Friday, November 09, 2018

Whitaker's Appointment is Despicable and Possibly Criminal, but is it Unconstitutional?

by Michael C. Dorf

Yesterday Neal Katyal and George Conway wrote an op-ed in the NY Times arguing that President Trump lacked the authority to name Matthew Whitaker Acting Attorney General. I'm not sure that's right. True, by forcing out Jeff Sessions as punishment for the one unambiguously honorable thing Sessions did--recusing himself, as required by law, from an investigation of the Trump campaign--Trump acted despicably. Depending on what Whitaker does now with respect to the Mueller investigation, Trump's appointment of Whitaker may also amount to obstruction of justice.

But was the appointment unconstitutional? As I shall explain, much as I'd like to agree with Katyal and Conway, their theory is problematic as offered. I will offer a friendly amendment to improve it a bit.

Let's start with the Vacancies Reform Act (VRA). It permits Trump to name Whitaker (or any other Justice Department officer or employee) to temporarily fill the AG role for up to 210 days, provided that the vacancy arose by the "resignation" of Sessions. Some commentators have suggested that Sessions should be treated as having been fired rather than as having resigned, because Sessions wrote in his resignation letter that he was resigning at the "request" of Trump. I don't find this suggestion very persuasive. Sessions could have refused to resign, thus forcing Trump to fire him. More generally, absent some evidence of coercion (e.g., "Beauregard, if you don't resign right now, Don Jr. and Eric will have to rough you up"), a bright-line rule that presumes formal resignations are actual resignations seems much more administrable than a standard that looks behind stated reasons for signs of pressure from above.

Even assuming Sessions resigned, however, it's not 100% clear that the VRA applies. As Marty Lederman notes, another statute, the AG Succession Act (AGSA) provides for the order of succession in case the office of AG is vacant and the Senate has not yet confirmed a new presidentially-nominated AG. Ordinarily, a more specific provision prevails over a more general one. Here that would be the AGSA. However, the current version of the VRA was enacted after the AGSA, so, especially in light of the legislative history, it's possible that the VRA was meant to supplement the AGSA. That, as Prof Lederman also notes, is the view that the Dep't of Justice took in 2007, and it's not completely crazy. After all, there is no clear contradiction between the two Acts.

So let's assume that Trump had the statutory authority to name Whitaker. Nonetheless, Katyal and Conway say, doing so was unconstitutional (and thus the VRA is unconstitutional as applied), because the AG is a "principal officer" of the United States, as that term is used in the case law to distinguish it from what Art. II, Sec. 2 calls "inferior officers." Such principal officers can only hold office if they have been nominated by the president and confirmed by the Senate (absent a recess appointment, which is not at issue here). Because Whitaker was not confirmed by the Senate, Katyal and Conway say, he cannot be named Acting AG.

Katyal and Conway thus build on a view endorsed by Justice Thomas last year, although they do not agree with the details of how Justice Thomas applied that view. They say that, whatever else counts as a principal officer, surely the AG does. I agree. So far so good.

But Katyal and Conway appear to stumble when they say that Trump could have named either the Deputy AG (Rod Rosenstein) or the Solicitor General (Noel Francisco), because--unlike Whitaker, who does not now occupy a position that required Senate confirmation--both Rosenstein and Francisco do occupy such positions. Katyal and Conway write that "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."

But why? Neither Rosenstein nor Francisco was confirmed as AG. By way of comparison, consider that Rick Perry, Ben Carson, and Betsy DeVos--none of whom is even a lawyer--were all also "nominated by Trump and confirmed by the Senate." The point of Senate confirmation is, as Katyal and Conway say, to "scrutiniz[e] whether" the nominee "has the character and ability to" perform the tasks that go with the job for which he has been nominated. As the examples of Perry, Carson, and DeVos illustrate, the Senate doesn't always fulfill its obligation very well, but each of these characters is even more grossly unqualified to be AG than to hold the offices they actually hold. Beyond any particular individuals, however, the core point remains: the Senate confirmation mechanism is office-specific. Otherwise it makes little sense.

Now it might be said, in reliance on Weiss v. US (a case involving military judges who were appointed military officers in accordance with the Appointments Clause but were not specifically appointed as judges), that so long as the duties of the office to which one was appointed are "germane" to the duties of the office one temporarily fills, there's no constitutional violation. However, that strikes me as a misreading of Weiss, which chiefly relied on the fact that when one is commissioned as a military officer, one can be "detailed" to perform various tasks, including that of military judge.

That, in turn, leads me to want to offer my friendly amendment to the Katyal/Conway hypothesis. The reason why Rosenstein or Francisco could fill in as AG but Whitaker cannot is not simply that Rosenstein and Francisco were confirmed by the Senate. After all, so were Perry, Carson, and DeVos. Nor is the reason that Rosenstein and Francisco hold offices that have similar duties to the AG. That would be true of just about any US Attorney; and yet we would not expect the Senate to apply anything like the level of scrutiny it applies to an AG nominee to a US Attorney. Rather, the key is that when the Senate confirmed Rosenstein and Francisco to their respective positions, the Senate understood (or should be presumed to have understood) that it was confirming them to positions from which, by statute (in particular the AGSA) they could end up moving up to AG in the event of vacancies.

Note, however, that my friendly amendment is itself subject to criticism. If the fact that one can move up to Acting AG from the position of DAG or SG means that the initial Senate confirmation for DAG or SG satisfies the Appointments Clause w/r/t the Acting AG position, then maybe I've proved too much. After all, by virtue of the VRA (in particular § 3345(a)(2)), the president can name any Senate-confirmed appointee to temporarily fill a vacancy, so we haven't distinguished Perry, Carson, or DeVos after all.

My imperfect solution to that problem is to say either that in this regard the VRA does not actually complement the AGSA or, more in keeping with the spirt of the Katyal/Conway argument, that as applied to the position of AG, § 3345(a)(2) would be unconstitutional if used to make Perry, Carson, or DeVos Acting AG. Maybe that's because the duties aren't sufficiently similar, per Weiss, which may be another way of saying that, regardless of the content of the VRA, there's no way that when the Senate confirmed Perry, Carson, and DeVos to their respective positions it was tacitly pre-confirming them to be acting AG as well.


Marty Lederman said...

I agree, Mike, that one way of thinking about having the DAG or SG or OLC AAG, etc., perform as Acting AG is that the prospect of such "acting" responsibilities is part of the functions of the office for which they were in fact confirmed, thereby satisfying the AC. (I think that's probably true of all the DOJ officials in the line of succession under 508 & regs. I'd also characterize that *as* a Weiss-ian "germaneness" test--i.e., "performing the AG's functions in the case of a vacancy is germane to the office of DAG"--but that's merely a technical or terminological quibble.) In these cases, then, the AC is *satisfied*-- there's PAS appointment to the office of, e.g., DAG.

But is there, in addition, yet another way of filling the AG "office" with someone else, per Eaton? Even Thomas appears to agree that there is, in his footnote 1, at least if the term isn't too long (he scoffed at three years). This would, in effect, be an implied *exception* to the requirement of PAS appointment for principal officers--an exception limited to truly "temporary" situations, and/or perhaps true cases of exigency--justified by the sort of pragmatic considerations mentioned in Eaton itself. Take, e.g., March 1848. AG Clifford resigned and there *were no* other DOJ officers, because there was no such thing as DOJ yet -- and, for that matter, no succession statute (both of which came in 1870). So Polk assigns Secretary of the Navy John Mason (who had previously served as AG) to exercise the AG functions while the Senate considers the next appointment. That "acting" assignment lasted 105 days. If Polk didn't do so, no one would have been able to exercise the AG functions during that period. That's constitutional under Eaton, I think, even though AG is a "principal" office and even though its functions aren't an expected part of the job of Navy Secretary. Agree?

Marty Lederman said...

If that's right, however--i.e., that there's an implied Eaton "temporary exigency" exception, even for principal offices--then perhaps in the case of principal offices the POTUS *must* designate a PAS officer from the same agency, on a Weiss-ian "germaneness" or Dorfian theory, *if and when* such a person is available (as Rosenstein, Francisco, etc., are here, and as Peter Keisler was in the 2007 case). On this view, the POTUS can only choose someone outside the agency, or someone like Whitaker from within but who isn't holding a PAS office, if that is truly *necessary,* as in the 1848 Mason case. (And perhaps, in such a case, the POTUS must also promptly nominate someone for the permanent spot.)

In sum:

1. Thomas and Katyal/Conway are right in saying that it's a principal office, no matter the length of appointment. Whelan's OLC opinion is thus wrong in saying that it's "inferior" because time-limited (something Eaton did not say).

2. In case of a vacancy, one solution is for POTUS to appoint someone who *has* been Senate-confirmed to another office, but *only* if temporary performance of AG functions is reasonably viewed as part of the functions of that other office, which in the case of DOJ should be understood to cover those officers within the 508 line of succession (e.g., DAG/SG/Keisler AAG). I call this a variant of the Shoemaker/Weiss "germaneness" test; but however it's best characterized, I think Mike agrees in substance. This does *not* cover a PAS officer from outside the Department.

3. However, if--and perhaps *only* if--no such assignment of a PAS officer from within the agency is available to the POTUS, the Eaton rationale provides an implied *exception* to the requirement of PAS appointment for principal offices, for cases of true exigency. In such cases, the POTUS can appoint one of the other sorts of people listed in the VRA, i.e., an established DOJ employee such as Whitaker or a PAS-approved officer from outside DOJ. Possibly, this exception is limited to what's *truly* necessary to address the exigency, and therefore it has to be "temporary," or at least it requires a prompt nomination, such that any extended delay is the Senate's own responsibility. But, arguably, this exception can't be invoked where the POTUS can instead tap a PAS officer from within the Department under 2, above.

Marty Lederman said...

Mea culpa: Eaton *did* hold, as the 2003 OLC opinion concluded, that what would otherwise be a principal office is not principal--is "inferior"--if it merely involves "performance of the duty of the superior for a limited time, and under special and temporary conditions," *even though during that period the officer is not supervised and removable by a principal officer.* This would appear to be inconsistent with what we've come to think of as the Edmond test for distinguishing inferior from principal offices--which ordinarily requires at a minimum supervision by an officer other than the POTUS--but in Edmond itself, Scalia favorably cited Eaton ("Among the offices that we have found to be inferior are that of . . . a vice consul charged temporarily with the duties of the consul"), in support of the broader acknowledgement that "Our cases have not set forth an exclusive criterion for distinguishing between principal and inferior officers for Appointments Clause purposes."

This calls into question Katyal/Conway's assumption that a temporary "acting" AG is a principal officer. But it does tee up the question (as does footnote 1 of Thomas's SW Gen'l opinion) about the limits of the Eaton "for a limited time, and under special and temporary conditions" category for "inferior" officers unsupervised by principal officers.

Michael C. Dorf said...

Marty: Many thanks for these very deeply informed comments. You have extrapolated from my views correctly on all counts. Let me add two points:

1) I do think that there's some tension between Edmond and the modern principal/inferior doctrine more generally, on one hand, and the holding of Eaton you describe in your third point. (Indeed, a student Note in 1998 argued with some force that Edmond was not even consistent on the PO/IO line with Morrison v. Olson, decided just a decade earlier: .) That said, I think that, as you say, Eaton should remain informative about what can occur in true emergencies.

2) I would also note how this whole line of inquiry exposes what seems to have been a blind spot on the part of the framers. The Constitution does in fact contain a mechanism for filling a vacancy with a new principal officer in cases of emergency: The president can make a recess appointment. That option seems unlikely to arise again in a post-NLRB v. Noel Canning world, where pro-forma sessions can prevent recess appointments where the inability to obtain swift Senate confirmation results from a disagreement between the Senate and the president. Putting that aside, it seems that the framers assumed that if the Senate was in session, then any vacancy could be filled through Senate confirmation sufficiently swiftly to avert the need for an acting PO. Why would they assume that? Presumably because of two further assumptions: (a) No political parties; and (b) the president would nominate people (okay, white men) of sufficient stature and prominence that the Senate could confirm very quickly, without the need for extensive vetting and hearings. Given the mismatch between the framers' assumptions and how US history played out beginning in the 1796 election, it's not surprising that any effort to accommodate the need for acting POs will have some difficulty fitting the constitutional text exactly.

David Ricardo said...

My questions would be (1) who would or could claim standng to challenge the appointment and (2) what is the liklihood that a court would reject any and all challenges based on standing, leaving the Kafaesque situation of a court saying 'yes, the appointment is illegal, constitutionally and otherwise but the courts have no ability to rule against it'.

rwmurph said...

Extremely interesting and informative. Seems to me that a fundamental problem that the law has not figured out how to accommodate or discuss, probably because it hasn’t had to, is presidential bad faith. The system needs a way to deal with temporary gaps at the principal level, but there is no exigency here that the President did not create for corrupt reasons. Of course, scrutiny of presidential motives is a terrible can of worms, but it seems like that lies at the core of the *real* problem here.

egarber said...

I have a general question, but I think Mike covers it in his point (2) above:

Are laws to handle short-term vacancies outside of recess appointments constitutional under the necessary and proper clause? The constitution doesn't even cover a non-recess scenario where say, the AG dies, correct? But back then, I guess the framers would have thought of it the way we see swearing in ceremonies - just a ministerial thing the senate could quickly do to maintain cohesion.

Shag from Brookline said...

The opening paragraph of Mike's post closes with this:

"Depending on what Whitaker does now with respect to the Mueller investigation, Trump's appointment of Whitaker may also amount to obstruction of justice."

While this is not followed up in the post (or comments) as perhaps a contingent side issue, Whitaker has a paper trail that combined with Trump's twitter trail might serve as a possible obstruction of justice. Trump is already into 2020 campaigning. Soon others will begin campaigns, mostly Democrats, but even Republicans and third parties. And add to this the House under Democrats' control, with oversight hearings. So this may become a current issue as events unfold. Might Trump want Whitaker to serve 210 days as Actin AG? That may fit with 2020 campaigning underway. Is there a potential constitutional crisis if Whitaker impairs the Special Counsel's investigation?

JohnAScanlan said...

Assuming that the Katyal-Conway Appointments Clause argument has merit, what effect would Whitaker's past confirmation by the Senate have? He was appointed and confirmed as U.S. Attorney for the Southern District of Iowa in 2004, and resigned in 2009 when President Obama announced Nicholas A. Klinefeldt as his successor.

Michael C. Dorf said...

So many good questions and comments here. I regret that I'm too busy with other work to answer them. Feel free to answer each other!!

Joe said...

The op-ed noted:

"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.)"

Prof. Dorf's amendment would help there -- his lapsed office would not put him in the line of succession. Once he resigned, his office lapsed. Plus, years passed since then with more things to examine for advise and consent purposes. If he was in office all that time, there would be congressional oversight. Not so here. So, he is no longer an officer and requires a new confirmation at any rate.

I am not sure about the chances on standing here but do know the Supreme Court (and other courts) have been concerned about the proper approach to appointment of offices in the last few years, so it is not just a theoretical matter. As to who would have standing, that might for one thing touch about the Mueller investigation -- if there is anything he has to sign off on, e.g., a defendant could have standing.

I do wonder how much the AG himself does for that to arise. Anyway, I was wary of the argument raised, but the constitutional argument sounds strong. There is a strong reason to only allow someone already confirmed, particularly in the line of succession. The open-ended alternative has many problems especially with Trump. And, there is no emergency here.

David Ricardo said...

Agreed that a defendant would have standing, but the problem there is that Whitaker would likely be ruling in favor of a defendant, so there is no basis for the defendant to challenge Whitaker's appointment. One wonders if Mueller has standing? Would the Justice Department be taking the Justice Department to court?

JohnAScanlan said...

Concerning jurisdiction: The Justice Department states that:
"The principal duties of the Attorney General are to:
"Represent the United States in legal matters.
"Supervise and direct the administration and operation of the offices, boards, divisions, and bureaus that comprise the Department.
"Furnish advice and opinions, formal and informal, on legal matters to the President and the Cabinet and to the heads of the executive departments and agencies of the government, as provided by law.
"Make recommendations to the President concerning appointments to federal judicial positions and to positions within the Department, including U.S. Attorneys and U.S. Marshals.
"Represent or supervise the representation of the United States Government in the Supreme Court of the United States and all other courts, foreign and domestic, in which the United States is a party or has an interest as may be deemed appropriate.
"Perform or supervise the performance of other duties required by statute or Executive Order.'

In the performance of most of these duties, the AG can adversely affect the rights or interests of non-federal actors, including private persons, corporations, and state or local governmental bodies. Therefore, he (or she) can be--and frequently is-- named as an adverse party in many types of legal action. Such actions can include claims that he acted beyond his constitutionally or statutorily conferred powers.

Joe said...

To add to the last comment, ML discussed standing to sue here too:

"I assume that anyone who suffers an “injury in fact” by virtue of something Whitaker does would have Article III standing to challenge his appointment in court, at least for purposes of enjoining that action. And as I noted above, almost all of DOJ’s actions are taken pursuant to authorities Congress has assigned to the Attorney General. For example, all litigation in which the United States, an agency, or officer thereof is a party or is interested “is reserved to officers of the Department of Justice, under the direction of the Attorney General.” 28 U.S.C. § 516. Indeed, if recollection serves, the AG himself technically signs many DOJ legal pleadings, such as briefs. The AG also issues regulations, approves certain seeking certain criminal sentences, and much else. Anyone adversely affected by any of these actions might challenge the legality of Whitaker’s appointment."

Shag from Brookline said...

Regarding Mike "less pessimistic" [than Neil's] post planned for Monday, a lot of positive things have happened in the past few days regarding midterm results. And Maureen Dowd's NYTimes column today "Who’s the Real American Psycho?" hopefully will be read by Mike, and Neil as well, as a reminder that Democrats have to recognize that it is not just Trump, but the Republicans going back several decades that Democrats have to address. Dowd points to the Bush/Cheney Administration, and especially Cheney, for their two terms with two tax cuts, two wars, and the Bush/Cheney 2007/8 Great Recession. While some from the Bush/Cheney Administration - Dowd names names - are Never-Trumpers, their past roles cannot be forgotten by Democrats. To the extent that Trump is a symptom of Republicans over the past several decades, just getting rid of the symptom is not enough, as the Never-Trumpers may revert to their regular Republicanism.

Today's The New Yorker Radio Hour on PBS focused on the connection of the Bush/Cheney Great Recession to Global Warming.. It was pointed out that Al Gore in 2000 had campaigned on Global Warming, which was poo-pooed by George W in the campaign. The point was made that Republicans deal with the short range-next election issues. Obama did take longterm steps on Global Warming during his two terms. But Trump quickly in his first two years has taken steps to undo Obama's steps. Recent reports suggest a much shorter timetable to address Global Warming. Obamacare has survived with the House to be in Democratic control. Democrats have to address both short- and longterm issues for 2020 foresight. The mess in the Middle East resulted from the failures of Bush/Cheney, especially with the invasion of Iraq.

So maybe Democrats and their supporters should be more optimistic.

Sorry with the off-topic.

Eric Rasmusen said...

Nice analysis. People have been carelessly saying that mere Senate confirmation for some office in government is enough to avoid the constitutional problem, when it obviously isn't, the Perry problem. What I conclude from the Dorf analysis is that either:

(1) The Vacancies Act is unconstitutional, and no acting appointment can be made, so whoever is next in the the line of succession will run the agency until a full appointment is made and confirmed (Rosenstein, and nobody else, unless Rosenstein is fired by the President).

(2) The Vacancies Act is constitutional, and the President can appoint anybody confirmed for anything by the Senate(e.g., an ambassador) or anybody who has worked at Justice for over 90 days at more than GS-15 pay, or the AG's first assistant.

Note that if (1) is true, then it is also true for new Administrations, and the new President must let the old political appointees run the agency or fire them all, in which case 28 U.S. Code § 508 - Vacancies runs out of applicability and presumably, without any statute, succession runs to the senior civil servant or some other civil servant in the agency whom the President appoints, or the President runs the agency directly.