Trump’s Appointment of the Acting Attorney General Is Unconstitutional
The president is evading the requirement to seek the Senate’s advice and consent for the nation’s chief law enforcement officer and the person who will oversee the Mueller investigation.
A principal officer must be confirmed by the Senate. And that has a very, very significant consequence today.
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.