Ex­perts say Trump’s nam­ing of at­tor­ney gen­eral is il­le­gal

Los Angeles Times - - FRONT PAGE - By David G. Sav­age

WASH­ING­TON — Pres­i­dent 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 Atty. Gen. 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 UC 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 af­fect-

ing 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.”

A month ago, in an in­ter­view on Fox News’ “Fox & Friends,” Trump said just the op­po­site.

“I can tell you Matt Whi­taker’s a great guy. I mean, I know Matt Whi­taker,” he said then.

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.”

The Constitution al­lows “in­fe­rior of­fi­cers” to be ap­pointed by the pres­i­dent or by the “heads of de­part­ments.” But the at­tor­ney gen­eral is what the Supreme Court has re­ferred to as a “prin­ci­pal of­fi­cer” — a per­son who or­di­nar­ily must have Se­nate ap­proval.

Last year, the jus­tices ruled in a case rais­ing a sim­i­lar is­sue and struck down Pres­i­dent Obama’s ap­point­ment of an act­ing gen­eral coun­sel at the Na­tional La­bor Re­la­tions Board.

“The Se­nate’s ad­vice and con­sent power is a crit­i­cal struc­tural safe­guard of the con­sti­tu­tional scheme,” said Chief Jus­tice John G. Roberts Jr. in NLRB vs. SW Gen­eral.

“The framers en­vi­sioned it as an ‘ex­cel­lent check upon a spirit of fa­voritism in the pres­i­dent’ and a guard against ‘the ap­point­ment of un­fit char­ac­ters,’” he wrote,

quot­ing a pas­sage from the “Fed­er­al­ist Pa­pers.”

Look­ing back at early Amer­i­can his­tory, Roberts said that Congress in 1792 had al­lowed Pres­i­dent Ge­orge Wash­ing­ton to make tem­po­rary ap­point­ments of “act­ing of­fi­cials.”

He re­solved the case with­out de­cid­ing the con­sti­tu­tional is­sue, rul­ing that Obama had vi­o­lated the Fed­eral Va­can­cies Re­form Act of 1998 by ap­point­ing an act­ing gen­eral coun­sel who had been nom­i­nated for the same post at the la­bor board, but was not con­firmed by the Se­nate.

Jus­tice Clarence Thomas in a con­cur­ring opin­ion went fur­ther. He said the Constitution makes clear “prin­ci­pal of­fi­cers must be ap­pointed by the pres­i­dent by and with the ad­vice and con­sent of the Se­nate.”

Whi­taker’s sus­pect sta­tus could pose le­gal prob­lems for the gov­ern­ment. In the past, the Supreme Court has cast doubt on the le­gal­ity of an agency’s ac­tions if a top of­fi­cial was serv­ing il­le­gally.

Since the at­tor­ney gen­eral is cited by name in many of the Jus­tice Depart­ment’s ac­tions, in­clud­ing crim­i­nal cases, and in reg­u­la­tions the depart­ment is­sues, Whi­taker’s

sta­tus could quickly be chal­lenged in court.

Los An­ge­les at­tor­ney Alexan­der Stern said he and other lawyers planned to file such a chal­lenge. Sen. Richard Blu­men­thal (D-Conn.) also said he was con­sid­er­ing such a suit.

“You al­ways need a plain­tiff with stand­ing, but that shouldn’t be dif­fi­cult,” Stern said. “If you are be­ing sued, pros­e­cuted by, or su­ing the at­tor­ney gen­eral,” a chal­lenge could be in or­der, he said.

Whi­taker’s ap­point­ment marked a sharp break with prece­dent. In the past, when an at­tor­ney gen­eral left of­fice, the job would be filled by an­other se­nior Jus­tice Depart­ment of­fi­cial who had been con­firmed by the Se­nate.

“As far as know, it would be the first time in U.S. his­tory the pres­i­dent has des­ig­nated as an ‘act­ing’ at­tor­ney gen­eral some­one who was not then serv­ing in an of­fice to which he or she was ap­pointed by and with the ad­vice and con­sent of the Se­nate,” wrote George­town law pro­fes­sor Mar­tin Le­d­er­man, who worked in the Jus­tice Depart­ment un­der Obama.

Se­nate Demo­cratic leader Charles E. Schumer of New York raised the same

is­sue in a let­ter to Trump on Fri­day.

“I am not aware of any prece­dent for ap­point­ment of an of­fi­cial who has not been con­firmed by the Se­nate to serve as act­ing at­tor­ney gen­eral,” he wrote.

The first peo­ple to put a spot­light on the is­sue were Wash­ing­ton at­tor­ney Neal K. Katyal, who served as an act­ing solic­i­tor gen­eral un­der Obama, and Ge­orge T. Con­way III, a prom­i­nent con­ser­va­tive lawyer who is also the hus­band of Kellyanne Con­way, a coun­selor to Trump.

Writ­ing in the New York Times, they said Whi­taker’s ap­point­ment is “il­le­gal. And it means that any­thing that Mr. Whi­taker does, or tries to do, in that po­si­tion is in­valid.”

Wal­ter Dellinger, a for­mer White House lawyer un­der Pres­i­dent Clin­ton, said Trump could have eas­ily cho­sen an­other of his Se­nate-con­firmed ap­pointees to serve as act­ing at­tor­ney gen­eral, which gives the gov­ern­ment a weak case in de­fend­ing Whi­taker.

“This is a ter­ri­ble case for the gov­ern­ment to ar­gue that the of­fi­cer should not have to be Se­nate con­firmed. Their best ar­gu­ment might be that there are some

ur­gent sit­u­a­tions in which no Se­nate-con­firmed of­fi­cer is avail­able,” he said.

“But that is very far from true here where there is a Se­nate-con­firmed deputy at­tor­ney gen­eral, solic­i­tor gen­eral, as­sis­tant at­tor­ney gen­eral for the Of­fice of Le­gal Coun­sel and more who are per­fectly com­pe­tent to step in.”

Whi­taker, 49, was a U.S. at­tor­ney in Iowa from 2004 to 2009 and was con­firmed to the Se­nate for that post. He later ran as a Repub­li­can can­di­date for Se­nate in 2014, but came in fourth in the GOP pri­mary.

He gained at­ten­tion in Wash­ing­ton as a con­ser­va­tive com­men­ta­tor, in­clud­ing on CNN, where he was a critic of Mueller’s in­ves­ti­ga­tion. Late last year, the White House in­stalled him as a chief of staff for Ses­sions.

How long he’ll last in the new job — and whether he’ll take any sig­nif­i­cant steps against Mueller — re­mains to be seen.

Speak­ing to re­porters in his home state on Fri­day, Se­nate Ma­jor­ity Leader Mitch McCon­nell of Ken­tucky pre­dicted that Whi­taker’s stint as act­ing at­tor­ney gen­eral would be short.

“I think this will be a very in­terim AG,” McCon­nell said, adding that he thinks the pres­i­dent will “pretty quickly” send the Se­nate a nom­i­nee for a new at­tor­ney gen­eral. He added that the “pres­i­dent has said re­peat­edly he’s not go­ing to dis­miss the Mueller in­ves­ti­ga­tion.”

Chip Somodevilla Getty Images

MATTHEW WHI­TAKER, left, Pres­i­dent Trump’s se­lec­tion to be act­ing at­tor­ney gen­eral, takes part in a Jus­tice Depart­ment event in Au­gust with Kristi John­son of the FBI and then-Atty. Gen. Jeff Ses­sions.

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