau without additional Senate review.
Or third, the president can choose someone who is not Senate-confirmed, as long as they are a senior official paid at least at the GS-15 level of the federal civil service salary scale (about $135,000 in Washington). Normally that would mean a career government employee, not a political appointee, but not invariably.
Trump chose Door No. 3, naming Whitaker, whose only confirmation by the Senate was in 2004 when he became a U.S. attorney. He left that job in 2009; the chief of staff position did not require confirmation. But it does meet the salary threshold, and thus qualifies Whitaker to serve under the FVRA for a 210-day period.
But these two scholars argue that FVRA itself is unconstitutional — and cite Justice Clarence Thomas
But there’s still a problem, according to Katyal and Conway: They argue the FVRA itself overrides the constitutional provision that all “principal officers” receive Senate confirmation. The attorney general, supervised only by the president, is certainly a principal officer. And thus the case, they argue, is open and shut:
We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design. … For the president to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document.
For reinforcement, they turn to a notable ally: Supreme Court Justice Clarence Thomas. In a 2017 case, Thomas agreed with a court decision concerning the FVRA, but wrote a concurring opinion that went much further.
“Appointing principal officers under the FVRA,” Thomas concluded, “raises grave constitutional concerns because the Appointments Clause forbids the President to appoint principal officers without the advice and consent of the Senate.” Doing so, he argued, risked making the clause “an empty formality.”
Politically, it would be relatively easy for the Trump White House to dismiss an argument coming from Katyal alone; he’s worked for Al Gore, Barack Obama and on behalf of Guantanamo Bay detainees. But Conway’s pedigree is quite different. While he has recently become a public critic of Trump, in the 1990s Conway helped with the Paula Jones case that helped lead to Bill Clinton’s impeachment; he is married to high-ranking Trump staffer Kellyanne Conway; and he was seriously considered for the role of Trump’s solicitor general.
Thomas’s opinion naturally carries even more weight in conservative legal circles — and, suddenly, has been taken as gold by opponents of the president eager to protect Mueller. If this portion of the FVRA is indeed unconstitutional — the case is hardly a slam dunk — then any actions taken by someone appointed in this manner would be legally void.
But be careful what you wish for
Even so, fans of good government might be careful what they wish for. As Stanford Law School’s Anne Joseph O’Connell notes: “We need the Vacancies Act for temporary gap-filling. The modern appointments process is brutal.” Her research shows that one-fifth of appointed positions may be vacant at any given time — necessitating acting fill-ins — and even successful appointments can take months. Both of those trends have likely been exacerbated during the first two years of the Trump administration.
If this week’s strange new bedfellows succeed in legally truncating the FVRA, it may preserve the independence of the Mueller investigation — at least for a time. But it would do so at the cost of preventing experienced career officials from stepping into high-ranking acting roles. Thus winning the short-term battle might undermine the long-term war for administrative competence and stability in government.
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