Robert Mueller

Who Is Lawfully the Attorney General Right Now?

Why first principles suggest that Matthew Whitaker's acting appointment is invalid, but precedent and practice might suggest the opposite.


Last week, after demanding the resignation of Attorney General Sessions, President Trump named Matthew Whitaker, Sessions's chief of staff, to be the "Acting" Attorney General. This designation is consistent with a federal statute, the Federal Vacancies Reform Act, but it raises a constitutional question. The Constitution requires the Attorney General to be confirmed by the Senate; Whitaker was not confirmed by the Senate; does the same requirement apply to the "Acting" Attorney General?

Neal Katyal and George Conway have an op-ed in the New York Times arguing that the appointment is unconstitutional. Steve Vladeck has an op-ed in the same paper arguing the contrary. More information and sources are available from Marty Lederman and Andrew Hyman and Michael Ramsey.

Some thoughts:

1. If you asked me to consider this purely as a matter of text and structure, I doubt that the President can name an "Acting" Attorney General without Senate confirmation (or a recess appointment—which is unavailable here). On any given day, the office of Attorney General is a "principal" office, so it should require a principal appointment, one with Senate confirmation, to occupy that office even for a day.

2. That said, I would not go as far as Justice Thomas in his concurrence in NLRB v. Southwest General, who suggested that naming an existing officer to a new acting position always requires a new appointment. Instead, I would say that if somebody already holds a Senate-confirmed office, and if they are covered by the Vacancies Reform Act or another similar statute, they can be named acting AG.

3. Why? As a formal matter, an existing statute that authorizes, say, the Secretary of Defense to be a candidate for "acting" Attorney General, we can think of that as actually redefining the duties of the Secretary of Defense. The Secretary of Defense's job is to "be the secretary of the Defense, and also serve as Attorney General [or Treasury Secretary or…] on an as-needed basis." So long as the statute was in place at the time of the initial appointment, and so long as the appointee has met the constitutional requirements for both jobs, Congress can define the offices this way.

And I think the rule is consistent with what Alexander Hamilton said was the purpose of the Appointments Clause, namely to have the Senate provide a "check upon a spirit of favoritism in the President, and …. prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity." Once the Senate has served as a filter against family connection and personal attachment for the first appointment, that makes the acting appointment less risky.

4. All of that said, I have serious doubts about this position. In United States v. Eaton, 169 U.S. 331 (1898), the Supreme Court disagreed with what I've written above, holding that a non-confirmed officer could temporarily exercise the powers of a principal officer without constitutional problem:

Because the subordinate officer is charged with the performance of the duty of the superior for a limited time, and under special and temporary conditions, he is not thereby transformed into the superior and permanent official. To so hold would render void any and every delegation of power to an inferior to perform under any circumstances or exigency the duties of a superior officer, and the discharge of administrative duties would be seriously hindered.

5. More importantly than a single Supreme Court case, it seems that the elected branches have also disagreed with this restrictive view for a very long time. In 1792, the Second Congress enacted a statute, 1 Stat. 279, 281, providing:

That in the case of the death, absence from the seat of Government, or sickness of the Secretary of State, Secretary of the Treasury, or Secretary of the War department, or of any officer of the said departments whose appointment is not in the head thereof . . . it shall be lawful for the President of the United States, in case he shall think it necessary, to authorize any person or persons at his discretion to perform the duties of the said respective offices until a successor be appointed, or until such absence or inability by sickness shall cease.

In other words, the President could name acting cabinet secretaries with no apparent restriction. If one thinks, as James Madison did, that longstanding practice can "liquidate" the meaning of constitutional provisions, statutes like this (and its successors) may be enough to tip the balance in favor of these acting appointments.

6. Are there any limiting principles? Eaton and the longstanding practice both contradict a categorical rule against non-confirmed acting appointments to principal offices. But perhaps there is a middle position. Walter Dellinger stresses on Twitter that Eaton concerned "'special and temporary conditions' … The Eaton situation arose half way around the world in Siam!" A very recent student note by Garrett West has the intriguing suggestion that such acting appointments cannot exceed the length of an equivalent recess appointment—a year or two, depending on who you ask. And I have not studied the actual practice of acting principal officer appointments, or the constitutional reasoning accompanying them, to see if any coherent principles emerge.

7. But suppose that my first instincts were right, and the precedent and practice are not, and Whitaker's acting appointment is unlawful. Do we have an Attorney General? It looks like we do, since a separate statute, 28 U.S.C. 508, provides that "In case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office." That would be Rod Rosenstein. It may well be that a valid appointment under the Federal Vacancies Reform Act can displace Section 508, but if Whitaker's appointment is invalid, it seems that Rosenstein is actually the acting AG.

Presumably it will not be very long until somebody subject to Whitaker's authority finds a way to bring this dispute to court.

NEXT: Lawsuit Challenging New Jersey Ban on Distributing "Digital Instructions" for 3D Printing of Guns

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. If the Federal Vacancies Reform Act was passed by the Senate, and Whitaker’s appointment was according to that, then the Senate is, in fact, giving their consent. No problemo. The constitution does not specify how the Senate must give consent.

    1. That doesn’t work. Lets say the Senate passed a law saying all future presidential nominees are hereby confirmed. That’s almost certainly unconstitutional as an attempt to strip a constitutional power from future Senates.

      1. Well, its always up to the courts to decide which crap Congress throws up is actually going to stick.

        1. That’s too reductive. Not all decisions are fully principled, but that doesn’t mean legal principles are irrelevant.

          1. I’m going to go out on a limb here and posit that a measure passed 20 years ago by a democratic Congress can reasonably be relied upon until its invalidated by the courts without endangering democracy as we know it.

            Your mileage may differ, but then again you are on record as saying the president can ignore the law if Congress doesn’t enact laws that agree with his preference. So that wouldn’t surprise me much.

            1. Constitutional waivers aren’t the same as an ordinary law. They aren’t valid because you can’t bind future Congresses to them.

              1. But you can’t bind future Congresses to ordinary laws, either. So that distinction doesn’t work. If a law duly passed by Congress and signed by the President remains in effect until repealed by a future Congress, why should this be any different – besides the fact that you’d really like it to be treated differently.

                1. Ordinary laws don’t bind Congress, they bind the American People.

            2. If you cant bind future congresses, than what about congress expanding the Presidents power over immigration? A declaration of war is only good for until the next congress is seated?

      2. There is no such thing as “future Senates.” There is only “the Senate.” The advice and consent clause is pretty simple. The Senate just has to give advice and consent to Presidents’ nominees. I see no reason that could not be a blanket consent. It wouldn’t be unconstitutional just because it allows the Senate to act stupidly. Anyway, the Senate in the future would have full power to repeal it and re-establish new consent procedures.

        “Confirmation” hearings is a bit misleading. They should be called consent hearings.

        1. It’s more misleading than you think, since the “hearings” are more about the committee members making speeches for the cameras than about hearing anything the nominee or other witnesses have to say.

          The constitution doesn’t require committee hearings for Senate consent to a nominee, it does require a vote by the full Senate.

          1. Individually you are saying?

            Is that in English common law or the Federalist papers or something?

        2. Anyway, the Senate in the future would have full power to repeal it and re-establish new consent procedures.

          But the current Senate can’t unilaterally revoke the “consent” that was expressed in the Vacancies Reform Act: indeed, that’s kind of the point of why people are uncertain about the Whitaker situation in the first place.

          1. Not after the fact, no. They *should* have been able to do it on November 6. Senate consent is not subject to House ratification or presidential veto. So not withstanding it was originally given as part of a law, they should have been able to withdraw consent unilaterally. In theory.

  2. Like the invisible Russkies in Trump’s closet this is another lame mountain out of a molehill. Whittaker’s confirmation is a foregone conclusion so no this is not Saturday Night Massacre 2 that the Dems are pretending it is.

    1. Whittaker’s confirmation is a foregone conclusion…

      OK then. Let’s have a vote just to check.

      I’d love to see Republicans have to vote on this slimy crook.

      1. For temporary attorney general when both Congress and the supreme court have already approved it?

        Trump rules can only go so far

        1. Maybe, Kazinski, but I’m just challenging AA’s claim that Whitaker would easily be confirmed.

          I suspect that there are enough non-Trump toadies in the GOP to deny this slimebag confirmation. And if there aren’t let the Republicans own it.

          Do you like the idea of a crook being AG, a crook who thinks states can nullify federal laws, and that only Christians should be judges?

          1. Well nobody is claiming Whittaker doesn’t need confirmation to be attorney general if he is appointed by Trump. But for now he’s just a fill in, and it conforms to both law and precedent.

            And I will also stipulate, anyone Trump names needs to be specifically confirmed to AG, no matter how many other confirmations they’ve gone thru.

    2. “Whittaker’s confirmation is a foregone conclusion”

      He is not getting the permanent appointment.

      Early betting favorite is Christie. We will see.

      1. Wow, I guess Trump didn’t humiliate Christie enough during the campaign and the transition, now he’s going to let Congress reject him too.

        I can’t imagine an anti-gun drug warrior getting thru Congress in this day and age. He’s going to have have at least some constituency, and a 43% NRA rating is going to cause at least a couple of key senators to have some serious doubts, but I can’t imagine those doubts providing him with any countervailing democratic support.

        1. Agreed. And Trump’s ditching of Christie during the transition clearly showed that Trump didn’t trust him. So that makes Christie a non starter long before we get to the question of whether he would be confirmed.

          Moreover Christie as a member of the Trump campaign would face exactly the same recusal pressures as Sessions. So he’s got three strikes. Not trusted, not confirmable, and a prime candidate for recusal.

    3. Doesn’t the statute that allows an ‘acting’ cabinet head, specify the appoint is only good for 210 days and the acting person can not be nominated to the position he temporarily holds. I’m asking, I read it on the internet in a law blog comments.

  3. what about Whittaker’s Senate confirmation process for US Attorney ?
    Does confirmation have an expiration date?

    1. That someone was once confirmed as something by the Senate does not mean that person was confirmed as Attorney General.

      I have a license to drive a car from the DMV, that doesn’t mean I have the license to drive a semi truck.

      1. Draw a stick-figure family in the back windshield, then you can call it a minivan.

        Totally legal.*

        *Probably not.

      2. well, it’s what Trump is using as a legal argument

      3. Actually, by law, that somebody was once confirmed as something by the Senate means that they’re qualified to be temporarily appointed to a different position. There’s a law to that effect.

        1. I had a quick glance at the FVRA and I am sceptcal of Brett’s point.

          Route 1 is to be the deputy to the officer who has disappeared
          Route 2 is to be in an office that has required Senate consent
          Route 3 is to be a sufficiently senior officer or employee in the same department

          Whitaker doesn’t qualify for 1 (that’d be Rosenstein)
          Nor does he qualify for 2 because although he used to be in a Senate confirmed office, he isn’t now
          So they’re aiming for 3, where he is in the right department and he’s senior enough

    2. If this ends up being the standard, it opens up a whole can of worms. Let’s say you’re nominated to be in charge of HUD. Now the Senate will have to say, “We need 75 hours of testimony from you?” Wait. What?!? It used to be about 4-6 hours of testimony for this position. Why a 1200% increase? Answer: Because now we’ll have to spend 10 hours questioning you about foreign policy (in case you are confirmed and the prez later decides to switch you to Sec. of State). And another 10 hours, to question you about water rights and the Takings Clause (in case the prez switches you to Interior). And another 20 hours about crim law, antitrust, etc (in case you get switched to Atty Genreal). And so on.

      The reason why confirmation hearings are (relatively!) streamlined is because questions generally (and quite sensibly) related to your expertise in regards to the position you have been nominated. But if there’s a real chance that you’ll end up leading a completely different department, then the Senate will have to make sure you’re qualified to lead each and every possible office, right?

      Seems unworkable to me.

      1. Congress in its legislative capacity has to authorize these appointments, so Congress, including the Senate, can consider how broad they want Presidential authority to be when it comes to appointment of inferior officers – they can preserve the Senate’s role if they want or trust the President, or impose safeguards for the President to abide by.

        1. Sounds like a case of the Framers trusting Congress to work out the details of how many inferior officers the Pres can appoint and under what conditions.

        2. Unless Whittaker reports to someone other than the President, he’s not an inferior officer, no matter what the title says.

  4. “Who Is Lawfully the Attorney General Right Now?”

    The ghost of Charles Bonaparte.

    For one thing, he founded the FBI, so they’ll be willing to follow his lead from beyond the grave.

    For another thing, he’s related to Napoleon Bonaparte.

    And he’s Republican, too.

    1. Plus unlike several other Bonapartes, he wasn’t deposed by force, so his claim to office is even better than his relatives’ claims.

  5. OK, let’s run this up the flagpole, as an attempt to find a principle which fits the actual practice of the government since 1792:

    Maybe an acting cabinet officer can be considered as one of the “inferior officers” whose appointment Congress can vest in “the President alone.”

    Before you knock the idea, find some other way to figure out how the 1792 act is constitutional. And if Congress got it wrong in 1792, consider the possibility that those of us who were not there directly to experience the “original public meaning” of the Constitution might get it wrong, too.

    1. Yeah, the Eaton case seems to agree – consuls have to be confirmed by the Senate, but a vice-consul, even when temporarily exercising consular powers, can be appointed by the President alone because taking consular powers on such a temporary basis doesn’t change his “inferior” status. Ha ha.

      1. “Yes, Mom, constitutionally I’m still an inferior officer.

        “Yes, Mom, I know that my brother the doctor runs his own practice.

        “Sorry, Mom, the line between here and Siam seems to be breaking up.”

        1. Funniest comment I’ve seen all month!

  6. 1792 is certainly a well-established law, but I’d love to know the actual history of how often people have been filling in for cabinet-level positions in an acting capacity.

  7. The real question that should be asked here is why Trump would feel a need to appoint anyone other than the Deputy Attorney General to run the DoJ on an interim basis. The only answer I can come up with is that Trump knows that Rosenstein wouldn’t be on board with any attempts Trump made to obstruct justice by firing Mueller.

    1. Or maybe he just thinks that Rosenstein has already demonstrated that he’s a lousy employee.

      Mueller is Trump’s employee. Trump is legally entitled to fire him. I order to “obstruct justice”, Trump would have to corruptly fire him.

      So you have to prove Trump has a bad motive to make the charge stick. He’s perfectly entitled to fire Mueller if he knows he’s innocent, and thinks Mueller is just wasting resources.

    2. The reason is political. Rosenstein and Mueller are stones in Trump’s shoe. But firing either of them would be “nucular” so the best way to deal with them is to neuter them. The firing of Sessions and replacement has produced relatively little fallout given that the news cycle has been dominated by the midterms, the Florida shenanigans, the California fires and the Acosta clownshow. Helped too by the fact that the Mueller Russia thing pretty much disappeared for a month or two.

      I would never be one to accuse Trump of subtlety, but the subtle thing would be to undermine Rosenstein and Mueller rather than to carpet bomb them. First move – Trump ordered the declassification of stuff that the Rs think will embarrass the Ds and the Obama DoJ (and Rosenstein). Rosenstein blocked the release presumably by warning Trump that the release could be argued to be obstruction. Whitaker can remove the block. If the Rs are right that the release will embarrass Trump’s enemies, that’s some useful undermining.

      So I expect Whittaker to do small invisible, perfectly legal things, that will damage Trump’s enemies within the DoJ. And I expect a storm of anti-Whitaker leaking and faux-leaking from the Resistance by way of a countermove.

  8. President Obama illegally claiming recess appointments when the Senate was NOT in recess; may be instructive here. Were any of those decisions made by the illegal appointees overturned by the Supreme Court? Bonus question: Did the fraudulent appointees have to disgorge their pay? I know, it was just the NLRB v. Canning but still……..l-canning/

  9. “or a recess appointment — which is unavailable here”

    Does anybody have more info on why a recess appointment is unavailable? The senate’s calendar says it’s been out of session for more than 10 days, which is a sufficient length under Canning. Have they been conducting pro-forma sessions or something?

    1. To answer my own question, yes, they’ve been conducting pro-forma sessions.

      1. “Does anybody have more info on why a recess appointment is unavailable?”

        US Constitution Article 1, Section 5 Clause 4

        Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

        The Senate cannot officially go into recess without the consent of the House of Representatives.

        1. I’m sure there’s some old, expired House resolution that they can just amend to read that the recess is consented to. Seems to work for originating revenue bills.

  10. It actually won’t be very long until Pam Bondi or Chris Christie is AG. There aren’t enough MooCowskis and Collins’ to stop President Trump from appointing whoever he wants come January. The Red Wave in the Senate wiped out the power that the RINOs had in the Senate.

    Good luck.

    1. I can’t believe Bigoted Right-Wing Mini-Me took precious time away from suppressing votes (targeting black citizens, educated citizens, successful citizens) for Republicans in Arizona, Georgia, California, and Florida to favor us with his figurative fellatio of President Trump.

    2. The Red Wave in the Senate

      This is some good spin.

      I agree that the votes are there for almost whomever Trump picks, but there will be a political price to pay confirming a toady or someone with a strongly partisan past to that position. So we may have an Acting for quite a while as the Senate does their usual craven nonfeasance to avoid making any waves.

      1. What political price did Obama have to pay for Eric Holder ?

        Seems to me like he got a pretty good deal.

        1. That you think Obama’s relationship with his DoJ is at all comparable to Trump’s is kind of amazing.

          1. !!!???

            What have I said that gives you that impression ? Obama’s DoJ was fully supportive of Obama and covered his back; it never dreamed of mounting a serious investigation of his government (or his chosen successor.) Trump’s DoJ ( a jocular expression for the current DoJ) has been the focal point of the Resistance, which has been trying to bring him down since….before he was even elected !

            The current DoJ is a continuation of the Obama DoJ, a highly politicised Dem stronghold, in which Mr Whitaker is an isolated enemy agent. The relationship the DoJ had with Obama and the relationship it has with Trump couldn’t possibly be more different.

            1. There is zero evidence the DoJ has been anything but professional as Trump has ranted at them on Twitter.

              How did Obama make the DoJ slavishly loyal to him, under your scenario?

              1. By appointing Eric Holder as Attorney-General, and then filling up all the career slots with committed progressives. Doh !

          2. That you think Obama’s relationship with his DoJ is at all comparable to Trump’s is kind of amazing.

            I would agree. The Lynch DoJ apparently worked closely with the Obama White House to illegally surveil the Trump campaign, transition, and early Administration. With Trump, the DoJ is working against the Administration, not closely with it.

            1. Yeah, Trump even admitted that didn’t happen, Bruce.

  11. “Who Is Lawfully the Attorney General Right Now?”

    I would say it’s the Cyclops’ famous adversary, Nobody.

    There’s an inferior officer exercising the powers of the AG on an interim basis, but the AG office itself is vacant.

    1. This seems the right answer to me.

      There’s an interesting piece by Marty Lederman (pre midterms) musing on the possibility that Trump would replace Rosenstein with Whitaker, and getting into the VRA and the constitutional questions. And he makes the point, somewhat elliptically, that there’s an interesting tension with the case currently going through a DC court in which the constitutionality of Mueller’s appointment is being challenged on the officer / inferior officer point.

      If y’all want Whitaker to be unconstitutional, then be careful about baby Mueller and his bathwater.

  12. The nomination [2nd] paragraph of Article II, Section 2 does not mention “principal” officers, that is only in the first paragraph dealing with written opinions.

    Section 2 only requires confirmation for ambassadors, ministers, counsels, judges of the S/C. It vests power in Congress on all other offices to either require confirmation or not. The Vacancy Act complies.

    1. I don’t think this is right. “Officers of the United States” need to be confirmed. But “inferior officers” can be appointed by the President. And “principal officers” can be required to give an opinion in writing. So you can have a department with say six officers, and ninety four inferior officers. The six need to be confirmed and the ninety four don’t. And of the six officers, only the principal one (ie the head honcho) can have a written opinion demanded of him.

      1. Section 2 says Congress can vest appointment in the “president alone”. Nothing says that other than ambassadors, ministers, counsels, judges of the S/C, Congress could not eliminate all confirmations if it wanted to do so.

        1. 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, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

          I assume you think “such inferior officers” is a reference back to the previously mentioned “all other officers of the United States, whose appointments are not herein otherwise provided for.” ie “such inferior officers” means “any of those previously mentioned inferior officers”

          I don’t think that’s what it means – I think the “such” just means “whichever” and I think the case law establishes that there are some “officers of the United States…etc ” who are not inferior.

          1. My understanding is that there are two types of Officers of the United States: Principal and Inferior. Principal officers require Senate confirmation, while inferior officers do not. Sessions was a principal officer. Rosenstein and Whittaker are principal officers. Mueller is an inferior officer currently operating under the ostensible supervision of Rosenstein. (If Rosenstein is forced to recuse himself, then Mueller’s supervision would probably revert to the acting AG).

  13. Will Baude, thanks for the link. I neglected to point out that the Take Care Clause is very relevant here too. For example, the following Attorney General’s opinion says the president has appointment power not just under Art. 2 Sec. 2, but additionally has interim appointment power under the Take Care Clause:

    I tend to think that the Take Care Clause is a legitimate originalist source of power for the Whitaker appointment, together with the Necessary and Proper Clause (along with the fact that the Recess Appointment Clause could have easily limited recess appointment to people who are already in Senate-confirmed positions, but did not).

    1. The necessary and proper clause doesn’t do the President any good, that’s a legislative clause.

      1. The Constitution provides that, “The executive Power shall be vested in a President . . .” and “he shall take Care that the Laws be faithfully executed.”

        The Necessary and Proper Clause says, “The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” The President falls within “any Department or Officer thereof.”

        1. Andrew, what Brett says is right there: “The Congress shall have Power.. .”
          Everything else is about Congress’ powers.

          Stop making stuff up.

          1. Bernard11, I didn’t making anything up, I quoted the Constitution. Both the president and Congress have relevant power here. Congress exercised its power by enacting the Federal Vacancies Reform Act (FVRA), which authorizes the Whitaker appointment.

            1. I had originally taken you to be talking nonsense as per Brett and bernard, but I see what you’re saying now. There’s little doubt that Whitaker’s appointment complies with the FVRA, the question is whether that Act is constitutional.

              And the Necessary and Proper Clause might be argued to provide some support for the FVRA against a complaint of unconstitutionality. I think it’s an argument. Not a good one, but an argument.

              No, let me be more generous. It’s way stronger than Prof Baude’s point 3 (which strikes me as highly fanciful) without which there’s a danger that Justice Thomas has to be believed.

  14. “As of now, I am in control here, in the White House.” ? Al Haig, March 30, 1981.

  15. Or maybe he just thinks that Rosenstein has already demonstrated that he’s a lousy employee.

    There are a number of things that Trump could fault Rosenstein for, but maybe the most egregious is him suggesting that he wiretap Trump when the two of them next met, in order to remove him from office. Rosenstein claims that he was being sarcastic. Fine. The problem was that he was a party to an attempt at a coup, and did not report it to his bosses (Sessions, and, most importantly here, Trump). Failing to report the attempted coup shows a significant lack of loyalty to the person who ultimately appointed him, and is the source of all of the power that he wields as DAG (Article II starts out, in the first paragraph, identifying the President as the wielder/owner of all Executive power. There is nothing in the Constitution that gives the DAG any power whatsoever outside that delegated to him by the President). And, I would argue that failure for a principal officer (like Rosenstein) to loyalty to the source of all Executive power would violate his oath of office, esp when the subject of the discussion was a coup against the duly elected President, and, thus, the Constitution. In any case, Trump no doubt does not trust Rosenstein, and in order to execute his Constitutional office, a President needs to be able to trust his direct reports, which is what Rosenstein would be if he became acting AG.

    1. Some of the other reasons why Trump likely doesn’t trust Rosensteain:
      – he approved, for the DoJ, the fourth FISA warrant for Carter Page, that would allow the FBI, etc. to electronically surveil parts of the Trump Administration
      – he appointed Mueller as special counsel/prosecutor, apparently without the criminal predicate required by DoJ rules and regulations. Instead, the original appointment appears to have been based on a counterintelligence rational, which is counter to the purpose and letter of the regulation.
      – he then expanded Mueller’s mandate, but has refused to divulge the expanded mandate to Congress, or, apparently anyone above him in the Trump Administration.
      – He has refused to recuse himself, despite the significant apparent appearance of impropriety
      – He appears to have approved redactions in documents provided to Congress for the purpose of avoiding embarrassment of present and past employees of the DoJ and FBI, instead of for any national security reasons.

      I could go on, but my major point here is that Trump has good reason not to trust Rosenstein, and I suspect would fire him, before letting him run the DoJ.

  16. Since the constitution is not a suicide pact and historical precedent matters, the idea that every office has to be kept vacant and whole departments are powerless to act until the Senate confirms a replacement seems a losing argument. What is a deputy but someone who has power to act in the principal’s absence?

    On the other hand, the argument that office of Attorney general has a specific succession statute whic trumps the general fill-a-vacancy-by-temporary-appointment one seems a more solid argument with greater potential to be a winner. There’s certainly an argument to be made why a specific statute trumps a general one as a basic maxim of statutory interpretation.

    Ome could also easily see why law enforcement is a special and specially dangerous governmental power, so that Congress might want to limit those able to be charge of it to those they specifically approve for the purpose. A specific succession statute providing that the deputy attorney general becomes the acting attorney general in the event of a vacancy preserves Congress’ advice-and-consent authority. It lets the Senate scrutinize nominees for deputy attorney general knowing the succession rule, and be correspondingly careful about approval. If anyone approved by Congress for anything could become Acting Attorney General, Congress would de facto have much less say in the matter.

  17. Ome could also easily see why law enforcement is a special and specially dangerous governmental power, so that Congress might want to limit those able to be charge of it to those they specifically approve for the purpose.

    Indeed. I believe I read that the original Senate version of the FVRA had a carve out for Attorney General, consistent with the previous general vacancies law. But, in the legislative sausage making, the carve out got carved out. So if you’re a believer in legislative history (which I am not) the carve out of the carve out is significant.

Please to post comments