Do We Have an Attorney General?

Who currently has the authority to run the U.S. Department of Justice? It’s a question overwhelmed by many other important national news stories right now (and the usual shiny objects), but it needs an answer as soon as possible.

The U.S. Attorney General, as the federal government’s top lawyer, directs a wide variety of high-profile enforcement policies, from elections interference to immigration to health care to civil rights to terrorism and hate crimes. Deputy Attorney General Rod Rosenstein emphasized the stakes of the Department’s work at last week’s investiture of the new U.S. Attorney for Virginia’s Eastern District, Zach Terwilliger: “The Department of Justice wields enormous power over people’s lives, much of it beyond judicial or political review,” he said, underscoring the need for attorneys of good character and sound judgment.

So selecting the individual who will act as Attorney General is, legally and in all other ways, a big deal. Unfortunately, the Trump administration’s elevation of Matthew G. Whitaker – formerly chief of staff to ousted Attorney General Jeff Sessions – to head the Department raises legal questions that may seem esoteric to most people. Whitaker’s designation also highlights numerous ethical and political concerns about his motivations and fitness, which are much easier to understand. But since that debate likely isn’t going to be anything but partisan, the legal issues may, amazingly, find a clearer resolution.

Can he do that?

To recap: Last week, the Trump administration asked Sessions to resign as Attorney General, and Sessions did so. But instead of following the Department’s default line of succession that would elevate Senate-confirmed Deputy AG Rosenstein, Trump said he was naming a different Department employee – Whitaker – to serve in “acting” capacity until he’s confirmed by the Senate. Can he do that?

Speed primer on executive authority for non-lawyers: The president’s authority derives first from the Constitution’s Article II and then from what Congress expressly agrees to. Sometimes Congress’s agreement can also be inferred, such as when the president has taken a certain type of action before and Congress never objected. (Reminder: Presidents can be expected to take an expansive view of their legal authority.) The few limits in Article II are the most basic boundaries on presidential power, and advice-and-consent is one of these. But over time, Congress has enacted various laws that say how principal-officer vacancies should be addressed in the absence of a Senate-confirmed appointee.

What does the Constitution say?

There’s a legitimate argument that everything Whitaker does as “Acting Attorney General” is invalid. Since he hasn’t been confirmed by the Senate, the notion that he can lead DOJ is DOA, according to Department veterans Neal Katyal (Acting Solicitor General under Obama) and John Yoo (Deputy Attorney General under Bush II).

Article II authorizes the executive to nominate certain public officers to be appointed with the advice and consent of the Senate. The Appointments Clause applies to the Attorney General and many of his or her subordinates, but not to internally-focused roles like the AG’s chief of staff. As Acting Attorney General, Whitaker would supervise several Senate-confirmed officers despite not having been confirmed himself. This setup, Katyal argues with private lawyer George Conway, violates what the framers had in mind with the Appointments Clause:

Because Mr. Whitaker has not undergone the process of Senate confirmation, there has been no mechanism for scrutinizing whether he 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 Mr. Whitaker’s only supervisor is Mr. Trump himself, and the president is hopelessly compromised by the Mueller investigation.

Not so fast, counters Texas law professor Steve Vladek. The Appointments Clause allows for contingencies:

[I]n an 1898 decision, United States v. Eaton, the Supreme Court rejected the argument that only a principal officer confirmed by the Senate can temporarily fill the shoes of another principal officer. So long as an inferior officer is exercising the duties of the principal officer “for a limited time, and under special and temporary conditions,” the Court said, he “is not thereby transformed into the superior and permanent official.” The Supreme Court in Eaton did not go on to define what “a limited time” or “special and temporary conditions” entails, but it made clear that those are the key constitutional considerations.

But unless you’re a committed constitutional originalist, a consensus interpretation would probably take a pragmatic view of what the constitution requires in this situation, Chicago law professor Will Baude predicts. Still, the key question is whether the current circumstances qualify as “special and temporary conditions” in which Eaton permitted an unconfirmed individual to act as a principal officer.

In a memorandum issued today defending Whitaker’s authority, the Justice Department’s Office of Legal Counsel cites centuries of interim appointments that purportedly support a liberal application of Eaton, which matches the modern reality that 1,200 federal positions now require Senate confirmation. “In three instances,” the memo points out, “President Obama placed a Chief of Staff above at least one Senate-confirmed officer within the same department.” The memo also asserts that an Acting Attorney General is not a principal officer subject to the Appointments Clause, citing an interim AG who served for six days in 1866.

As expected, the Trump administration insists that the current president is entitled to the same level of deference typically accorded to the executive, despite his violation of all manner of governing norms. The counterargument is this: When a president implicated in a federal law-enforcement investigation orchestrates an unnecessary Justice Department vacancy to install a leader who’s hostile to that investigation, those aren’t “special and temporary conditions,” and historical precedent gives him no constitutional cover.

What do federal statutes say?

Constitutional requirements aside, there are also two federal statutes at play here. One is 28 U.S.C. § 508, which addresses who should perform the Attorney General’s duties if the office goes vacant. In that case, the statute says, “the Deputy Attorney General may exercise all the duties of that office.” Currently, that would be Rosenstein.

But the text of § 508, in itself, doesn’t necessarily prohibit the president from designating a different person. And as Georgetown law professor Marty Lederman explains, the Justice-specific § 508 has to be read in conjunction with the broader Vacancies Reform Act, which permits the president to “direct an officer or employee of [an] Executive agency to perform the functions and duties of [a] vacant office” for up to about seven months. As the Department’s memo argues at length, administrations of both parties have construed the Vacancies Reform Act to allow unconfirmed temporary designations, whether or not Senate-confirmed officials were available. But the question of how the two statutes work together in these circumstances has no definitive answer.

The two laws seem intended primarily to make sure executive agencies have clear, legitimate leadership during inevitable transitions. I’d say they’re a wash, at best, for determining Whitaker’s legitimacy. The Vacancies statute is at least a facially plausible justification for the administration’s selection of Whitaker instead of Rosenstein or another Department official that the Senate had contemplated as a potential interim AG. But there are reasons to be skeptical about whether Congress intended the Vacancies statute to permit this particular situation.

First, this vacancy existed only because the president asked for Sessions’s resignation. That request was functionally, if not legally, equivalent to firing Sessions without apparent cause. The Vacancies statute doesn’t apply to openings created when the president chooses to fire a Senate-confirmed official, for obvious reasons. Second, § 508 arguably puts stricter limits on AG placeholders; yet the administration offered no explanation for disregarding the intuitive order of succession that section provides. Third, statutes don’t overrule constitutional requirements, and the Vacancies Reform Act shouldn’t be used to “hack” the Appointments Clause, as the Cato Institute’s Julian Sanchez puts it:

[The statute’s] seven-month clock is extended for the period during which the nomination of a permanent replacement is pending, and restarts if that nomination fails to win the Senate’s consent.  In theory, at least, that means Whitaker’s “temporary” leadership of DOJ could last for the remainder of Trump’s term, provided the Senate finds Trump’s nominees to replace him even less acceptable.

It’s worth noting that even though Trump has been talking about firing Sessions for a year and a half, the administration hasn’t put forward potential permanent nominees to emphasize the temporary nature of Whitaker’s tenure.

Even with legislative assent to Whitaker’s interim role, then, we can’t avoid the constitutional issue whether a bad-faith “designation” – even if temporary – offends the Appointments Clause. And none of this analysis even addresses whether Whitaker, even if acting legally as AG, should recuse himself from the Mueller investigation or whether the Senate should ever confirm him as Attorney General, if nominated.

So returning to the title question, it’s very possible that we don’t have anyone legally acting as Attorney General. Given all this uncertainty, why ditch Sessions and name Whitaker with neither a consensus on whether the designation is even legal nor a path to permanency?

Because this president feels most comfortable when he’s starting a fight. Especially if the fight is really about him.

And now he’s got one. Yesterday, in an unrelated suit against the federal government, the State of Maryland asked the district court for a preliminary injunction ordering the government not to file pleadings under Whitaker’s authority, since all his actions in his capacity of Acting Attorney General might be nullities. Somewhere in Maryland’s federal district court (and probably its Solicitor General’s office, too), a lawyer is combing through 19th-century interim cabinet appointments.

Categories: Essays, News

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