Obstruction of justice in plain sight: appointment of Whitaker is unconstitutional and illegal

Unindicted coconspirator and Russian asset Donald Trump has appointed an ass-kissing sycophant as acting attorney general who is a grifter just like “Dear Leader.” Acting Attorney General Sat on Board of Company Accused of Bilking Customers: Matthew G. Whitaker, the acting attorney general, served on the advisory board of World Patent Marketing, which “bilked thousands of consumers out of millions of dollars” by promising inventors lucrative patent agreements, that a federal judge shut down last year and fined nearly $26 million after the government accused it of scamming customers.

When he wasn’t grifting, Whitaker was going on television acting as a Trump sycophant commentator attacking the Mueller investigation. Here’s what Trump’s acting AG Matthew Whitaker has said about the Mueller investigation.

And then there is his close relationship with a person of interest in the Russia investigation. Whitaker’s friendship with Trump aide reignites recusal debate: Whitaker, is a close friend of Trump’s 2016 election campaign co-chair, and a former government ethics chief said the friendship makes Whitaker unable to oversee impartially a politically charged investigation into the campaign, for which he should recuse himself.

But before we even get to a question of recusal, Neal K. Katyal, former acting solicitor general under President Barack Obama and a lawyer at Hogan Lovells in Washington, and Trump spokesperson Kellyanne Conway’s husband, George T. Conway III, a litigator at Wachtell, Lipton, Rosen & Katz in New York and a frequent Trump critic, explain at the New York Times that Trump’s Appointment of the Acting Attorney General Is Unconstitutional and illegal:

What now seems an eternity ago, 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 Trump picked up the argument, tweeting that “the Appointment of the Special Counsel is totally UNCONSTITUTIONAL!”

Professor Calabresi’s article was based on the Appointments Clause of the Constitution, Article II, Section 2, Clause 2. Under that provision, so-called 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 Mr. 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 Mr. Mueller reports to Rod Rosenstein, the deputy attorney general. So, Mr. Mueller is what is known as an inferior officer, not a principal one, and his appointment without Senate approval was valid.

But Professor Calabresi and Mr. 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 Mr. 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 Mr. Whitaker does, or tries to do, in that position is invalid.

Much of the commentary about Mr. Whitaker’s appointment has focused on all sorts of technical points about the Vacancies Reform Act and Justice Department succession statutes. But the flaw in the appointment of Mr. Whitaker, who was Mr. Sessions’s chief of staff at the Justice Department, runs much deeper. It 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 Mr. 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, Justice 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.

What goes for a mere lawyer at the N.L.R.B. goes in spades for the attorney general of the United States, the head of the Justice Department and one of the most important people in the federal government. It is one thing to appoint an acting underling, like an acting solicitor general, a post one of us held. But those officials are always supervised by higher-ups; in the case of the solicitor general, by the attorney general and deputy attorney general, both confirmed by the Senate.

Mr. 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.

We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design. Senate confirmation exists for a simple, and good, reason. Constitutionally, Matthew Whitaker is a nobody. His job as Mr. Sessions’s chief of staff did not require Senate confirmation. (Yes, he was confirmed as a federal prosecutor in Iowa, in 2004, but Mr. Trump can’t cut and paste that old, lapsed confirmation to today.) For the president to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document.

In times of crisis, interim appointments need to be made. Cabinet officials die, and wars and other tragic events occur. It is very difficult to see how the current situation comports with those situations. And even if it did, there are officials readily at hand, including the deputy attorney general and the solicitor general, who were nominated by Mr. Trump and confirmed by the Senate. Either could step in as acting attorney general, both constitutionally and statutorily.

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. That is why adherence to the requirements of the Appointments Clause is so important here, and always.

As we wrote last week, the Constitution is a bipartisan document, written for the ages to guard against wrongdoing by officials of any party. Mr. Whitaker’s installation makes a mockery of our Constitution and our founders’ ideals. As Justice Thomas’s opinion in the N.L.R.B. case reminds us, the Constitution’s framers “had lived under a form of government that permitted arbitrary governmental acts to go unchecked.” He added “they knew that liberty could be preserved only by ensuring that the powers of government would never be consolidated in one body.”

We must heed those words today.

While this unconstitutional and illegal act plays out over the coming days and  weeks as a result of a lame-duck Republican Congress which has entirely abdicated its constitutional responsibilities of oversight and serving as a check on an out-of-control executive who is seeking to destroy the independence of the Department of Justice, Richard Ben-Veniste, the chief of the Watergate cover-up task force of the special prosecutor’s office and a member of the 9/11 Commission, and George Frampton, the chief executive of the Partnership for Responsible Growth and an assistant special prosecutor on the cover-up task force, explain at the New York Times that Mueller Has a Way Around Trump and His Minions:

In a stunning move on the heels of the midterm election, President Trump has forced the resignation of Attorney General Jeff Sessions and appointed an outspoken critic of the Mueller investigation — Matthew Whitaker — as acting attorney general, shunting Deputy Attorney General Rod Rosenstein to the sidelines. This raises the specter of a fearful president attempting to muzzle Special Counsel Robert Mueller or hinder him from revealing whether his 18-month-long grand jury investigation has turned up evidence of criminality implicating Donald Trump or his immediate family.

But a 44-year-old “road map” from the Watergate prosecution shows a potential route for Mr. Mueller to send incriminating evidence directly to Congress. The road map was devised in 1974 by the Watergate special prosecutor, Leon Jaworski, with our assistance. We wrote the road map — actually a report — to be conveyed to Congress; it was called “Report and Recommendation” and served as a guide to a collection of grand jury evidence contained in a single document. That evidence included still-secret presidential tape recordings that had been acquired through grand jury subpoena — but which had been withheld from Congress by President Nixon.

The recent decision by Washington’s Federal District Court chief judge, Beryl Howell, to release the document from the National Archives provides a historic legal precedent that could be a vehicle for Mr. Mueller and the grand jury assisting him to share the fruits of their investigation into possible criminal conduct within the Trump presidential campaign and subsequent administration.

In all the discussion about Mr. Mueller’s options when he concludes his investigation, little attention has been paid to the potential role of the grand jury. Chief Judge Howell’s decision unsealing the Watergate road map brings new focus on the role the grand jury might play in the dynamics of the endgame. Although the grand jury is a powerful tool for federal prosecutors, it has historic and independent power and operates under the supervision of the federal judiciary. Following the Oct. 20, 1973, “Saturday Night Massacre” — in which President Nixon forced the Justice Department to fire the original special prosecutor, Archibald Cox — the Watergate grand jury played a critical role in forcing the president to back down, hand over the subpoenaed tapes and appoint a new special prosecutor.

Although Mr. Cox had been fired, his staff — duly appointed federal prosecutors — had not. The grand jury, as an arm of the judicial branch, could not be fired by the president. Indeed, Judge John Sirica of the United States District Court immediately summoned the grand juries (there were two) to his courtroom and exhorted them to continue to pursue their investigations and assured them that they could rely on the court to safeguard their rights and preserve the integrity of their proceedings.

In the face of Congress’s inability to obtain evidence that the grand jury well knew incriminated the president, we prepared the grand jury report to Judge Sirica and requested that he use his plenary authority to transmit that evidence to the House Judiciary Committee, which had already commenced a proceeding to consider Mr. Nixon’s impeachment. It was carefully written to avoid any interpretations or conclusions about what the evidence showed or what action the committee should take. The report contained a series of spare factual statements annotated with citations to relevant transcripts of tapes and grand jury testimony. Copies of those tapes and transcripts were included as attachments.

Judge Sirica was convinced that the materials contained in the report should be made available to the House Judiciary Committee. His decision was affirmed by the Court of Appeals for the District of Columbia Circuit. This evidence formed the gravamen of Article I (obstruction of justice) of the impeachment resolution adopted by the Committee.

Much note has been made of the fact that the Justice Department regulations under which Mr. Mueller was appointed actually require him to submit a report to the attorney general. Importantly, nothing in the department regulations prohibit Mr. Mueller’s Department of Justice superior, now Mr. Whitaker, from refusing to release the report.

What if Mr. Mueller concludes that the president has committed a crime? The question of whether a sitting president can be indicted remains a subject of vehement debate among scholars. But assuming that Mr. Mueller follows what many regard as “current Justice Department policy” based on several past internal legal opinions that an indictment is inappropriate, then the appropriate place for consideration of evidence that the president has committed crimes rests definitively and exclusively with Congress.

If Mr. Mueller has obtained such evidence, his responsibility and the correct operation of our system of government compel the conclusion that he and the grand jury can make that evidence available to Congress through a report transmitted by the court.

With the fox now guarding the henhouse, there is sufficient precedent for the grand jury and Special Counsel Mueller to seek the chief judge’s assistance in transmitting a properly fashioned report to Congress.





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2 responses to “Obstruction of justice in plain sight: appointment of Whitaker is unconstitutional and illegal

  1. This is disqualifying: “The FBI is conducting a criminal investigation of the Florida company accused of scamming millions from customers during the period that Matthew Whitaker, the acting U.S. attorney general, served as a paid advisory-board member.” FBI Is Investigating Florida Company Linked to Whitaker, https://www.wsj.com/articles/fbi-is-investigating-florida-company-where-whitaker-was-advisory-board-member-1541799564?mod=hp_lead_pos3

    As the Washington Post editorializes, There is no way this man should be running the Justice Department, https://www.washingtonpost.com/opinions/there-is-no-way-this-man-should-be-running-the-justice-department/2018/11/09/f4a2ee60-e45e-11e8-8f5f-a55347f48762_story.html?utm_term=.00dc616bc0bf

  2. John Yoo, a law professor at the University of California-Berkeley who helped the George W. Bush administration draft its expansive claims to executive power, agrees with Katyal and Conway:

    “The Constitution says that principal officers must go through appointment with the advice and consent of the Senate. In Morrison v. Olson, the Supreme Court made clear that the Attorney General is a principal officer. Therefore, Whittaker cannot serve as acting Attorney General despite the Vacancies Act (which does provide for him to be acting AG) — the statute is unconstitutional when applied in this way.”
    — John Yoo in an email

    FOX News’s Judge Andrew Napolitano says President Trump’s appointment of Matthew Whitaker as Acting Attorney General may be illegal. “Under the law, the person running the Department of Justice must have been approved by the United States Senate for some previous position. Even on an interim post” … Whitaker is ineligible to serve in his current post as the confirmation was not “for a leadership position in the Justice Department.” https://www.huffingtonpost.com/entry/matt-whitaker-donald-trump-fox-news-attorney-general_us_5be3b528e4b0dbe871a69269

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