Trump's Appointment of the Acting Attorney General Is Unconstitutional

[dalton99a]

https://www.nytimes.com/2018/11/08/opinion/trump-attorney-general-sessions-unconstitutional.html

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.
By Neal K. Katyal and George T. Conway III
Nov. 8, 2018


Matthew Whitaker, named acting attorney general on Wednesday after the forced resignation of Jeff Sessions, was Mr. Sessions's chief of staff. Charlie Neibergall/Associated Press

What now seems an eternity ago, the conservative law professor Steven Calabresi published an op-ed in The Wall Street Journal in May arguing that Robert Mueller’s appointment as special counsel was unconstitutional. His article got a lot of attention, and it wasn’t long before President Trump picked up the argument, tweeting that “the Appointment of the Special Counsel is totally UNCONSTITUTIONAL!”

Professor Calabresi’s article was based on the Appointments Clause of the Constitution, Article II, Section 2, Clause 2. Under that provision, so-called principal officers of the United States must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.

He argued that Mr. Mueller was a principal officer because he is exercising significant law enforcement authority and that since he has not been confirmed by the Senate, his appointment was unconstitutional. As one of us argued at the time, he was wrong. What makes an officer a principal officer is that he or she reports only to the president. No one else in government is that person’s boss. But Mr. Mueller reports to Rod Rosenstein, the deputy attorney general. So, Mr. Mueller is what is known as an inferior officer, not a principal one, and his appointment without Senate approval was valid.

But Professor Calabresi and the president were right about the core principle. 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.

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[mahatmakanejeeves]

1. We're going to Kavanaughworld!

[BigmanPigman]

2. He is above the law, all laws. He does whatever he wants and will until the House flips in Jan.

Be prepared for non stop contitiutional crisis issues from now on. Attend the over 900 protests tonight at 5 PM. Stand up and tell the fake prez that we will stop him!

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BREAKING: PROTESTS CALLED FOR THURSDAY, NOVEMBER 8, 5 PM LOCAL TIME
Donald Trump has installed a crony to oversee the special counsel's Trump-Russia investigation, crossing a red line set to protect the investigation. By replacing Rod Rosenstein with just-named Acting Attorney General Matt Whitaker as special counsel Robert Mueller's boss on the investigation, Trump has undercut the independence of the investigation. Whitaker has publicly outlined strategies to stifle the investigation and cannot be allowed to remain in charge of it. The Nobody Is Above the Law network demands that Whitaker immediately commit not to assume supervision of the investigation. Our hundreds of response events are being launched to demonstrate the public demand for action to correct this injustice. We will update this page as the situation develops.