President Donald Trump appointed Matthew Whitaker as acting attorney general last week, despite the fact that he cannot legally hold the office. While the president could fix his mistake with any lesser official and in any normal time, the attorney general is no lesser official and this is no normal time. Whitaker takes office during a time of extreme constitutional conflict involving investigations of the president, claims of abuse of law-enforcement and national-security powers, and combat between the executive and legislative branches. In order to prevent a breakdown of federal law enforcement, the White House should hurry to select a permanent attorney general before any more damage is done.
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Trump critics should not find joy in such a result. While a constitutionally handicapped attorney general remains in office, it is not only the special-counsel investigation that he cannot supervise. Every action of the Justice Department might fall before challenges to Whitaker’s appointment. That could render vulnerable not just the high matters of state, such as the investigation into the Trump campaign, but the regular enforcement of federal law by FBI agents and prosecutors across the nation, every day. Liberals no less than conservatives should oppose a hiatus in the execution of federal law. The only way to cure it is for the president to quickly nominate an attorney general from the deep pool of qualified candidates and for the Senate to speedily confirm him or her so that our officials can get back to the business of carrying out the nation’s laws.