One concern I have about Trump’s use of Whitaker is that Trump will use the fear of Whitaker’s obvious hackishness to nominate somone a little less obviously awful, someone who can actually undermine Mueller more subtly and skillfully, and the Senate will confirm that person quickly to get rid of Whitaker… and to limit Mueller more effectively. I think this what people mean by constitutional hardball. And by the term “gaslighting,” as much as I don’t love that particular phrase.
The OLC memo on Whitaker says that he is not a principal officer, because he is either an inferior officer or not an officer at all. I have addressed before that the Acting AG cannot be an inferior officer, because he is a department head, and the Constitution tells us that a department head is a principal officer.
In one of the most helpful posts on this whole debate, Mary Lederman and Walter Dellinger offer a footnote with a helpful analogy:
Will Baude suggests that “as a matter of text and structure,” it appears that a President can’t name an “Acting” Attorney General without Senate confirmation because “[o]n any given day, the office of Attorney General is a ‘principal’ office, so it should require a principal appointment, one with Senate confirmation, to occupy that office even for a day.” That conclusion may or may not be correct, but we aren’t convinced it follows naturally from the “text and structure” of the Appointments Clause itself–because it begs the question at hand, namely, whether the person temporarily performing the office’s functions “occupies” (or holds) that office. Think, for example, of a school district that requires the superintendent to approve of a principal’s hiring of all teachers, but that also permits a school principal unilaterally to hire persons to fill in for such teachers in the event of an unexpected “vacancy,” e.g., illness, vacation or removal. Of course we call such “transient” replacements “substitute teachers”–and we don’t usually think of them as occupying or holding a school “office” or position in the way we think of the “permanent” teachers–of holding the position of “teacher.” They’re simply filling in, and that’s why it’d be unremarkable for the school board to prescribe a different, somewhat less formal and less trustworthy manner of hiring them (i.e., without the approval of the superintendent) than it does for “permanent” teachers.
I think this analogy is helpful, but I think it misses the appropriate level of office here. It is odd to analogize the attorney general/acting AG to the teacher/sub, rather than to the school principal/”acting principal.” Continue reading “An Acting Attorney General is an Officer: Digging into the “substitute teacher”/acting principal analogy”
In its memo on the Whitaker appointment as Acting Attorney General, the OLC re-labels the Acting AG an “inferior officer” to avoid the Senate confirmation problem [or says that the acting attorney general is not an officer at all. More on that later]. The OLC asserts that the temporariness of the acting appointment makes him “inferior,” but time-boundedness has no relationship to the fundamental problem that comes directly out of the Constitution’s text:
- An Acting Attorney General is the head of a department, the DOJ, whether short- or long-term.
- A head of a department is plainly a principal officer as a matter of constitutional text.
- Principal officers must be confirmed by the Senate.
Each of these three steps is clear. The strong version of this textual argument is that there can be no such office as Acting Attorney General or any kind of acting head. Statutes might delegate many tasks of a department head to deputies and assistants, but there should be no unconfirmed acting department head of any kind under Article II.
The weaker version from this reading of Article II is that as long as Congress and the President have created an acting department head, that officer must be Senate-confirmed in some capacity, and probably limited to confirmed officers from that particular department, at least to mitigate the problematic constitutionality of this office as a matter of constitutional avoidance. [On this approach, I agree with Marty Lederman’s and Walter Dellinger’s analysis here, especially their point #2 under the Appointments Clause].
I started this analysis of the OLC’s memo and its misleading historical claims in this long earlier post. This present post is intended to be more focused on the constitutional merits, and it is meant to be more direct. Continue reading “Attorneys General are Department Heads under Article II, and Should Be Senate-Confirmed”
I’ve been criticizing the large and small errors in the OLC memo supporting Whitaker’s appointment. I started last week by pointing out a significant error (or at least a significantly misleading passage) in the OLC’s memo on the relationship between statutes.
I want to highlight a bigger set of problems methodologically about the constitutional argument in terms of its inconsistent methods, its failure to consider originalism while somehow sliding into living constitutionalism, its failure to consider purposes and context (both for constitutional arguments and for statutory arguments), its shading of the historical evidence in favor of its preferred outcome, and its overlooking serious problems based on the Constitution’s text.
[Update: I have to emphasize up top how remarkable it is that the only precedent the OLC provides for an unconfirmed Acting AG is 1) from 1866, 2) for just a week 3) under the chaotic Andrew Johnson, 4) who is infamous for flouting the Senate and was nearly impeached for it, 5) before the AG was even a department head, because the DOJ did not yet exist, and 6) that distinction is constitutionally significant. (OLC p. 11) But there is more in terms of its selective interpretation of the 19th century, too. I also note there is good reason the early republic may have treated AGs differently from other cabinet officers. The Attorney General historically has been understood as a different kind of executive officer, a “quasi judicial officer” from the mid 19th century and on. I also show that AGs were treated differently from other cabinet members. My draft paper addresses this.]
1) The OLC is methodologically incoherent and inconsistent. The OLC uses narrowly textual arguments on the Vacancies Reform Act [VRA] statute, when the legislative history and purposes raise significant questions. This textual approach has many adherents, but the problem is that in the constitutional section, the OLC then suddenly abandons any textualism — and avoiding any originalism or purposivism — and flips to solely post-ratification history, focused mainly on the 20th and 21st century history. It’s not really post-ratification “liquidation.” It looks more like living constitutionalism. I thought that was not allowed.
Here’s my Washington Post op-ed on crony Attorneys General over the past century:
Some suggest Matthew G. Whitaker’s appointment as acting attorney general is unprecedented. It is likely unconstitutional, but, unfortunately, it is not new. After about 150 years of mostly professional attorneys general, a long line of insiders, hacks, cronies and fixers has occupied the office for much of the past century, and has too often damaged the rule of law.
President Trump’s appointment of Whitaker is a steep drop off a slippery slope of corruption. It’s time to make the Justice Department more structurally independent from presidents and their meddling.
Unfortunately, there are even precedents for presidents appointing crony attorneys general as protection from investigation…
This op-ed proposes reforms to check the Attorney General with independent commissioners and a formally independent Office of Legal Counsel. The model borrows from independent agencies like the Fed and the SEC, but balances independence with enough presidential control and political accountability.
For more, see my earlier post and draft paper.
And it connects with this project on state prosecutors, mass incarceration (building on my colleague John Pfaff and “Locked In”) and my book project, “rise of the prosecutor politicians.”
“When you get to the White House there are two jobs you must lock up – Attorney General and director of the Internal Revenue Service.”
–Joe Kennedy, Sr. to John F. Kennedy, perhaps apocryphally. (Joe Sr. had been involved with organized crime during Prohibition. Sound familiar?)
I am posting this draft paper early, before having a chance to work through all the footnotes and the normative structural proposal. But I think this paper is suddenly more relevant right now: There is a long history of crony and corrupt appointments as Attorney General in American history. It’s time for structural reform of the DOJ:
President Trump has designated Matthew Whitaker as acting attorney general to replace Jeff Sessions. Neal Katyal and George Conway and others, citing Justice Clarence Thomas, have argued that the appointment violated the Constitution’s Appointments Clause, because Whitaker was never confirmed by the Senate for his original office, and cannot become a “principal” officer. I am suggesting another reason: The appointment did not follow Congress’s statutory rules for vacancy appointments, based on both a close textual reading and a broader purpose-based reading of those statutes. [Update: I’m now emphasizing purposive more than textual.]