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Trump’s Appointment of the Acting Attorney General Is Unconstitutional


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Interesting.

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Trump’s Appointment of the Acting Attorney General Is Unconstitutional

By NEAL K. KATYAL and GEORGE T. CONWAY III

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 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.

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.

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.

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.

https://www.msn.com/en-us/news/opinion/trump’s-appointment-of-the-acting-attorney-general-is-unconstitutional/ar-BBPu93C

 

 

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2 minutes ago, Mileage Psycho said:

Interesting.

 

Defies one of the explicit checks and balances in the constitution?  The Republicans will be furious at Trump for this. No way they will let this stand. 

Just kidding they never question dear leader. 

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All of a sudden the left is concerned with the constitution .

are we sure in time this guy won't be run through the prosses of conformation ? it is not like you can just call everyone back to wa for a vote that will pass any way . not like the dems have a say in it right now any way 

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1 minute ago, steve from amherst said:

Especially with ole Ruth knocking on heavens door.

I know I got a bit excited when I heard she took a tumbel just knowing the overwhelming anxiety it filled so many cunts with 

  • Haha 1
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18 minutes ago, Snake said:

The New York Times found a guy who thinks this is unconstitutional.

The hell you say.....

I was flabbergasted!!

...and he’s wrong too.

6 minutes ago, Mileage Psycho said:

It's really kind of too bad that Trump lost the House of Representatives Tuesday night, that hurt. 

We’ll see but based on what I’ve seen from your party so far, it’s going to cost them the 2020.  And besides, dude.....it’s the fucking house.  It’s bicker and whine central.  So little gets done there anymore from either party. 

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2 minutes ago, Ez ryder said:

All of a sudden the left is concerned with the constitution .

are we sure in time this guy won't be run through the prosses of conformation ? it is not like you can just call everyone back to wa for a vote that will pass any way . not like the dems have a say in it right now any way 

George Conway, a librul? 

Just some friendly advice; You should look into a subject a little deeper before commenting.

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George Thomas Conway III is an American attorney and a graduate of Harvard College and Yale Law School. He clerked for a judge on the U.S. Court of Appeals for the Second Circuit before becoming a partner at Wachtell, Lipton, Rosen & Katz.

Conway argued the 2010 case Morrison v. National Australia Bank before the U.S. Supreme Court; winning with a unanimous decision authored by Antonin Scalia. Conway was on the short list of candidates considered by President Donald Trump for United States Solicitor General prior to the nomination in March 2017 of Noel Francisco for that position. He was subsequently considered for Assistant Attorney General for the Civil Division at the U.S. Department of Justice.George Thomas Conway III is an American attorney and a graduate of Harvard College and Yale Law School. He clerked for a judge on the U.S. Court of Appeals for the Second Circuit before becoming a partner at Wachtell, Lipton, Rosen & Katz.

Conway graduated from Marlborough High School in Massachusetts. In 1984, Conway graduated from Harvard College with an A.B. degree magna cum laude in Biochemistry. In 1987, he obtained a J.D. degree from Yale Law School, where he was an editor of the Yale Law Journal, and president of the school's chapter of the Federalist Society.

In 1987 and 1988, he served as a law clerk to Judge Ralph K. Winter, Jr. of the U.S. Court of Appeals for the Second Circuit. In September 1988, Conway joined the law firm of Wachtell, Lipton, Rosen & Katz, and in January 1994 was named a partner.[3] His practice focuses on litigation involving securities, mergers and acquisitions, contracts, and antitrust.[3]

Conway was one of the lawyers who represented Paula Jones in her lawsuit against U.S. President Bill Clinton.[4][5] During the representation of Jones, he worked closely with Ann Coulter and Matt Drudge.[6] On March 29, 2010, Conway argued the securities case of Morrison v. National Australia Bank before the U.S. Supreme Court, and won with an 8–0 vote with an opinion by Justice Antonin Scalia.[7]

Conway had been considered a candidate for some U.S. Department of Justice posts. In January 2017, Conway was considered for the post of Solicitor General along with Gregory G. Katsas, prior to the post going to Noel Francisco.[8][9][10] On March 17, 2017, Conway was reported to be the nominee as Assistant Attorney General to head the Civil Division at the U.S. Department of Justice.[11][12][13] However, on June 2, 2017, he announced that he declined to pursue the post.[14][15]

https://en.wikipedia.org/wiki/George_T._Conway_III

 

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2 minutes ago, Zambroski said:

I was flabbergasted!!

...and he’s wrong too.

We’ll see but based on what I’ve seen from your party so far, it’s going to cost them the 2020.  And besides, dude.....it’s the fucking house.  It’s bicker and whine central.  So little gets done there anymore from either party. 

Yea man, it's just the House :thumbsup:

 

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no revkev you and soon to bark slinger all up in arms about a appointment conformation that has not happened.  yet some one walks then you fill the job if a conformation hearing is needed it gets done when everyone gets back from there home states 

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2 minutes ago, Mileage Psycho said:

Yea man, it's just the House :thumbsup:

 

Congratulations on that!  Now, what’s the plan from here?  I mean, after Pelosi is voted back in of course?  Load up the clown bazooka and fire at will?

I bet you people make a spectacle out of yourselves and still can’t come up with a plan, message, candidate for 2020.  I mean, let’s be honest, to hope for leadership is way out of the question.

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4 minutes ago, Zambroski said:

Congratulations on that!  Now, what’s the plan from here?  I mean, after Pelosi is voted back in of course?  Load up the clown bazooka and fire at will?

I bet you people make a spectacle out of yourselves and still can’t come up with a plan, message, candidate for 2020.  I mean, let’s be honest, to hope for leadership is way out of the question.

Investigations, investigations, and more investigations. It’s for the people you know. Liberal butthurt will assure they win the next election. I’ll guarantee it. 👊

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9 minutes ago, Zambroski said:

Congratulations on that!  Now, what’s the plan from here?  I mean, after Pelosi is voted back in of course?  Load up the clown bazooka and fire at will?

I bet you people make a spectacle out of yourselves and still can’t come up with a plan, message, candidate for 2020.  I mean, let’s be honest, to hope for leadership is way out of the question.

Fuck leadership. Scorched earth on everything trump I say. 

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3 minutes ago, Edmo said:

Investigations, investigations, and more investigations. It’s for the people you know. Liberal butthurt will assure they win the next election. I’ll guarantee it. 👊

Oh, we’ll see.  I’m hoping not but after Obama wan in 2012, I knew America was pussification declared with the weak, meek, emotional imbeciles.  There’s some good to that though...people with even small amounts of exceptional thoughts and skills can succeed easily.  

 

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1 minute ago, ActionfigureJoe said:

Fuck leadership. Scorched earth on everything trump I say. 

Whew!  Another happy Friday for you with nothing planned but self treatment again?  Do you know any good mental health people?

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42 minutes ago, Mileage Psycho said:

George Conway, just another guy.

You never heard of hm until this article.  You know as well as I do, there will be many learned legal scholars both sides of this argument.

12 minutes ago, ActionfigureJoe said:

Fuck leadership. Scorched earth on everything trump I say. 

Your side will lose that fight.

Edited by DriftBusta
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45 minutes ago, Mileage Psycho said:

It's really kind of too bad that Trump lost the House of Representatives Tuesday night, that hurt. 

It is... But thankfully congress has nothing to do with confirming appointments. :bc:

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2 minutes ago, JEFF said:

It is... But thankfully congress has nothing to do with confirming appointments. :bc:

All the real heavy lifting is Senate where the Dems lost ground.  That’s why the on air Libs are sad...but are hiding it behind a “WE WON SOMETHING!!!” spiel for their wee lambs.

Here’s how this works now: Executive Order signed, opposition party sues, Fed courts decide.  Senate appoints federal court justices.  Party that controls the Senate...and federal judgs appointments will win out.

Dems don’t like it?  Well....I know who they can “Thank”.  Imbeciles.

75229DB7-C3EF-4DBB-BFAC-8AAC48409961.jpeg

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13 minutes ago, DriftBusta said:

You never heard of hm until this article.  You know as well as I do, there will be many learned legal scholars both sides of this argument.

Your side will lose that fight.

anyone paying attention to real news, knows who conway is. this isn't the first time he's voiced bad opinions of trump. one of the few conservatives with some balls.

 

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1 minute ago, Snoslinger said:

anyone paying attention to real news, knows who conway is. this isn't the first time he's voiced bad opinions of trump. one of the few conservatives with some balls.

 

Just save it.  You convince no one.  Your Schtick of telling everyone how dumb they are or accusing them of being afraid to voice their real opinions is beyond tired and stale.

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3 minutes ago, Snoslinger said:

anyone paying attention to real news, knows who conway is. this isn't the first time he's voiced bad opinions of trump. one of the few conservatives with some balls.

 

Yes we do. He is right too.

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