The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On December 23, Attorney General Barr will step down. At that time, Deputy Attorney General Jeff Rosen will step up as Acting Attorney General. What happens if Rosen steps down? The answer is complicated.
In March 2017, President Trump issued Executive Order 13787, titled Providing an Order of Succession Within the Department of Justice. If the Deputy Attorney General is "unable to perform the functions and duties of the office of Attorney General," then the Associate Attorney General will serve as Acting Attorney General. However, DOJ does not have a confirmed Associate Attorney General. Currently, Claire McCusker Murray is the Principal Deputy Associate. She is acting as the Associate Attorney General. Murray, who clerked for Judge Kavanaugh and Justice Alito, was not Senate confirmed.
Under the Vacancies Reform Act, can a person who was not Senate confirmed act as Attorney General? Under the Constitution, can a person who was not Senate confirmed act as Attorney General? I don't know that either question was fully settled by the Whitaker litigation.
Section 2 of the Executive Order at once forecloses these questions, yet leaves them open:
(a) No individual who is serving in an office listed in section 1 of this order in an acting capacity, by virtue of so serving, shall act as Attorney General pursuant to this order.
(b) No individual listed in section 1 shall act as Attorney General unless that individual is otherwise eligible to so serve under the Federal Vacancies Reform Act of 1998.
(c) Notwithstanding the provisions of this order, the President retains discretion, to the extent permitted by law, to depart from this order in designating an acting Attorney General.
Murray is not Senate confirmed. I am not sure if she is eligible to serve as Attorney General under the FVRA. And neither of these questions matter because Trump can deviate in light of Paragraph (c). But Murray's actions would certainly be subject to legal challenge.
There is also one other wrinkle. Last week, Politico reported that President Trump selected Adam Candeub as Deputy Associate Attorney General. The article isn't clear if Candeub will replace Murray, or if Candeub will be Murray's deputy. That is, the deputy to the deputy. Candeub is a law professor at Michigan State, who has held several positions in the Trump Administration. Like Murray, Candeub is not Senate-confirmed.
Let's assume that Murray, or Candeub, cannot serve as Acting Attorney General. Or, perhaps she resigns. Who is next in line? The executive order lists three positions:
- U.S. Attorney for the Eastern District of Virginia (G. Zachary Terwilliger)
- U.S. Attorney for the Eastern District of North Carolina (Robert J. Higdon)
- U.S. Attorney for the Northern District of Texas (Erin Nealy Cox)
Buckle up everyone. One or more of these people may be acting AG sometime before January 20.
Please email me if I've made any errors. Trying to keep track of the never-ending stream of acting positions in the Trump Administration is painful.
Update: Professor Anne Joseph O'Connell wrote an important article on Acting Officers. She pointed out that DOJ policy bars "double actings." (See p. 679). I think that means Murry is out, unless that policy is changed.