OffbeatGeorge Conway: Trump replacing Sessions with Whitaker is illegal
Who is Matthew Whitaker, the new acting attorney general?
President Trump announced Wednesday that Matthew Whitaker will replace Jeff Sessions at the Justice Department
President Trump broke the law when he appointed Matthew Whitaker to replace Attorney General Jeff Sessions on Wednesday, lawyers Neal Katyal and George Conway argue in a New York Times op-ed Thursday.
The problem, they say, is that Whitaker was not confirmed by the Senate. They argue that that violates the Constitution’s Appointments Clause, which they say requires all “principal officers” of the government to be Senate-confirmed.
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Indeed, it was very strange that Trump bypassed the next in line for the post, Deputy Attorney General Rod Rosenstein, and slotted in Whitaker instead. Rosenstein had been confirmed by the Senate for the deputy job.
But Whitaker was serving as Sessions’s chief of staff, which is not a Senate-confirmed post. Before that, he’d been out of government for eight years. That makes his appointment as the acting head of a Cabinet agency highly unusual, at the very least — and unconstitutional according to Katyal and Conway.
“It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid,” they write.
The argument may seem unsurprising coming from Katyal, who’s a Democrat and was President Obama’s solicitor general. But the fact that George Conway helped write the piece will certainly raise eyebrows, since he is of course the husband of top White House staffer Kellyanne Conway.
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George Conway’s frequent public criticisms of Trump and his administration have beenmuch noted, but here he is outright calling a major Trump appointment illegal, on an issue for which the stakes for the president and his family are enormously high.
Whitaker’s appointment spurred fears that Trump was installing a loyalist to take control of and perhaps crush special counsel Robert Mueller’s Russia investigation. And this new argument could be the opening volley in some eventual court battle over Whitaker’s authority.
Separately, Georgetown law professor Marty Lederman wrote a rundown of legal issues surrounding Whitaker’s appointment, and he categorized this issue less definitively as a “possible” constitutional problem. There’s little precedent for a situation like this, Lederman wrote, so “it’s technically an open question.”
Supreme Court challenge filed to Whitaker appointment.
A prominent Washington lawyer is leading an effort to lure the Supreme Court into the dispute over the appointment of Matthew Whitaker as the new U.S. acting attorney general. Lawyer Thomas Goldstein says the high court should rule quickly that President Donald Trump's appointment of Whitaker to temporarily lead the Justice Department is illegal. Goldstein was part of a legal team that is challenging Whitaker's appointment Friday in a pending Supreme Court case dealing with gun rights. The filing asks the court to name Deputy Attorney General Rod Rosenstein as a party in the case, instead of Whitaker.
PBS NewsHour full episode, November 7, 2018
Wednesday on the NewsHour, Jeff Sessions is fired from his role as attorney general. We examine what that means for the future of the special counsel's ...