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.
A PRINCIPAL OFFICER MUST BE CONFIRMED BY THE SENATE.
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.