Trump’s appointment may be unconstitutional

WASHINGTON — President Donald Trump’s decision to name as acting attorney general a little-known political appointee who has never been confirmed by the Senate has come under increasing criticism by legal scholars on both the right and left who say the appointment is unconstitutional.

Although Trump clearly had the authority to fire Attorney General Jeff Sessions, replacing him with Matthew Whitaker doesn’t pass constitutional muster, they say.

“I don’t see how he can hold that office. Whitaker’s appointment is not consistent with the Appointments Clause of the Constitution,” said John Yoo, a University of California, Berkeley law professor who worked in the Justice Department under President George W. Bush.

Many Democrats — and some Republicans — have said they believe Trump put Whitaker in the job to try to stop, or at least limit, the investigation that special counsel Robert S. Mueller III is conducting into Russian efforts to sway the 2016 election.

But the rising volume of objections, and questions about Whitaker’s past business dealings and controversial remarks, may be affecting Trump’s calculations. On Friday morning, before leaving for a weekend trip to France, Trump appeared to distance himself from Whitaker.

“Matt Whitaker — I don’t know Matt Whitaker. Matt Whitaker worked for Jeff Sessions, and he was always extremely highly thought of, and he still is. But I didn’t know Matt Whitaker,” Trump said when reporters asked about him.

“The choice was greeted with raves, initially, and it still is in some circles,” he added. “You know, it’s a shame that no matter who I put in, they go after them.”

Trump did not respond directly when asked about the legal dispute, which involves the constitutional provision that says the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint” ambassadors, judges and “all other officers of the United States.”