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Oh boy.

The first move in riposte to Trump’s appointment of Matt Whitaker as Attorney General is now on the board, and it’s no week-kneed tentative gambit. It gets right down to forcing the issue. Fundamental questions of law must now be decided, and if this isn’t a constitutional crisis, yet, it’s certainly a constitutional confrontation. We must prepare ourselves, dear readers, for the proverbial interesting times. There’s quite a bit on the line here. This could reasonably be described as fraught. 

Whitaker, recall, is Trump’s appointee to replace the late and unlamented Jeff Sessions in the A.G. role. It’s really not being partisan and argumentative to note that first, he’s completely unqualified for the job, second, he’s in the spot that under regular order would be filled by Rod Rosenstein, third, he’s never been confirmed by the Senate for any position, and fourth, he’s on the record as having already determined that the Mueller investigation is in essence a witch hunt, and has also spoken in public about various ways in which it could (and should) be shut down.

From this factual matrix, it’s only a short leap to the conclusion that Trump has fired Sessions and circumvented the Justice Department’s statutory line of succession in order to wrest control of the Mueller investigation away from Rosenstein, and place it in the hands of somebody more friendly, a loyal retainer who can be trusted to look out for the President’s interests. That is, to stifle Mueller, one way or another.

Can Trump do that? You might well ask. The Justice Department’s own lawyers have said he can, in an opinion somehow squeezed out of the Office of Legal Counsel that argues, on the basis of some very old case law, plus a statute called the Vacancies Reform Act, that the President has the power to temporarily fill any empty Federal post with anyone he pleases. This isn’t a strong argument; the Vacancies Reform Act grants a general jurisdiction to fill empty chairs, but the line of succession in the A.G.’s office is governed by a different set of statutory provisions applicable specifically  to the Justice Department – 28 U.S. Code § 508 – and as we lawyers all know, when it comes to statutory interpretation, the specific trumps the general.

The arcana of overlapping Federal statutes is not, however, the true nub of the matter. This is:

The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

That’s Article 2, Section 2 of the United States Constitution, emphasis added. The Constitution divides officers of the Federal Government into two categories, “principal” and “inferior”.  It specifically allows for the President alone to appoint the “inferior” variety, but the appointment of “principals” must be made only with the advice and consent of the Senate. They must, in modern parlance, be confirmed.

The person occupying the office of the Attorney General is just such a principal officer, in that he or she reports only to the President. Anyone filling that role, temporarily or not, wields the power of a principal office and must therefore be appointed only after receiving Senate confirmation, if not for that specific office, then, as the law has been interpreted, for some other. Matt Whitaker has not received Senate confirmation for any office of the Federal Government. Rod Rosenstein, next in line under statute, has.

That seems fairly straightforward, doesn’t it? Lots of scholars and legislators on both sides of America’s political divide think so, and have fairly hollered as much in a number of public forums over the past few days. Given how obvious the issues are thought to be in at least some prominent and influential corners, somebody was bound to take their objections to the next level and challenge Whitaker’s installation in court, and somebody has.

First in the ring was the State of Maryland, which was already embroiled in litigation with the Justice Department itself over the latter’s failure to uphold key aspects of the Affordable Care Act (Obamacare). On the other side of that litigation, as named defendant: Jefferson Beauregard Sessions III. Maryland is now arguing that Matt Whitaker can’t fill the shoes of the departed Jeff Sessions in this lawsuit because his appointment is contrary to law – the State’s argument, essentially, is Who the hell is this guy? He’s got no standing! What have you done to Jeff?

That action was brought last week. Just today, it was reported that three members of the Senate Judiciary Committee, Sens. Richard Blumenthal (CT), Sheldon Whitehouse (RI), and Mazie Hirono (HI), have also entered the fray, bringing a suit in the D.C. Federal District Court for a declaratory order that Whitaker’s appointment was unconstitutional, because he was never confirmed by the Senate to any office. They aren’t bothering to argue that Whitaker should recuse himself, owing to his public pronouncements on the invalidity of the Mueller probe, and the resulting ethical conflict. They’re going straight for the jugular. He shouldn’t be there. The Constitution requires that he mustn’t be allowed to wield the power of the office to which Trump appointed him.

If Maryland succeeds, then everything that Whitaker does, so long as he persists, would be invalid. This could create chaos. The current A.G., whichever U.S. Attorneys are actually arguing the case, is the officer ultimately responsible for any litigation brought by or against the United States. The Attorney General is often the named party to actions, and Federal criminal indictments are often laid under the A.G.’s signature. Those proceedings would be called into question. Some key decisions, like whether Mueller was permitted to issue subpoenas or issue indictments, would have to be reopened. There could be hundreds of lawsuits surrounding the uncertainty, including those at the highest level, since, under the Judiciary Act of 1789, anything that reaches the Supreme Court is supposed to be directed by the A.G. personally. 

Meanwhile, if the Senators succeed, Whitaker will be prohibited by court order from exercising the duties of Attorney General. In plain English, he’ll be tossed out of office, and Rod Rosenstein will take his place, as per statute. As to anything that happened in the interim, the same problems discussed above with respect to Maryland’s suit would apply.

So then, this is, to use the legal term, Some Serious Shit. One way or another, it seems safe to assume, both of these cases are going all the way to the Supreme Court, and despite all the legal wrangling we’re bound to witness, I don’t know what sort of solid legal and constitutional arguments could be brought that would validate Whitaker’s appointment. It is, prima facie, unconstitutional. I can’t see why it isn’t.

Ah, but these things aren’t decided from a purely legal standpoint, not really. When it gets to the Supremes, it will be ruled upon by a court with a famously conservative majority, including a fellow named Kavanaugh who was just appointed owing, in large part, to his expansive view of Presidential power and prerogatives. Generally speaking, I would rely on SCOTUS, as presently constituted, to rule in favour of the President at least 99 times out of a hundred. Yet this isn’t just any case. The stakes are awfully high, and the power play that Trump has pulled with the Whitaker appointment is breathtakingly out of bounds by all established norms, Constitution aside. It gives every appearance of an attempt to obstruct justice by shutting down Mueller’s investigation, and should be viewed as improper for that reason alone. Meanwhile, the Constitution says what it says. Would five Justices, whatever their general political leanings, really rule that the President can appoint somebody to act as Attorney General, temporarily or not, without the advice and consent of the Senate?

They may have a conservative bias, but these judges are, after all, Justices of the United States Supreme Court. They are surely cognizant of their awesome responsibility. They all understand that any decision they render will reach far beyond this case, and the transitory affairs of Donald Trump, with the potential to redefine for future generations what a President can do, and what the Constitution means. The possibility of serious and lasting harm to the polity will weigh heavily upon them. They’ll craft their ruling with a view to history, and the continued healthy functioning of the exquisite system of checks and balances so carefully designed by the Founders.


I guess we’ll see. Oh boy.

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