Yes, Matt Whitaker Qualifies As Acting Attorney General Under the Federal Vacancies Reform Act

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.

Lacking confirmation?

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.

Limited To Civil Servants?
The final argument is that the federal law presumes that the acting official holds a civil service not political appointment. However, that distinction is nowhere to be found in the language.  It would be surprising if a federal court was willing to constructively rewrite the law to draft on such a major limitation.
I fail to see the compelling argument to disqualify Whitaker.  Any challenge would face added challenge of finding someone with standing, though Mueller could contest an order on the basis of the legal status of Whitaker.  That would make for an interesting challenge but the odds would be against Mueller over the long course of appeals.

122 thoughts on “Yes, Matt Whitaker Qualifies As Acting Attorney General Under the Federal Vacancies Reform Act”

  1. Jonathan
    The US Supreme Court says you are legally WRONG.
    Last year, the Supreme Court examined the question of whether the general counsel of the National Labor Relations Board had been lawfully appointed to his job without Senate confirmation. The Supreme Court held the appointment invalid on a statutory ground.

    Justice Thomas agreed with the judgment, but wrote separately to emphasize that even if the statute (5 USC 3348) had allowed the appointment the Constitution’s Appointments Clause would NOT have. The officer in question was a “principal officer.” And the public interest protected by the Appointments Clause was a critical one: The Constitution’s drafters, Justice Thomas argued, “recognized the serious risk for abuse and corruption posed by permitting one person to fill every office in the government.” Which is why, he pointed out, the framers provided for advice and consent of the Senate.

      1. Princess Trohar excels at unsupported assertions: Her Highness did not say why the phrase “legally wrong” is supposedly nonsensical. She merely asserted thus and so, no doubt fully in keeping with her unwarranted presumption of superiority of “place or position” as a cartoon character.

    1. BET:
      Since you didn’t cite the case you discussed I looked it up. As with many things zealots’ claims (I read your antiTrump Twitter screed) the case holding doesn’t support you’d rather unlettered opinion of the federal act in question. The case is: https://www.laborrelationsupdate.com/files/2017/03/National-Labor-Relations-Board-v.-SW-General-Inc.-DBA-Southwest-Ambulance-USSC-Case-No.-15-1251-March-21-2017.pdf

      SCOTUS Was dealing with an appeal from the DC Circuit court ruling that “based on its interpretation of the Federal Vacancies Reform Act (“FVRA”), a statute enacted in 1998, that someone who is nominated serve in an acting office could not also serve as the permanent nominee.” In this JT article of course, we’re discussing an interim appointment NOT a permanent nominee. So factually you’re just plain wrong.

      The holding by the Court affirms this interpretation:

      “The Supreme Court affirmed the D.C. Circuit’s decision, finding that application of the statute to these circumstances was fairly “straightforward.” After analyzing the plain language of the statute, the Court concluded that subsection (b)(1) of the FVRA clearly prevents a person who has been nominated to fill a vacant office requiring Presidential appointment and Senate confirmation (referred to as a “PAS office”) from performing the duties of that office in an acting capacity.”

      Whitaker has not been appointed to serve as USAG merely as the acting Attorney General.

      Are you a lawyer or did you just sleep outside a Holiday Inn Express last night?

      To sum up, JT IS not WRONG as you breathlessly claim several times, and you, as you project, are the ill-advised “hack.”

      1. The Supreme Court affirmed the D.C. Circuit’s decision, finding that application of the statute to these circumstances was fairly “straightforward.” After analyzing the plain language of the statute, the Court concluded that subsection (b)(1) of the FVRA clearly prevents a person who has been nominated to fill a vacant office requiring Presidential appointment and Senate confirmation (referred to as a “PAS office”) from performing the duties of that office in an acting capacity.”

        Whitaker has not been appointed to serve as USAG merely as the acting Attorney General.

        Mark,
        If the court concluded that FVRA prevents anyone from performing the duties in an acting capacity if they haven’t gone through the PAS confirmation process, why would Whittaker be eligible? Wouldn’t the intent of FVRA be to put a check on the President from filling PAS vacancies, even in an acting capacity, with those that would abuse the power of the office? Whittaker might be a nominee that would be confirmed through the senate, but what if he was more like a Holder or Lynch and simply weaponized the office under the orders of the President?

  2. Jonathan
    US Supreme Court says you are legally WRONG. In 2017, the Supreme Court examined the question of whether the general counsel of the National Labor Relations Board had been lawfully appointed to his job without Senate confirmation. The Supreme Court held the appointment INVALID on a statutory ground.

    Justice Thomas agreed with the judgment, and wrote separately to emphasize that even if the statute (5 USC 3348) had allowed the appointment, the Constitution’s Appointments Clause would NOT have because the officer in question was a principal officer. Justice Thomas wrote that the public interest protected by the Appointments Clause was a critical one: The Constitution’s drafters, Justice Thomas argued, “recognized the serious risk for abuse and corruption posed by permitting one person to fill every office in the government.” Which is why, he pointed out, the framers provided for advice and consent of the Senate.

  3. It would be surprising if a federal court was willing to constructively rewrite the law to draft on such a major limitation.

    Then you have not been paying attention to why Progressives have lost their freaking mind over President Trump’s nominations to the courts. The Progressives know their power is through the courts and not through the normal legislative process.

    1. Right. [Sarcasm aleret] That explains why Trump went so far out of his way to bypass the advise and consent of The Senate in choosing Whitaker to replace Sessions instead of Alex Azar or Steven Bradlley–both of whom are Senate-confirmed principal officers who could have easily replaced Sessions without completely and totally bypassing the advise and consent of The Senate.

        1. does it help prove your point to put the same word in caps over and over? i can read small case just fine thanks

          i use caps too sometimes but calm down a little please

          1. Mr. Drossophile is too keen on telling other commenters what to write, what not to write and how to write it. Shoo fly! Shoo!

        1. he is a constitutional expert
          to use the argot of stockbrokers, Turley is a whale

          https://en.wikipedia.org/wiki/Jonathan_Turley

          Prominent cases
          In addition to maintaining a widely read blog,[53] Turley has served as counsel in some of the most notable cases in the last two decades—representing whistleblowers, military personnel, and a wide range of other clients in national security, environmental, constitutional, and other types of cases. Among them:

          Lead counsel in United States House of Representatives v. Price, the 2014 constitutional challenge of President Obama’s changes to the Affordable Care Act.
          Lead counsel in Brown v. Buhman, for the Brown family from the TLC reality series Sister Wives, in their challenge of Utah’s criminalization of polygamy.
          Lead counsel for five former United States Attorneys General in litigation during the Clinton Impeachment in federal court.
          Lead counsel to ‘Five Wives Vodka” in successful challenge of ban on sales in Idaho due to a finding that the product was insulting to Mormons.
          Lead counsel representing Dr. Sami Al-Arian in securing this release for civil contempt and later in defense of criminal contempt charges (which were dropped after years of litigation).
          Larry Hanauer, a House Intelligence Committee staff member falsely accused of leaking classified information to The New York Times.[54]
          David Faulk, a whistleblower who revealed abuses at NSA’s Fort Gordon surveillance programs.[55]
          Dr. Eric Foretich,[42] in overturning the Elizabeth Morgan Act in 2003.[56]
          former Judge Thomas Porteous in his impeachment trial defense.[41]
          Defendants in terrorism cases, including Ali al-Tamimi (the alleged head of the Virginia Jihad/Paintball conspiracy).[57]
          Area 51 workers at a secret air base in Nevada.[58][59]
          Lead counsel in the litigation over the mass arrests at the World Bank/IMF protests in Washington.[60]
          Turley represented the Rocky Flats grand jury in Colorado.[61]

    1. One retired judge Napolitano’s opinion. Why lie and present as if it’s the entire FNC network? It’s an opinion lacking any authority of law. Napolitano never states anyone who disagrees is wrong. That’s the nature of an opinion. But you know that already, or if you don’t you should.

    2. The fact that you have to make up lies proves the weakness of your position. Napolitano’s article lacks the word “illegal.” Rather Napolitano states, “…Trump’s pick…is…not legally qualified…” Stop lying, being such a lazy dunce, and/or learn to read. Trump’s pick is not illegal.

      1. Her Highness The Cartoon Princess said, “Napolitano never states anyone who disagrees is wrong. That’s the nature of an opinion.”

        Unfortunately, Her Cartoon Highness goes on to argue that anyone who agrees with Napolitano’s opinion is supposedly making up lies. Well then, the commoners are not allowed to agree with any opinion with which Her Cartoon Highness disagrees. And that is the nature Cartoon Royalty.

  4. Whittaker should immediately appoint a Special Prosecutor to investigate FBI and DOJ actions against Trump during the campaign, including all the usual suspects, Comey, etc., and also Senators and Representatives for leaks.

    Ultimately, every Mueller conviction should be overturned because the original justification for Mueller’s office came out of criminal and/or unethical actions by the FBI and DOJ under Trump’s political enemies Obama and Clinton. And the government should be forced to reimburse everyone who spent money for their defense.

    1. So far every last single Judge of a United States Court who has been asked to rule on the original jurisdiction for Mueller’s office has ruled in favor of Mueller’s original jurisdiction. That is thus and so because federal judges are Constitutionally prohibited from so little as merely recognizing the opinions of Cartoon Princesses let alone making judicial decisions on the basis of any Cartoon Royal’s opinion.

  5. Not acceptable to the left means will not be a toad for Schumer and his one party, one leader socialist progressive form of government which was developed by the original socialists aka international and before some of their leadership broke off to become the national socialists.

    Yet they can vote for and will not doubt install a straight up socialist who campaigned anti-constitution but will smiling all the time take the oath of office to that Constitution and thus also violate I take this oath wilingly with no purposes of evasion.’ While Comrade Benita Pelosillyni smirks and Comrade Schumuckley Putz finds something for his international socialist inspired fascist Antifada to do .

    No problem the magic formula is vote no to anything they come up with, same in the senate (also we need to identify the next RINOs to drive out) or let it go to a Presidential veto and then watch them cry like rats eating chiles as they don’t have enough to over ride.

  6. No problem. It’s one of the five or six or seven ways to make your vote count. It’s called, in political science, the under vote also referred to as “None Of The Above.” It shows the number of those who registered but did not vote .

    Another way is reverse raiding. You sign up as a Democrat as I did then vote against them. In this case I did positive rating as we hired Trump to do exactly what he is doing and rid our Republic of an infestation of an unacceptable foreign ideology that is completely counter to our of, by, and for the citizens res publica system.

    So far that choice has been well worth bringing in a non politician who knows exactly what he is doing in all the things that count except, and who cares after watching Acostas despicable performance. The left can make zero comment on social graces. .

  7. Jonathan,
    You are legally wrong. Appointing Matt Whitaker violates US Constitution Art II Sec.II.
    **Refresher Law School 101 class: Surely to gawd you know that the US Constitution is the Supreme Law of the land and therefore is superior to any Federal Statue including but not limited to being superior to 5 USC 3345
    ***US Constitution Article II: POTUS “shall have power, by AND WITH the ADVICE AND CONSENT of the Senate, to … SHALL nominate, and BY AND WITH the ADVICE and CONSENT of the Senate, SHALL appoint … all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law…”
    So to reiterate, you are legally WRONG and Trump is violating US Constitution Art II
    … but Trump does not respect the law so his violating laws is nothing new.

  8. I expect that Whitaker will keep the DOJ as ethical and independent as Eric Holder and Loretta Lynch did in the Obama Administration.

      1. So once Trump gets a new “permanent” Attorney General confirmed by the Senate, the objections of the Trump DOJ will cease.
        Just as all objections to Kavanaugh’s nomination ceased once he was “confirmed by the Senate”.
        Yeah, I can’t argue with that “logic”

    1. No AG in the history of the US, not even Nixon’s AG, approaches the felonious crimes of Eric Holder, who invented the lies the DOJ used to insure their buddy Jamie Dimon of Goldman Sachs got clean away with trillions of dollars in felony crimes damaging the US economy:
      https://www.youtube.com/watch?v=eHgbRYgpGGs

      Holder and his DOJ Lts. conspired with GS. Immediately when Holder and his Lts. left the DOJ, they went to work for Cantor Fitzgerald, the world’s largest white collar crime law office. The video answers the Q: After Obama left office, why was his first stop to collect a half million dollar fee for an hour long speech at Cantor Fitzgerald? It’s called “Pay Day” for keeping Jamie from doing life in prison, which he richly deserves.

      1. Princess I’m with you on that. Holder protected top financiers from proper fraud prosecutions that should have been done and were not. We are not the only onces who noticed either.
        and yet, Democrats pretend they are the party of the workers.

      2. Excerpted from the Wikipedia article on Nixon’s AG John Mitchell:

        On February 21, 1975, Mitchell, who was represented by the criminal defense attorney William G. Hundley, was found guilty of conspiracy, obstruction of justice, and perjury and sentenced to two and a half to eight years in prison for his role in the Watergate break-in and cover-up, which he dubbed the “White House horrors.” As a result of the conviction, Mitchell was disbarred from the practice of law in New York. The sentence was later reduced to one to four years by United States district court Judge John J. Sirica. Mitchell served only 19 months of his sentence at Federal Prison Camp, Montgomery (in Maxwell Air Force Base) in Montgomery, Alabama, a minimum-security prison, before being released on parole for medical reasons.

        [end excerpt]

        It is not at all unsurprising that Cartoon Royalty would be so keen on rehabilitating the reputation of a convicted criminal who served Nixon as Attorney General. In fact, it is not even surprising that Cartoon Royalty would do thus and so as a factotum for defending The POTUS, Trump.

  9. Jonathan,
    You talk out of both sides of your mouth, again. & when you do that, you LOSE credibility.
    *On the one hand you explain 5 USC 3345 (a)(2) mandates the person running the Department of Justice must have already been approved by United States Senate for some previous position, even for an interim position for someone who “resigned”
    *Then you admit “The overlapping provisions [in (a)(3)] is tedious”
    *** But, as usual, out of the other side your mouth you write, “I fail to see the compelling argument to disqualify Whitaker.” … even tho you had just WRITTEN a compelling argument to disqualify Whitaker.

    It pains me to this, but you are a hack …

          1. Trump had at least two Senate-confirmed officers available to replace Sessions–Alex Azar and Steven Bradley. Trump went well out of his way to choose to bypass the advise and consent of The Senate. The explanation for Trump’s choice of Whitaker is not to be found in any reading of any law. Instead, the explanation lies in the character of Whitaker and the character of Trump. Whitaker told Trump that he can defund the special counsel’s investigation. Trump will probably tell Whitaker to appoint special counsel’s to investigate Trump’s political opponents. Whitaker will probably do what Trump will probably tell Whitaker to do.

    1. You won’t see them before Putin does, Zamboni. Trump is delivering them to Vlad this Sunday at the commemoration for the 100th anniversary of the end of The First World War. In return, Vlad will give Trump, Trump’s answers to Mueller’s interrogatories in light of Mueller’s grand jury information that Whitaker is currently reporting to Trump and Trump’s lawyers. The entire open-book take-home test with private tutors feeding Trump crib notes will have to be rewritten in light of Putin’s decisions about Mueller’s grand jury information. Of course, Vlad will have to be briefed on Mueller’s grand jury information as well. Sunday is going to be a very busy day for Trump.

      BTW, Happy Friday November 9th, 2018. Did you know that Mueller has made a habit of bringing indictments on Fridays?

  10. Left is worried that this witch-hunt will come to an end and the investigation will switch to the Clintons as well as the Obama administration. Time we learn who ordered the unmasking of private citizens and any Government official who knowingly used an unsecure server to transmit classified material should be held accountable, this includes Obama.

  11. The time has come to deport the fascist “anti-fascists” and send them to Venezuela. They, like CNN Acosta, have lost any credibility and hence their credentials as Americans

  12. Whitaker is nothing but a fascist trump sycophant. That alone disqualifies him for any job. His prior statements against the investigation and his connection with a witness disqualifies him. At the very least he should have the decency to recuse himself. His only job is to shut down the investigation into the fascist trump, his crime family and allies here and in Russia. Keep GitMoe open for those that belong there, the fascist trump and his entire crime family and allies.

    1. I agree. Isn’t this behavior the same that caused the sacking of Peter Strock, by the behest and indignation of the Trumpster?? By reaching this far into his party for hire bin he is setting up another protracted fight and it is obvious it is obstructive in nature. We don’t have a President, we have a…I don’t even know what to call this crap…
      https://www.washingtonpost.com/world/national-security/fbi-agent-peter-strzok-fired-over-anti-trump-texts/2018/08/13/be98f84c-8e8b-11e8-b769-e3fff17f0689_story.html?noredirect=on&utm_term=.15e13f6d586a

    2. Eric Holder was nothing more than a Obama sychophant. That a.one should disqualify him for any job.
      See the stupidity of your argument?

      1. wipam, let’s not forget that Eric Holder once called himself Obama’s “wingman”.
        You know, as in “I’ll protect you and you’ll protect me” kind of wingman ! They certainly did !

  13. I think he is just going to make Mueller account for all his spending first. That will tie Mueller up for the next 6 months.

  14. As a fascist trump sycophant, he is not qualified for any job. His only job is to interfere in the investigation into the fascist trump, his crime family and it’s allies here and in Russia. As he is connected to the investigation he should at least recuse himself and put Rosenstein back on the job. The typical bully, the fascist trump is a coward and afraid of the truth. Keep GitMo open for those that really belong there, trump et-al.

    1. The Party’s Programmers have spoken the Party Truth to the Collective at least for the day. Rosenstein hasn’t been taken off the job … yet Stupid.

    2. i like this guy’s point of view. He wants to throw the President in lockup at GITMO.

      Ok, that’s radical, but hey, if you want it, well, maybe then let the civil war begin.

      45% of the landmass of red state America versus LA, New York, and San Francisco. Easy outcome. Big cities starved out in 2 weeks.

      Probably, Mexicans would swarm over the border, and take back Socal and south texas, but they can have it. It would be a worthwhile trade.

      1. Midwest would wither without the urban tax base. The takers would not have anything to take whereas the urbanites would buy imported staples. Problem solved, red states lose again – it is getting old.

        1. YNOT – you are a fount of ignorance. The Midwest, Southwest and West are self sufficient. And they create enough surplus to supply large cities and foreign countries. What does NYC export?

          1. They don’t teach geography in secondary schools anymore, so the adolescent contingent here come up with howlers.

            1. YNOT – I thought NYC was getting federal grants for roof gardens. A thriving business that will feed all of NYC. Then of course there were the loans to the banks to bail them out, which were never fully paid back.

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