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.