AG vet­ting best done by Se­nate

The Progress-Index Weekend - - OPINION - The Wash­ing­ton Post

It has been two weeks since Pres­i­dent Don­ald Trump booted Jeff Ses­sions from the top of­fice in the Jus­tice Depart­ment be­cause the pres­i­dent disliked Ses­sions’ eth­i­cal com­mit­ments. Yet Trump has not an­nounced a per­ma­nent re­place­ment, and his pick to lead the depart­ment in an act­ing ca­pac­ity, Matthew G. Whi­taker, is un­qual­i­fied and quite pos­si­bly legally barred from hold­ing the of­fice. Un­less re­moved by the pres­i­dent or a court, he could oc­cupy the at­tor­ney gen­eral’s seat for most of the rest of Trump’s first term.

Con­gres­sional lead­ers have tried to sup­press con­cerns about Whi­taker - that he is un­fit, that he was il­le­gally pro­moted and that he is a loyal Trump sol­dier who will med­dle in Jus­tice Depart­ment in­ves­ti­ga­tions and pol­icy - by in­sist­ing that the White House will soon send a per­ma­nent at­tor­ney gen­eral nom­i­nee to the Se­nate for con­fir­ma­tion. Though this would not neu­tral­ize wor­ries about what Whi­taker could do while the Se­nate vet­ted a per­ma­nent re­place­ment, it would put a tighter time limit on his ten­ure lead­ing the Jus­tice Depart­ment. Yet Satur­day, Trump told re­porters that he is close to choos­ing a new United Na­tions am­bas­sador but not a new at­tor­ney gen­eral. In­stead, he called Whi­taker “a great gen­tle­man” who is do­ing “a fan­tas­tic job.”

In fact, Whi­taker’s wacky the­o­ries on ju­di­cial power put him far out­side the main­stream of Amer­i­can lawyers. His his­tory work­ing with a sketchy com­pany ac­cused of fraud raises ques­tions about his eth­i­cal stan­dards, and his ex­pressed hos­til­ity to­ward the Rus­sia probe by spe­cial coun­sel Robert Mueller makes him an es­pe­cially poor choice to head the Jus­tice Depart­ment now.

Whi­taker’s se­lec­tion to be act­ing at­tor­ney gen­eral, with­out Se­nate con­fir­ma­tion for any job in the govern­ment, raises le­gal is­sues that a re­cent anal­y­sis from the Of­fice of Le­gal Coun­sel failed to ex­tin­guish. His­tory and a plain read­ing of the law sug­gest that such an ar­range­ment is per­mis­si­ble only in ex­i­gent cir­cum­stances and for very lim­ited pe­ri­ods of time. There are no ex­i­gent cir­cum­stances here; Trump just wanted to fire Ses­sions, and he did not want Deputy At­tor­ney Gen­eral Rod Rosen­stein to take his place. The fir­ing was re­port­edly long planned. As for tim­ing, the clock con­tin­ues to tick.

The Se­nate would not con­firm Whi­taker if he were nom­i­nated for a job that re­quires it, and he should not be ex­er­cis­ing the au­thor­i­ties of a Se­nate-con­firmable post for a prac­ti­cally in­def­i­nite pe­riod of time sim­ply be­cause the pres­i­dent wants him to. The Se­nate con­fir­ma­tion sys­tem was de­signed to com­bat the fa­voritism and the ap­pear­ance of cor­rup­tion that have tainted Whi­taker’s el­e­va­tion. Se­na­tors should be out­raged that the pres­i­dent has handed the Jus­tice Depart­ment to some­one they have had no say in eval­u­at­ing. They should be de­mand­ing an­swers, not avoid­ing the ques­tion.

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