The naming of Matthew Whitaker as acting head of the Department of Justice, following the forced resignation of Attorney General Jeff Sessions, has kicked off a mini‐debate between legal scholars over the propriety of his appointment. On Thursday, Neal Katyal and George Conway argued in The New York Times that Whitaker’s elevation ran afoul of the Constitution’s Appointments Clause, which requires that the president appoint “principal officers” of the United States, such as the Attorney General, only with the “advice and consent” of the Senate. John Yoo, a conservative legal scholar who served at DOJ under the Bush Administration, told Axios he agreed, and that the Federal Vacancies Reform Act, which purports to authorize the appointment of unconfirmed interim officers to fill vacancies, was unconstitutional as applied to such “principal” offices. Supreme Court Justice Clarence Thomas expressed a similar view in an opinion just last year. On the other side, we have Steve Vladeck, a law professor at the University of Texas, who notes that the Supreme Court blessed temporary appointments without confirmation back in 1898, in United States v. Eaton.
I’m not sufficiently steeped in the history or jurisprudence of the appointments clause to have a strong view either way on the legality of Whitaker’s elevation, but it does at least seem to run contrary to the spirit and intention of the Appointments Clause as articulated by Alexander Hamilton in Federalist 76, which gives the following rationale for requiring Senate confirmation for the highest posts in the executive branch:
To what purpose then require the co‐operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.
It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entire branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.
The elevation of Whitaker to the role of acting attorney general seems as precise an instance as one could imagine of the scenario the Framers hoped to deter. It is, after all, no secret why President Trump has been dissatisfied with Sessions: He has frequently made clear that he was infuriated by Sessions’ recusal (quite clearly required by DOJ rules) from overseeing the investigation into Russian election tampering—which has already seen legal penalties imposed on several of the president’s allies—and his insufficient enthusiasm for pursuing the president’s political adversaries. Whitaker, formerly Sessions’ chief of staff, seems certain to be more accommodating. He took that job only a year ago, after making a successful play to get noticed by the administration via editorials and television appearances in which he attacked Special Counsel Robert Mueller’s investigation, and asserted that he would have indicted Hillary Clinton over her private e‐mail server, despite the consensus of DOJ attorneys that there was no sound basis for prosecution. Though he did serve a stint as U.S. Attorney during the George W. Bush administration, Whitaker had spent recent years running a nonprofit that produced partisan attack ads targeting Democrats. Charitably put, his resume is a bit thin for the nation’s top law enforcement job, even in an “acting” capacity: His chief qualification for the post is being “personally allied” to Trump. He might, under present circumstances, nevertheless muster the votes for confirmation in the Senate, but the confirmation process itself would doubtless be fraught, providing an opportunity for pointed questions about whether he’d signaled to the White House his eagerness to shut down investigations like Mueller, or pursue prosecutions of the president’s foes. It seems quite plausible, in other words, that the Appointments Clause would have functioned as intended to deter the nomination of someone like Whitaker to head the Justice Department if he had to go through confirmation.
In the Federal Vacancies Reform Act, the White House has seemingly found a mechanism for, in effect, hacking the Appointments Clause: Get a loyalist hired in a subordinate role to a Senate‐confirmed “principal officer,” create a vacancy by forcing that officer to resign, and then promote the loyalist to the top job, circumventing the Senate for at least seven months. Moreover, the seven‐month clock is extended for the period during which the nomination of a permanent replacement is pending, and restarts if that nomination fails to win the Senate’s consent. In theory, at least, that means Whitaker’s “temporary” leadership of DOJ could last for the remainder of Trump’s term, provided the Senate finds Trump’s nominees to replace him even less acceptable. Given that Trump has been open about his desire to replace Sessions with a more “loyal” attorney general for more than a year, it’s even conceivable that the White House anticipated his eventual elevation back when he first joined the Justice Department.
It’s anyone’s guess whether, in light of Eaton, the courts will balk at this circumvention of the Senate’s role in providing “advice and consent,” but if they don’t, the White House has drawn a convenient roadmap for circumventing a constitutional safeguard that seems ripe for further exploitation.