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OffbeatTrump’s Appointment of the Acting Attorney General Is Unconstitutional

22:30  08 november  2018
22:30  08 november  2018 Source:   nytimes.com

Kellyanne Conway says her husband's criticism of Whitaker appointment 'not relevant'

Kellyanne Conway says her husband's criticism of Whitaker appointment 'not relevant' White House counselor Kellyanne Conway said Sunday that her husband's views on President Donald Trump's appointment of acting Attorney General Matthew Whitaker are "not relevant," just days after he called the move unconstitutional in a New York Times op-ed. Asked if she agrees with the arguments written by her husband, George Conway, and Neal Katyal, a former acting solicitor general in the Obama administration, Conway told ABC's George Stephanopoulos on "This Week," "No, I don't. But it's also not relevant." "People disagree on the Constitution," she said.

WASHINGTON — President Trump declared on Monday that the appointment of the special counsel in the Russia investigation was “totally UNCONSTITUTIONAL !” and asserted that he had the power to pardon himself

Attorney General Jeff Sessions recused himself from the Russia inquiry after it was revealed that he had met And so the decision about whether to appoint a special counsel fell to the “ acting attorney general ,” in this As we said, Trump now claims the appointment of Mueller was unconstitutional .

Trump’s Appointment of the Acting Attorney General Is Unconstitutional© Charlie Neibergall/Associated Press Matthew Whitaker, named acting attorney general on Wednesday after the forced resignation of Jeff Sessions, was Mr. Sessions's chief of staff.

Editor’s note: The opinions in this article are the author’s, as published by our content partner, and do not necessarily represent the views of MSN or Microsoft.

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!”

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George Conway: Trump replacing Sessions with Whitaker is illegal Conway made the argument in an op-ed with top Democratic lawyer Neal Katyal.

says the appointment of Robert S . Mueller III as special counsel was unconstitutional . If Mueller is among the latter, his appointment was invalid because he was neither nominated by the president — he was appointed by Deputy Attorney General Rod J. Rosenstein — nor confirmed by the Senate.

President Donald Trump has said Mueller’ s appointment is unconstitutional . The president, who might not be fully acquainted with the pertinent Supreme Court case law, says the appointment of Robert Mueller as special counsel was 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.

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New acting attorney general wanted limits on Mueller’s Trump probe The new acting attorney general doesn’t think much of Robert Mueller’s alleged look into President Trump’s finances. Matthew Whitaker, who on Wednesday was named by Trump as acting attorney general after the resignation of Jeff Sessions, spelled out his views in a CNN opinion piece authored just a month before he joined the Justice Department as Session’s chief of staff.

President Trump is now seizing on arguments, advanced by conservative scholars, that the appointment of Special Counsel Robert Mueller is unconstitutional . Moreover, his boss, Deputy Attorney General Rod Rosenstein, treats him as a principal officer — that is, Mueller is mostly free to

President Trump fired Acting Attorney General Sally Yates on Monday after she refused to enforce his controversial Muslim ban. Read that again, slowly: It took Donald Trump eleven days to replicate the basic facts of the most significant constitutional crisis in American history.

But Professor Calabresi and the president were right about the core principle. A principal officer must be confirmed by the Senate. And that has a very, very significant consequence today.

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It means that President 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.

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“The appointment of the Special Counsel is totally UNCONSTITUTIONAL !” Trump ’ s message on Monday suggests that his attorneys may expand the field of legal confrontation with Mueller is also potentially acting beyond the already vague scope. Lawyers for former Trump campaign manager

Is Trump Correct That Mueller’ s Appointment Was Unconstitutional ? [The president] 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

If you don’t believe us, then take it from Supreme Court Justice Clarence Thomas, whom President 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.

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President Trump declared on June 4 that the “ appointment of the Special Counsel is totally UNCONSTITUTIONAL !” Attorney General Janet Reno and Eric Holder asked me to convene a working group to think about the act and whether it should lapse, and if so, what should replace it.

Matthew Whitaker sat on advisory board of World Patent Marketing, which was ordered to pay m settlement in May.

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 President 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 President Trump and confirmed by the Senate. Either could step in as acting attorney general, both constitutionally and statutorily.

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WASHINGTON — The president, who might not be fully acquainted with the pertinent Supreme Court case law, says the appointment of Robert Mueller as special counsel was unconstitutional . The president' s opinion, because it is his, is prima facie evidence for the opposite conclusion.

Trump had asked her to stay on as acting attorney general pending the confirmation of his pick for attorney general , Sen. The letter, the defiance of the president' s wishes that it reflected and the subsequent firing created the most public split between the Justice Department and a White House

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 such a position of grave responsibility. The public is entitled to that assurance, especially since Mr. Whitaker’s only supervisor is President 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.

Neal K. Katyal (@neal_katyal) was an acting solicitor general under President Barack Obama and is a lawyer at Hogan Lovells in Washington. George T. Conway III (@gtconway3d) is a litigator at Wachtell, Lipton, Rosen & Katz in New York.

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Chuck Schumer questions Trump's authority to appoint acting Attorney General Whitaker.

Chuck Schumer sent a letter to President Trump questioning whether the appointment was constitutional.

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