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.

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

  1. Jonathan Turley, 2 attorneys wrote an article in TNYT today which completely disagrees with you.

  2. Damn, you folks are so funny and you pontification is just so stinky. How stupid is Matthew Whitaker? We all know you cannot fix stupid and ignorance is its own punishment. Quid pro quo will not keep him safe! Very deep du du and exceptionally bad ju ju for him.

  3. i have been wanting to say this a long time now Im going to get it off my chest

    I think Kellyanne Conway is hot. She’s a wee bit older than me but Yes for sure

    I’m fat too but not even as fat as her tripled chinned whale of a husband. She needs a real man. look at this loser. what a goof. he prolly hasn’t had a roll in the hay in a few years anyhow, i doubt he can do his conjugal duty or even cares to try

    she should take a cue from Trump’s old tv show and say,

    1. Kurtz: Agree that Kellyanne should dump her fat slob of a husband. He’s not showing her any respect looking like that, and then publicly criticizing her boss to boot! I imagine she’s on her treadmill every night working to stay in shape, while her lazy husband is sitting in front of the t.v. stuffing his face with potato chips and Oreos. Not only is he obese, but he’s also soft looking. He has a fleshy, baby face, which means he has low testosterone levels. I doubt that he’s capable in the sack, or that she would even want it. Presumably he was a real man once, but those days are long gone…..

    1. The acting attorney general, Matthew G. Whitaker, once espoused the view that the courts “are supposed to be the inferior branch” and criticized the Supreme Court’s power to review legislative and executive acts and declare them unconstitutional, the lifeblood of its existence as a coequal branch of government.

      reply to that from the first few days of constitutional law in law school

      a) demur, the constitution does indicate the courts are inferior. in order it is article I congress article II executive and article III judiciary.

      Congress is first because it is the wellspring of legitimacy and has the organic power to redefine the constitution

      see Marbury v Madison, 1803

      b) it was the Supreme Court itself and not the text of the constitution per se, which assumed the power to decide what is constitutional. again it is basic constitutional law 101 that this is not explicit in itself, and other governmental systems do not and need not work this way including in the modern Western world. in other systems they are in fact inferior and it is arguable from the constitutional text that they were intended to be here as well but Mr Marshall changed that with Marbury v Madison.

      so his views there are not controversial at all

      1. Mr Kurtz – Whitaker is Constitutionally correct from a historic standpoint. However, from a pragmatic standpoint, he is still going to have to show up before the judge. 😉

        1. right and nobody really objects to constitutional review per se, but, it is indeed a view of the Republican party for decades that the SCOTUS goes too far. it’s a very important political question and views may vary but don’t call the guy a radical when he isnt

          1. Mr Kurtz – when I took my 2 semester course in the History of the US Constitution, we spent a lot of time just on that question since it set up all the problems and cases after it.

            Marshall took power for the court, he didn’t have, but covered himself by ruling against the party in question (if I remember correctly, it has been over 35 years since I took the course). He slipped one through when no one was looking. By the time people figured it out, it was too late. 😉 There was a fiefdom on the rise.

            1. he crafted a legitimate solution to a theoretical problem latent in the constitution, when the need arose. it was legit then and now, but it can go too far as in when during the past 100 years they overstepped Congress to enact social engineering that was desired by the “powers that be” which could not force the desired changes through in the legislature

    2. OMG, could this be a CONSTITUTION CRISIS?!!!

      Breaking news: each of the 3 branches thinks there’s is better than the other 2.


  4. “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
    Mr. Katyal and Mr. Conway are lawyers.

    Nov. 8, 2018

    “Because Mr. Whitaker has not undergone the process of Senate confirmation, there has been no mechanism for scrutinizing whether he has the character and ability to evenhandedly enforce the law in a position of such grave responsibility. The public is entitled to that assurance, especially since Mr. Whitaker’s only supervisor is Mr. Trump himself, and the president is hopelessly compromised by the Mueller investigation. That is why adherence to the requirements of the Appointments Clause is so important here, and always.

    “As we wrote last week, the Constitution is a bipartisan document, written for the ages to guard against wrongdoing by officials of any party. Mr. Whitaker’s installation makes a mockery of our Constitution and our founders’ ideals. As Justice Thomas’s opinion in the N.L.R.B. case reminds us, the Constitution’s framers “had lived under a form of government that permitted arbitrary governmental acts to go unchecked.” He added “they knew that liberty could be preserved only by ensuring that the powers of government would never be consolidated in one body.”

    “We must heed those words today.”

    1. Kelleyanne should dump that guy. Or vice versa. They can’t seriously maintain a household can they?

      1. Progressives two years ago: “Trump winning is the end of the USA!” And here we are, still waiting for Hollywood elites to move out of the US…

  5. The text of Article II of the U.S. Constitution reads:

    “he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, “…

    “he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”…

    “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

    The term ‘principal Officer’ in the first quoted paragraph is singular. There’s no compelling reason to treat federal departments and agencies as if they had a scrum of ‘principal officers’ That’s embroidery.

    In truth, far to many positions are subject to Senate confirmation. Requiring confirmation just for those who report directly to the President (at least notionally), for justices of the Supreme Court and for the ambassador or senior foreign service officer in each loci abroad should suffice to fulfill the spare terms of the provision. You could add some others:

    1. The remainder of the judiciary
    2. Inspectors-General (of departments and of stand-alone agencies whose budget exceeds a certain threshold).
    3. The military chiefs of staff
    4. Subdepartmental agencies whose writ contains within it a more than tangential involvement in policing, civil regulation, administrative adjudication, tax collection, intelligence collection, or oversight.
    5. Presidential appointments outside the executive branch generally (e.g. the Librarian of Congress).
    6. The division chiefs in the Department of Justice
    7. U.S. Attorneys
    8. U.S. Trustees.

    Ideally, the portfolio of stand-alone agencies would be organized by Congress into new departments, so the president had only about 30 (notional) direct reports. Ideally also, the number of subcabinet officers in each department intervening between the Secretary and the constituent agencies and offices would be a mathematical function of the number of such units and limited by law. No more ‘deputy undersecretary for blah blah blah’. A corps of persons variously referred to as ‘undersecretary’, ‘assistant secretary’, ‘staff secretary’ numbering about 8 in a typical department should do, with a formal second-in-command limited to departments like Defense and State with the largest number of constituent agencies.

        1. There’s a Roger Stone associate by the name of Andrew Miller who is currently challenging Mueller’s subpoena power on the novel theory that Mueller is supposedly a superior or principal officer of the executive branch who was not confirmed by The Senate. The lawyers for Concord Management have made the exact same challenge–which is how Andrew Miller’s lawyer got clued-in to the argument. So we now have Trumpanzees simultaneously arguing that the Acting Attorney General does not require Senate confirmation and The Special Counsel did require Senate confirmation.

          It’s almost as though Republicans have no procedural principles–just a series of improvisations aimed at obtaining their desires for the sake of slaking their feelz.

  6. “Acting attorney general says judges should have a ‘biblical view of justice’ – archive video”

    “Matthew Whitaker, now acting attorney general after the president fired Jeff Sessions, said of prospective federal judges, ‘are they people of faith? Do they have a biblical view of justice? Which I think is very important.’ Whitaker made the remarks at a conservative forum in April 2014, where he appeared as a candidate for the Republican US Senate nomination in Iowa”

    1. 404 error. useless link

      as for the Bible I don’t follow the Law of Moses, i’m Catholic so we believe Christ was the fulfillment of the Law and follow the new law, which does not abolish one iota of the old law but generally exhorts along two dimensions a) love God and b) love they neighbor. is that bad?

      and it was inspirational for all of the West to say nothing of the Levant. You add in all the Christians Jews and Muslims in the world and the Laws of Moses are pretty important laws I’d say

      1. “Matthew Whitaker: acting attorney general said judges should be Christian”

        “Trump’s replacement for Jeff Sessions to lead the justice department said judges needed a ‘biblical view of justice’”

        “Donald Trump’s new attorney general once said that judges should be Christian and proposed blocking non-religious people from judicial appointments.”

        “Whitaker was previously a paid adviser to an invention-promotion company in Florida that was accused by the US government of running a multimillion-dollar scam. Court records show Whitaker sent a threatening email to one of the alleged scam’s victims who tried to complain.”

        1. Donald Trump’s new attorney general once said that judges should be Christian and proposed blocking non-religious people from judicial appointments.

          Let us know if there is any evidence that his Christian worldview prevented him from carrying out his constitutional duties.

          1. OLLY – isn’t the Supreme Court made up of Catholics and Jews? They seem to do their job. Now, granted I don’t always agree with them, but it is not on religious grounds.

            And J. Edgar Hoover liked Catholic and Mormons for his agents. They got the job done.

            1. The ignorance of these people is remarkable. They’re like feinting goats when not in power and jackals when they have it.

        2. ““Donald Trump’s new attorney general once said that judges should be Christian…”

          The lack of credibility of anything said by Anonymous is demonstrated in the above quote. She is quoting snippits or headlines which are meant to create interest and not represent the truth. That is how some people act, but after awhile everyone should realize how innaccurate most of what she posts is.

            1. The above posting clearly shows that your postings lack any credibility whatsoever.

              It’s not up to me to prove what you insinuated is a lie. It’s up to you to prove it to be the truth. You never prove anything so I’m not waiting, nor do I have to. Your credibility is near zero and speaks for itself.

              1. Excerpted from the brief article to which anonymous linked above:

                Matthew Whitaker, who was made acting attorney general on Wednesday after Trump fired Jeff Sessions, said judges needed a “biblical view of justice” and questioned the judgment of secular lawyers. Whitaker made the remarks at a conservative forum in April 2014, where he appeared as a candidate for the Republican US Senate nomination in Iowa.

                [end excerpt]

                The only way to get FUBARAllan to read any linked article is to rub his nose in it. If you want more than that snippet, FUBARAllan, all you have to do is click on the link and go read the damned article. It’s not very long.

                1. ” said judges needed a “biblical view of justice”

                  Of course that is not the quote I referrred to along with their being no context to that 4 word phrase.

                  “Donald Trump’s new attorney general once said that judges should be Christian…” was the quote without explanation and meant to cloud, not elucidate the situation. This demonstrates the lack of credibility behind anything Anonymous says and anything you say as well whether quoted or not.

                  Truth is not something that either of you two twins seem to understand so I will repeat myself: “It’s not up to me to prove what you insinuated is a lie. It’s up to you to prove it to be the truth. You never prove anything so I’m not waiting, nor do I have to. Your credibility is near zero and speaks for itself.”

                  1. It’s good to see that Allan is running around in circles again today. Some things never change.

                    1. Take note how vacuous all your responses are. There is nothing to be gained listening to your chatter.

                    2. Anonymous, I am not prejudiced against the stupid so as you note I respond to them as well.

                    3. Allan must have the last word. Always. (Maybe this time? Will Allan just shut his big yap?)

                    4. Yes, Allan will have the last word because Allan’s name was used not some non-descript generic name like Anonymous with a generic icon. Further, Allan is right and Anonymous wrong. That is why Anonymous can only answer with vacuous statements.




    President Trump’s pick to serve as acting attorney general was reportedly involved in a invention-marketing company that the Federal Trade Commission (FTC) deemed a “scam.”

    The Guardian reported Wednesday that Matthew Whitaker sat on the advisory board of World Patent Marketing, a firm that was ordered to pay a $26 million settlement in May after federal authorities said it duped aspiring inventors.

    Whitaker was not named among the defendants in the case against the firm, but court filings show he received regular payments of $1,875 from the company, which is based in Florida, according to the newspaper.

    Whitaker in 2014 stated that the company goes “beyond making statements about doing business ‘ethically’ and translate those words into action.”

    The FTC later filed a lawsuit against World Patent Marketing and its founder, Scott Cooper, in March 2017. The government accused it of running “an invention-promotion scam” that tricked “thousands of consumers out of millions of dollars.”

    The money was reportedly intended for patents and licensing deals for the clients’ inventions. The FTC wrote in its complaint that the company “failed to fulfill almost every promise they make to consumers.”

    On Wednesday, the Miami New Times reported that, in August 2015, Whitaker sent a threatening email to a former customer who had complained about the company. In the email, which was obtained by the New Times and The Guardian, Whitaker wrote that there could be “serious” consequences.

    “I am assuming you understand that there could be serious civil and criminal consequences for you,” Whitaker wrote in an email, published by the New Times. “Understand that we take threats like this quite seriously.”

    President Trump on Wednesday announced that Whitaker would become acting attorney general after Attorney General Jeff Sessions announced his resignation at the president’s request.

    The Miami New Times first reported Whitaker’s ties to the company last August. Whitaker went on to serve as Sessions’s chief of staff starting in September 2017.

    Whitaker did not immediately return The Guardian’s request for comment.

    From: Trump’s Acting A.G. Was Involved In Company Accused Of Being A Scam By FTC

    THE HILL, 11/7/18

    1. I take it Peter Shill has sworn off ever quoting Paul Krugman (aka ‘former Enron adviser Paul Krugman).

      1. Let’s hear what Krugman has to say about it:

        ME AND ENRON

        Some people have accused me of an ethical lapse because I served briefly on an Enron advisory board in 1999 – even though I disclosed that relationship the only time I wrote about the company (rather favorably) for Fortune, back in May1999, and again the first time I wrote about the company (in a highly critical article) for the New York Times, which I did in January 2001. Since then I’ve been pretty hard on Enron, to say the least: I criticized the firm’s role in the California energy crisis, and have not been kind as the firm’s own problems have surfaced.

        By the way, here’s the piece I wrote in Fortune. It looks a bit naive now, but it’s a love letter to markets, not to Enron.

        So what was my relationship with Enron? I was offered a $50,000 fee for a year’s participation in the advisory board, which would entail attending and presenting at two meetings, each of which would extend over two days. The year I was on the board only one meeting took place; the other was canceled because of weather.

        These meetings were not about Enron business, nor were they about policy in areas closely related to Enron business; basically they were seminars on world affairs. From my point of view this was much like a paid speaking engagement, of the kind that is common for academic economists, at least those who work on issues that bear on matters of business interest, like the state of the world economy. The only difference was that in effect I had agreed to deliver several talks, and join in an extended discussion of other peoples’ talks.

        At the one meeting I attended, I talked about the Asian financial crisis, then still in full swing.

        My critics seem to think that there was something odd about Enron’s willingness to pay a mere college professor that much money. But such sums are not unusual for academic economists whose expertise is relevant to current events. And there were other academics, such as the Harvard Business School’s Pankaj Ghemawat, on the panel; presumably they had the same arrangement.

        Remember that this was 1999: Asia was in crisis, the world was a mess. And justifiably or not, I was regarded as an authority on that mess. I invented currency crises as an academic field, way back in 1979; anyone who wants a sense of my academic credentials should look at the Handbook of International Economics, vol. 3, and check the index. Here’s my current cv .

        And I wasn’t an ivory-tower academic. In 1994 I had published an article in Foreign Affairs, “The myth of Asia’s miracle”, which was skeptical about the region’s economic prospects, and seemed vindicated by the crisis that broke out three years later. In August 1998 I had advocated temporary capital controls as a way to deal with the crisis, just days before Mahathir put them into effect in Malaysia. Also in 1998 I had taken on the Japanese situation, with a series of papers that introduced the idea of inflation targeting as a way out of the trap; “It’s baack: Japan’s slump and the return of the liquidity trap” was published in Brookings Papers in late 1998; ever since, inflation targeting has been a central subject of debate in Japan.

        Because of my role in the debates of the time, I was asked to advise various Asian and Latin American countries (offers which still come in), but declined.

        I mention all this not as a matter of self-puffery, but to point out that I was not an unknown college professor. On the contrary, I was a hot property, very much in demand as a speaker to business audiences: I was routinely offered as much as $50,000 to speak to investment banks and consulting firms. They thought I might tell them something useful. For what it’s worth, Citibank officials said – you can check it out with a Nexis search – that a heads-up I gave them in 1996 about the risks of an Asian currency crisis saved them hundreds of millions of dollars.

        If it still seems implausible that my advice might be worth that much, think about how I have been warning about Argentina for the past year and a half; a company that had listened to me and reduced its exposure would be rather grateful, don’t you think? Instead, of course, I gave the advice for free in the Times.

        The point is that the money Enron offered wasn’t out of line with what companies with no interest in influence-buying were offering me. You may think I was overpaid, but the market – not Enron – set those pay rates.

        When I accepted the position at the New York Times, I severed the Enron connection, and also dropped any paid speaking and consulting that might violate the strict Times conflict-of-interest rules.

        My critics, ignoring the fact that I have been extremely tough on Enron, seem desperate to find something unethical in all of this. Sorry: there’s nothing there.

        For a further note about academics and consulting, click here . Also, a note about how some people have managed to misread what I wrote. — Paul Krugman

        1. I’m sure Diane and Peter take just everyone’s apologia at face value.

          1. Tabby, what the hell does Krugman have to do with Whitaker???

            This is another example of how right-wing media dumbs-down conservatives. Conservatives are forever making false equivalencies. ‘It’s not about Trump, it’s about Obama’. ‘It’s not about Betsy DeVos, it’s about Eric Holder’. It’s not about Whitaker, it’s about Paul Krugman!’

            If false equivalencies are the only way to address certain matters, then the person making false equivalencies is essentially forfeiting the debate. In fact, no college debate tournament would ever allow false equivalencies from contestants.

            1. An earlier poster implied or stated that Whittaker served on the board of a company that was fined for bad behavior/potential crimes, A later poster showed that progressive demigod Paul Krugman worked for Enron then later The Kenyan. So, if Krugman worked for Enron and became a DNC progressive demigod, then Whittaker can be AG.

              1. Your Cartoon Highness,

                Paul Krugman is NOT the Acting Attorney General of The United States of America.

        2. “From my point of view this was much like a paid speaking engagement”

          There is a difference between being paid for a speaking engagement and lending one’s name.

          Then again HIllary and Bill have taught us the multiple ways of being paid for speaking engagements.

        1. Paul Krugman has nothing whatsoever to do with this.

          Happy Friday November 9th, 2018, Mr. PH. Mueller has an established habit of bringing indictments on Fridays. Trump is travelling to Europe ostensibly to celebrate the 100th anniversary of the end of World War I. However, Trump will be meeting with Putin to discuss Mueller’s grand jury information that Trump just got from Whitaker. When Trump comes home on Monday, Trump’s lawyers will have to rewrite every answer to Mueller’s interrogatories based upon Putin’s analyses of, and decisions about, Mueller’s grand jury information. What comes next after that remains to be seen through a glass darkly c/o Dr. Benson.

          1. Excerpted from the Marci Wheeler article linked above:

            Alternately, Trump could convince Attorney General Jeff Sessions, who has recused himself from the Russia investigation, to resign. Trump could replace him immediately with either Health and Human Services Secretary Alex Azar or Department of Transportation General Counsel Steven Bradbury, both Senate-approved officials who could take over temporarily under the Vacancies Reform Act. Both are reportedly under consideration to replace Sessions; both could fire Mueller if named attorney general.

            [End excerpt]

            Trump had two Senate-confirmed officers, Alex Azar and Steven Bradbury, available to replace Sessions but chose Whitaker instead.

          2. Also excerpted from the Marci Wheeler article linked above:

            Some Freedom of Information Act requests have recently focused attention on—and may lead to the public release of—a report similar to the one Mueller is mandated to complete. It was the report done by Watergate prosecutor Leon Jaworski, referred to as the “Road Map.” The Road Map consists of a summary and 53 pages of evidentiary descriptions, each citing the underlying grand jury source for that evidentiary description. In 1974, Jaworski used it to transmit information discovered during his grand jury investigation to the House Judiciary Committee—which then used the report to kickstart its impeachment investigation.

            Before Jaworski shared the Road Map, however, he obtained authorization from then-Chief Judge John Sirica of the D.C. Circuit Court. In Sirica’s opinion authorizing the transfer, he deemed the report to be material to House Judiciary Committee duties. He further laid out how such a report should be written to avoid separation of powers issues. The report as compiled by Jaworski offered “no accusatory conclusions” nor “substitute[s] for indictments where indictments might properly issue.” It didn’t tell Congress what to do with the information. Rather it was “a simple and straightforward compilation of information gathered by the Grand Jury, and no more.” Per Sirica, that rendered the report constitutionally appropriate to share with another branch of government.

            [End excerpt]

            Ms. Wheeler neglected to mention in that particular article what she has mentioned elsewhere; namely, that Jaworksi had a draft indictment of Nixon that included a charge of bribery for the payments to E. Howard Hunt who had led “The Plumbers” who had burglarized the Watergate offices of the Democratic Party Chairman whose name I can’t remember at the moment. But I do recall quite clearly that Bribery is specifically listed in the Impeachment Clause of The U.S. Constitution.

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