Trump’s ap­point­ment of the act­ing AG is un­con­sti­tu­tional


The con­ser­va­tive law pro­fes­sor Steven Cal­abresi pub­lished an op-ed in the Wall Street Jour­nal in May ar­gu­ing that Robert Mueller’s ap­point­ment as spe­cial coun­sel was un­con­sti­tu­tional. His ar­ti­cle got a lot of at­ten­tion, and it wasn’t long be­fore Pres­i­dent Don­ald Trump picked up the ar­gu­ment, tweet­ing that “the Ap­point­ment of the Spe­cial Coun­sel is to­tally UN­CON­STI­TU­TIONAL!”

Cal­abresi’s ar­ti­cle was based on the Ap­point­ments Clause of the Con­sti­tu­tion, Ar­ti­cle II, Sec­tion 2, Clause 2. Un­der that pro­vi­sion, so­called prin­ci­pal of­fi­cers of the United States must be nom­i­nated by the pres­i­dent and con­firmed by the Se­nate un­der its “Ad­vice and Con­sent” pow­ers.

He ar­gued that Mueller was a prin­ci­pal of­fi­cer be­cause he is ex­er­cis­ing sig­nif­i­cant law en­force­ment author­ity and that since he has not been con­firmed by the Se­nate, his ap­point­ment was un­con­sti­tu­tional. As one of us ar­gued at the time, he was wrong. What makes an of­fi­cer a prin­ci­pal of­fi­cer is that he or she re­ports only to the pres­i­dent. No one else in gov­ern­ment is that per­son’s boss. But Mueller re­ports to Rod Rosen­stein, the deputy at­tor­ney gen­eral. So, Mueller is what is known as an in­fe­rior of­fi­cer, not a prin­ci­pal one, and his ap­point­ment with­out Se­nate ap­proval was valid.

But Cal­abresi and Trump were right about the core prin­ci­ple. A prin­ci­pal of­fi­cer must be con­firmed by the Se­nate. And that has a very sig­nif­i­cant con­se­quence to­day. It means that Trump’s in­stal­la­tion of Matthew Whi­taker as act­ing at­tor­ney gen­eral of the United States af­ter forc­ing the res­ig­na­tion of Jeff Ses­sions is un­con­sti­tu­tional. It’s il­le­gal. And it means that any­thing Whi­taker does, or tries to do, in that po­si­tion is in­valid.

The ap­point­ment of Whi­taker, who was Ses­sions’ chief of staff at the Jus­tice De­part­ment, de­fies one of the ex­plicit checks and bal­ances set out in the Con­sti­tu­tion, a pro­vi­sion de­signed to pro­tect us all against the cen­tral­iza­tion of gov­ern­ment power.

If you don’t be­lieve us, then take it from Supreme Court Jus­tice Clarence Thomas, whom 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, 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.

Whi­taker has not been named to some ju­nior post one or two lev­els be­low the Jus­tice De­part­ment’s top job. He has now been vested with the law en­force­ment author­ity of the en­tire United States gov­ern­ment, in­clud­ing the power to su­per­vise Se­nate-con­firmed of­fi­cials like the deputy at­tor­ney gen­eral, the so­lic­i­tor gen­eral and all United States at­tor­neys.

There has been no mech­a­nism for scru­ti­niz­ing whether Whi­taker has the char­ac­ter and abil­ity to even­hand­edly en­force the law in a po­si­tion of such grave re­spon­si­bil­ity. The pub­lic is en­ti­tled to that as­sur­ance, es­pe­cially since Whi­taker’s only su­per­vi­sor is Trump him­self, and the pres­i­dent is com­pro­mised by the Mueller in­ves­ti­ga­tion. That is why ad­her­ence to the Ap­point­ments Clause is so im­por­tant here, and al­ways.


Neal K. Katyal was an act­ing so­lic­i­tor gen­eral un­der Pres­i­dent Barack Obama. George T. Con­way III is a lit­i­ga­tor at Wachtell, Lip­ton, Rosen & Katz in New York.

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