Above the Law
Attorney General Jeff Sessions, at the request of the President of the United States, resigned from his office on Wednesday. The phrase, “…serve at the pleasure of the President,” applies to Cabinet positions (called principal officers in the Constitution) as well as other positions in the Executive Branch. Like it or not, since the impeachment of Andrew Johnson in 1869 over this issue, the President can hire and fire.
In Article II of the Constitution, the process of appointing and confirming the Cabinet level positions is established:
…he 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…
Officers, and particularly the principal officers of the Cabinet, require confirmation by the US Senate, the “advice and consent” process. We know this: we just went through the Kavanaugh Supreme Court nomination.
But if a cabinet member leaves, there is a void that needs to be filled. Should the Senate be in recess, the President can make a “recess” appointment to the position, not subject to Senate confirmation, for as long as two years. This is how the current National Security Advisor, John Bolton, was appointed Ambassador to the United Nations during the George W Bush administration. Bush avoided what would have likely been a failed Senate confirmation by putting Bolton in the UN during a Congressional recess.
Technically, the Congress is not in session this election week. This might allow for a “recess” appointment.
But that’s not what the Trump Administration has done. The President has appointed Matt Whitaker, the former Chief of Staff to Attorney General Jeff Sessions as “Acting” Attorney General, not calling it a recess appointment. Without getting into the qualifications of Mr. Whitaker, a key point to be made is that the Chief of Staff position at the Department of Justice (like the Chief of Staff at the White House) is not a Senate confirmed position.
To try to clarify this process, in 1998 the Congress passed a “succession” process law, called the Federal Vacancies Reform Act of 1998. This law established a process for replacing high-ranking executive department officials, and was clarified after the 9-11 attack, when it seemed possible that whole departments could lose their leadership.
In the Act the normal process established would be for the “first assistant” to take over if the “principal” leaves. In the case of the Department of Justice today, that would be Deputy Attorney General Rod Rosenstein, who was confirmed for his position by the Senate.
But the Trump Administration wants to end or restrain the Mueller Investigation, and putting Rosenstein in charge of the Department wouldn’t change anything. Rosenstein, due to Sessions’ recusal from the Mueller probe, has already been in charge of the probe and not to the President’s liking. However, the President under the law, does have the legal right to pass over the “first assistant.” The second section of the act allows for:
notwithstanding paragraph (1), the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity subject to the time limitations
The standard legal interpretation of this section, is that the President could choose ANY candidate who is Senate confirmed to take the job. The most recent example of this was when Director of the Office of Management and Budget, Mick Mulvaney, was placed in charge of the Consumer and Finance Protection Bureau after the resignation of Jim Cordrey. Mulvaney has proceeded to hamper the Bureau’s protective actions, but as he was a Senate confirmed (for OMB) officer, he got the job.
The appointment of Matt Whitaker as “Acting Attorney General” may be an act to slow or stop the Mueller investigation, but, hard to imagine, there is an even more important legal question. By reading of the law, Mr. Whitaker, NOT Senate confirmed, is not eligible to lead the Department of Justice.
The White House has embraced a minority interpretation of the Vacancies Act in order to pursue their political agenda. When it all goes to Court, it is likely that the Whitaker appointment is not allowed by law: it is in fact illegal. The problem is, will Whitaker’s current presence achieve the White House goal; ending the Mueller Investigation before the Courts can reach a legal conclusion? Among all the rest, that’s the grave Constitutional issue the nation faces today.
