Today I have two columns in USA Today and The Hill on the sacking of Jeff Sessions and appointment of Chief of Staff Matthew Whitaker as Acting Attorney General. The Hill column challenges arguments that Whitaker must recuse himself. However, this morning some members and commentators have declared that Whitaker cannot serve as an Acting Attorney General under federal law. I have to disagree. While not getting into the merits of the selection, it seems clear to me that, under 5 U.S.C. 3345, that Whitaker does indeed qualify. (This of course does not address the long-standing debate over the constitutionality of such laws. A challenge can be made under the Appointment Clause of the Constitution, mandating that a “principal officer” in the federal government may not be appointed without Senate confirmation).
There are three arguments that have been raised against the appointment by Whitaker.
Resigned or Fired?
Under the Federal Vacancies Reform Act, a president is to appoint an acting official when a Senate-confirmable officer “dies, resigns, or is otherwise unable to perform the functions and duties of the office.” Some have argued that Sessions was fired since his letter begins with the line “At your request, I am submitting my resignation.
It is argued that this constitutes a “constructive termination.” However, Sessions refers to the “request” and elects to resign rather than be fired. In my view, that is legally a resignation. Courts avoid delving into such highly political and personal calculations. Sessions chose to resign and I think a court would so rule.
Some have argued that an acting official must have been previously confirmed to qualified under the Act. That is certainly true for the first provision of the Act, but there is an exception.
The Act does state that in section (a) (1) and (2) that the President may appoint “the first assistant to the office of such officer” or “a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate.”
However, Subsection (a)(3) states “notwithstanding paragraph (1), the President (and only the President) may direct an officer or employee of such Executive agency to perform the functions and duties of the vacant office temporarily in an acting capacity, subject to the time limitations of section 3346, if (A)during the 365-day period preceding the date of death, resignation, or beginning of inability to serve of the applicable officer, the officer or employee served in a position in such agency for not less than 90 days; and (B) the rate of pay for the position described under subparagraph (A) is equal to or greater than the minimum rate of pay payable for a position at GS–15 of the General Schedule”
The overlapping provisions is tedious, but it would seem that Whitaker qualifies on his status and prior service. From what I can gauge, he was appointed to prior position on September 2017. That is over 90 days and Chief of Staff is graded at GS-15 or above.