Thursday, 15 Nov 2018

No one is surprised that Jeff Sessions has come out. But is the appointment of his replacement unconstitutional?

Attorney General Jeff Sessions spoke in Portland, Maine on July 13. (Robert F. Bukaty / AP)

That President Trump finally ousted Jeff Sessions as Attorney General in the aftermath of the mid-term elections was not a surprise. In anger at the Sessions decision to refrain from overseeing the investigation of the special prosecutor Robert S. Mueller III on Russia's interference in the 2016 campaign, Trump had frequently criticized what he called the "Department of Justice". Justice". He did not care about Sessions' mandate "SHAMEFUL!" and even (at least according to Bob Woodward, although Trump denied it) called his AG a "mental retardation. . . Southern mute.

Trump's choice to act as Acting Attorney General, Matthew G. Whitaker, immediately sparked a political fire. It was not surprising either. Whitaker, who served as chief of staff of the Sessions, frequently and publicly attacked the Mueller probe and the courts. He also chaired the Sam Clovis campaign for the Iowa treasurer, before Clovis co-chaired the 2016 Trump campaign and testified before the Mueller grand jury.

As a result, Democratic Senators, Ethics groups and Attorneys General of the States also ask Whitaker to recuse himself for not overseeing the Mueller investigation. State Attorneys General, for example, told Whitaker that, according to his earlier comments, "a reasonable person could question your impartiality in this matter". Some GOP legislators have also taken a stand with Senator Susan Collins (R-Maine), who believes that "Mueller must be allowed to complete his work without interference – no matter who AG is."

Yet, even though Whitaker hinted that he had no intention of recusing himself (yet another non-shocking), startling news was received. In an editorial published Thursday in the New York Times, Neal K. Katyal and George T. Conway III, jurists specializing in constitutional law, said that the appointment of Whitaker was not only imprudent, but also unconstitutional.

The legal argumentation is based on the Federal Vacancy Reform Act 1998 (FVRA), which defines who can take up acting duties and the duration of the resignation of a senior government official. (It is less clear how this applies when a person is fired – so it is important that the sessions have resigned, even under duress.)

The Federal Vacancy Reform Act proposes three ways to replace a Cabinet official

Basically, the FVRA offers three options. First, the "first assistant" of the agent can intervene. At the Ministry of Justice, it would be Deputy Attorney General Rod J. Rosenstein, whom many believe is already in Trump's line of sight. You will remember, Rosenstein would have proposed to use the 25th Amendment to remove Trump from office.

Secondly, the chair may choose someone else for the position, provided that person currently holds a position confirmed by the Senate. This is how Mick Mulvaney, confirmed by the Senate in 2017 as the Director of the Office of Management and Budget, can assume the duties of Acting Chief of the Office of Consumer Financial Protection without further review of the Senate.

Third, the President may choose someone who is not confirmed by the Senate, provided that it is a senior paid official at least at GS-15 level the pay scale of the federal public service (approximately $ 135,000 in Washington). Normally, this would mean a career government employee, not a politician, but not always.

Trump chose Door # 3, naming Whitaker, whose only confirmation by the Senate dates back to 2004, when he became an American lawyer. He left this job in 2009; the Chief of Staff position does not need confirmation. However, he meets the salary threshold and therefore allows Whitaker to sit on the FVRA for 210 days.

But these two scholars argue that the FVRA itself is unconstitutional – and quote Justice Clarence Thomas

But according to Katyal and Conway, the problem persists: the FVRA itself overrides the constitutional provision that all "senior officers" receive confirmation from the Senate. The Attorney General, overseen only by the President, is certainly a senior officer. And so, the case, they say, is open and closed:

We can not tolerate such an escape from the very explicit and textual conception of the Constitution. … For the President to install Mr. Whitaker as a law enforcement officer, he must betray the entire structure of our governing document.

To reinforce it, they turn to a notable ally: Supreme Court Justice Clarence Thomas. In 2017, Thomas signed a court ruling on FVRA, but drafted a concordant opinion going much further.

"The appointment of senior officials under the FVRA," concluded Thomas, "raises serious constitutional concerns because the appointment clause prohibits the president from appointing senior officials without the notice and consent of the Senate" . empty formality. "

Politically, it would be relatively easy for the Trump White House to reject an argument from Katyal alone; he worked for Al Gore, Barack Obama and on behalf of Guantanamo Bay detainees. But Conway's pedigree is quite different. Although he recently became a public critic of Trump in the 1990s, Conway contributed to the Paula Jones affair, which helped to get Bill Clinton out of office; he is married to Kellyanne Conway, a senior employee at Trump; and he has been seriously considered for the role of Trump's Solicitor General.

Thomas's opinion naturally has even more weight in conservative legal circles – and, all of a sudden, it has been considered gold by opponents of the president wanting to protect Mueller. If this part of the FVRA is indeed unconstitutional – the case is in fact a slam dunk – any action taken by a person named in this way would be legally void.

But be careful what you want

Even then, supporters of good government could pay attention to what they want. Anne Joseph O'Connell of Stanford Law School Remarks: "We need the law on vacancies to temporarily fill the gaps. The modern appointment process is brutal. His research shows that one-fifth of appointed positions can be vacant at any one time – requiring acting replacements – and even successful appointments can take months. These two trends were probably exacerbated during the first two years of the Trump administration.

If this week's strange new bedfellows manage to legally truncate the FVRA, it may preserve the independence of the Mueller Inquiry – at least for a while. But this would be done at the cost of preventing experienced career managers from accessing high-level acting roles. Thus, winning the battle in the short term could undermine the long-term war for administrative competence and the stability of the government.

Learn more by Andrew Rudalevige:


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