Constitutional Law, Politics, Society

OLC Declares Whitaker Appointment As Constitutional

Matthew_G._Whitaker_official_photoThe Justice Department’s Office of Legal Counsel is issued an opinion that states that the appointment of  Matthew G. Whitaker as acting attorney general is in fact constitutional.  I previously wrote that I believe that the federal Vacancies Reform Act does allow for the appointment. However, I have long viewed the Act itself as constitutionally questionable in its provision for a non-confirmed individual taking over an agency.  Moreover, I recently wrote how this move could present a novel way to undermine the position of Special Counsel Robert Mueller.  One fact revealed in the OLC memo is that, despite media suggestions that Whitaker was an impulsive move by President Trump, there was a request for review of legality of a Whitaker appointment before Sessions was pushed to resign.

The 20-page memo cites past practice and the 1998 Vacancies Reform Act as support for its position.  It notes that “As all three branches of government have long recognized, the president may designate an acting official to perform the duties of a vacant principal office, including a Cabinet office, even when the acting official has not been confirmed by the Senate.”  It  notes that Trump has made such an appointment six times President Barack Obama did it twice. President George W. Bush also made such an appointment.

For the reasons stated earlier, I do not find that analysis to be particularly compelling.  There remains the striking conflict with U.S. Const. art. II, § 2, cl. 2.  The plain-meaning of the appointments clause of the Constitution mandates that high level officials in the executive branch, called “principal officers,” require a presidential nomination and Senate confirmation. It seems odd that all of that is moot if Congress may allow a president to simply appoint, without confirmation, other “inferior officers,” as they see fit.

This is why the usual approach is to follow federal law on succession and select the Deputy Attorney General. The Attorney General Succession Act, 28 U.S.C. § 508, currently provides:

“(a) In case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office, and for the purpose of section 3345 of title 5 the Deputy Attorney General is the first assistant to the Attorney General.

(b) When by reason of absence, disability, or vacancy in office, neither the Attorney General nor the Deputy Attorney General is available to exercise the duties of the office of Attorney General, the Associate Attorney General shall act as Attorney General. The Attorney General may designate the Solicitor General and the Assistant Attorneys General, in further order of succession, to act as Attorney General.”

This provision is at the heart of the recent challenge to Whitaker’s authority in Maryland, though the Act speaks of how a Deputy Attorney General “may exercise” such authority — not that it is the exclusive succession option. For that reason, I previously maintained that the White House could rely on the Federal Vacancies Reform Act.  The OLC reaches the same conclusion that the Act “remains available” as an alternative for an appointment.

The OLC takes a novel reading (against based heavily on historical practice) that, while the Attorney General is a “principal officer” requiring confirmation, an acting Attorney General is an “inferior officer” because he is only temporarily in the office. I have long been a critic of such historical practice arguments being used as interpretive devices against the plain meaning of the Constitution.  However, as noted earlier, is an unresolved issue and the OLC opinion makes for an interesting and, at points, a compelling read.

Here is the OLC opinion: OLC-Opinion-on-Matthew-Whitaker-Appointment

72 thoughts on “OLC Declares Whitaker Appointment As Constitutional”

  1. Wait. You mean only lawyers can read the Constitution and other people can’t?

    That dudn’t make any sense!

  3. WHITAKER HAD UNUSUALLY LIGHT RESUME..

    WHEN APPOINTED BY BUSH AS U.S. ATTORNEY IN IOWA

    SINCE BUSH LEFT OFFICE, WHITAKER HAS BARELY PRACTICED LAW!

    Whitaker’s legal career is largely centered on his years as U.S. Attorney in Iowa. A position for which he wasn’t truly qualified. Before that appointment, Whitaker’s legal career had been limited to just a few lawsuits.

    Since Bush left office, Whitaker’s career has been mediocre by Washington standards; hardly the stuff of cabinet appointees.

    https://www.washingtonpost.com/investigations/whitakers-unusual-path-to-justice-department-included-owning-day-care-center-trailer-maker-and-concrete-supplier/2018/11/14/e71cbba0-e6b5-11e8-bd89-eecf3b178206_story.html?utm_term=.951a322d6fe6

    1. If you’ll recall, Mr. H, Kavanaugh famously opined that The POTUS could decide not to enforce any Act of Congress that The POTUS deemed to be unconstitutional. Whitaker famously opined that Chief Justice Marshall incorrectly decided his landmark decision in Marbury versus Madison that declared the Judiciary Act of Seventeen Something or Other unconstitutional because Congress had over-extended the appellate jurisdiction of the Supreme Court beyond its constitutional limits to include the original jurisdiction of the U. S. District Courts.

      What may be going on here is an attempt by Counsel to the President, Emmett Flood, to put Whitaker’s opinion and Kavanaugh’s opinion together for the sake of shutting down the U.S. Attorney for the Southern District of New York as well as shutting down the Office of the Special Counsel.

      If so, then the time to panic, for real, may well be nigh.

      1. L4Yoga/Annie/Inga enables David Benson, and the NPCs R. Lien and Marky Mark Mark – Whitaker is not the only person who thinks that Marbury v Madison was wrongly decided. I think so, too. I am sure there are tens of thousands of us who have actually read the case and the history of the case and still cannot figure out where he got the balls to do what he did.

  4. Off topic, but interesting . . . “Michael Avenatti arrested on suspicion of domestic violence” https://www.cbsnews.com/news/michael-avenatti-arrested-for-domestic-violence/

    This presents a potential dilemma for those who argue that any purported victims of abuse or violence who come forward must be believed. However, I fully expect this matter will be hushed up by the media and that the social justice “warriors” will proclaim that an exception must be made in this case and that all the facts “aren’t in”–as though that mattered before.

  5. OT:

    https://twitter.com/radleybalko/status/1062777848187027456

    Radley Balko
    ‏
    Verified account

    @radleybalko
    Follow Follow @radleybalko

    More Radley Balko Retweeted S. Lee Merritt, Esq.

    This story is crushing. Roberson, who wanted to be a cop, showed precisely the sort of restraint we should demand from police. But we don’t. And so Roberson is dead.Radley Balko added,
    S. Lee Merritt, Esq.

    @MeritLaw

    But to law enforcement … despite his heroism, his gun license, his security attire, the crowd of people screaming he was one of the good guys— he was a black “suspect with a gun”. He was target practice.

    https://twitter.com/meritlaw/status/1062685801191038977 …

    10:42 AM – 14 Nov 2018

  6. The Constitution provides the authority to appoint solely to the President.

    The Constitution does not provide the authority to appoint to any other office, department or branch.

    A candidate is appointed to executive the duties of the office.

    A candidate is not appointed to NOT execute the duties of the office.

    The Constitution provides the authority to confirm or deny appointments to the Senate.

    The Constitution does not provide the authority to confirm or deny appointments to any other office, department or branch.

    The Constitution provides full authority, including that of the time and date, to the President and Senate respectively.

    The Constitution does not provide full or any authority, including that of the time and date, to any other office, department or branch.

    Next question.

  7. Mr. Turley, I see nothing in Art II Sec 2 Cl 2 describing “principal officers”. Your interpretation?

    1. It’s the converse of ‘inferior officers’ which is explicitly mentioned:

      “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.”

    2. Robert “Nifong/Duke Lacrosse” Mueller shall be indicted for “malicious prosecution” and conspiracy.

  9. In other news,

    the portly and short hubby of hotwife Kellyanne Conway, insufficiently busy at work, and nothing fun to do after work, has launched a group that he hopes will rival the Federalist society, but probably not. Likely to soon fail, we won’t be reporting back when it does.

    https://www.breitbart.com/politics/2018/11/14/george-conway-launches-anti-trump-group-for-conservative-attorneys/

    “conservative lawyers” are warned not to waste billable hours or post tax dollars on this lame group of erstwhile Trump-critics, or else it will tarnish your name forever, and mark you as a lame goof like whatsisname , who may be fishing for a Soros grant for all we know.

    2. I never cease to be amazed that Trumpsters like you cannot disagree with someone without resorting to personal insults.

      2. anyhow i’m usually polite to other users here, but if people want to roll in the mud i can wrestle

        if you want to cross verbal swords with me at least have the fortitude to pick a fake name so I know which skittering insect from under the oven I’m talking down to next time “anon”

      3. Hey programmer. Attention span problem? Are you important? To whom?
        REJECTED.

  10. The Dums new mantra from Collude to Recuse of course not the guy who should recuse, R Rosenstein. Anytime the Dums think someone may shine light on the Dums scream “Recuse”. I wish the GOP would play the game as tough as the Dums.

    1. Republicans are too timid. They are afraid the New York Times might not like them, and say mean things about them. Like good wrestlers who are a afraid to pick up the folding metal chair and whack the bad wrestler right back over his head.

      Plus, a lot of Republicans are upper middle class white folks, and have the same basic opinions as white upper middle class Democrats, and only pretend to believe certain things to keep themselves in office.

      As a result, the Republicans will pussy themselves out of business.

      My God, where is Lee Atwater when you need him???

      Squeeky Fromm
      Girl Reporter

      1. Squeaky, you are right, but my question is what happened in the midterms? A lot of Republicans left the House or were defeated and replaced. Are the new Republicans more likely to stand up for Republicanism than the old ones? If so that is a plus. The Democrats seem to be showing a fissure between the left and the very far left. Some Dems ran as centrists and won. Will some of them remain centrists and not much different than some of the Republicans that are no longer there? Will the left wing public push for the far far left or will they push for the moderate leftists? In the next election will we find that some of that far far left is way out of synch with what Democrats believe? The blue wave never appeared.

        All of this leads me to believe that the next election might move us towards conservatism.

        (by the way there seems to be another Allan on the blog. This Allan the one that usually posts.)

          1. Kurtz, is that a new Olympic event, scaling walls? It will lkely be a male event since most on both sides of the wall are males. We can predict the winners based on the flags we see on the other side of the border.

            1. if you try and enter china like that you get shot

              and they hardly ever grant citizenship to a nonchinese. only in theory.

              https://www.quora.com/How-hard-is-it-to-immigrate-to-China

              and yet, Silicon Valley, which buys all its stuff from China, and kisses the Chicom butts and ignores their political repression which makes anything here pale by comparison, ridicules trump and deplatforms his fans. why? maybe they’ve got a plan to migrate themselves, let america be over run

              https://www.bloomberg.com/features/2018-rich-new-zealand-doomsday-preppers/

              1. If you enter most countries like that you can get shot.

                People leaving their home countries do so because the political culture in those countries was not to their liking. The problem is that some of those people wish to bring that political culture with them.

                I take note that people from Venezuela want to come here, yet the leftists that support Venezuela’s type of government don’t want to go there.

              2. im not so sure it’s an old picture. i think it’s a new one. of course it happens ever day, but let me ask since you said so. how do you know?

          2. Hey Kurtz, what do you mean future. I’m sure many of them have already voted in Florida along with Big Foot, King Kong and your uncle Tutti who died 20 years ago. If this is our future voters there will be an American Caravan heading south to where these illegals are coming from. If that happens these illegals won’t have anyone to support them.

        2. What happened in the midterms? Fatso got trounced, that’s what. Wanna know why? Because Americans overwhelmingly do not approve of him. They see through the racist and xenophobic rhetoric and know it’s wrong. They see the daily lying and the constant vainglory rallies to soothe Trump’s tender ego, and it disgusts them. They see through the claims of tax cut victory, because they know that the very wealthy are the main beneficiaries, and that Medicare, Medicaid and Social Security will pay for the cuts, which will hurt us all in the long run. They see that the deficit is growing, contrary to false predictions that the stimulus to the economy would more than offset it. They see agency heads who have agendas that are contrary to the mission of the agency, such as the EPA and Department of Education. They also know that Republican candidates are lying about protecting pre-existing conditions, and that they have no alternative health care plan. They saw their voting record wherein they voted to repeal the ACA and then lied about wanting to protect coverage for pre-existing conditions. Americans overwhelmingly approve of the ACA. Americans overwhelmingly want Mueller left alone to do the job he was hired to do, and sick of the posturing and game-playing. Real Republicans believe in responsible government, and they know that massively increasing the deficit hurts us all in the long run.

          1. “What happened in the midterms? Fatso got trounced”

            Delusional! The final product was within the parameters of what would normally be expected. The blue wave predicted did not appear. Those predicting a blue wave were apparently delusional as well.

            I didn’t bother with reading the rest of your post because of your inability to focus on a singular point. We see this in people that are high on drugs or alcohol or when they are demented. We also see this in emotionally unstable people so I am trying not to enable your fantasies.

          2. ANON, you don’t speak for “Americans”

            but you do speak for migrants like these below! these people think Trump is racist too. invaders from central america, they’ve arrived and are happy with the Democrats who promise them taxpayer largesse in exchange for future votes

            https://www.youtube.com/watch?v=JwdR0SkuxDc

            Agent Orange, why didn’t you build the wall yet? A fence like that won’t do! BUILD THE WALL!

          3. Ha ha “racist, xenophobia” when your cornered bring out the old chestnuts ha ha ha you’re funny.

          4. Natacha – Trump lost fewer seats in the House than Obama and gained seats in the Senate. Obama lost both. Now he has Pelosi and Schumer as punching bags. Life is good.

        3. I hope not. We just moved into the Constitutional center and are busy dusting and mopping the unused space.

          1. Hope not what? We are far from a Constitutional center and it appears a lot of the youth do not know what the Constitution says, why socialism failed and how Obama and the left are abusing our Constitutional rights, in particular freedom of speech.

        4. I hope that you are right, but it is like a football team to me. If the coaching staff constantly disses the coach, and the team is not performing at its best, then only the die hard fans are likely to go to the game. OTOH, if the team gets its poop in one sock, and starts performing at a high level, then the enthusiasm spreads beyond the die hard fans.

          Squeeky Fromm
          Girl Reporter

      2. MIgrants aren’t timid. That’s why Democrats like them. They take what they want. Here, watch the fresh footage of the caravan “women and children” er um young men actually “enter without inspection” Ie scale the weak border fence

  11. The Attorney General Succession Act (a) says ‘may’ rather than shall exercise while (b) contains ‘shall’ provided certain conditions exist [which do not] -> thus the Federal Vacancies Reform Act becomes the authority for temporary filling of positions [which was done].

  13. Seems to me that YOUR belief that the POTUS does not have the authority to appoint who he want’s as an acting or interim AG or any other cabinet position, seems to fly in the face of the authority of the POTUS, and is now considered unconstitutional.

    Are you really Professor Turley writing these articles, or an acting or interim editor of this blog site? And no matter what you say, how would the readers really know?

    Your opinion offered in a prior article whereby you stated that the interim appointment was unconstitutional, made no sense, unless this all too common practice by prior POTUS were also unconstitutional. So, which is it?
    AND why now is this practice supposedly unconstitutional?

    So now, the appointment of an acting attorney general (or other cabinet level position) is in fact constitutional? But you previously wrote that “I believe that the federal Vacancies Reform Act does allow for the appointment. However, I have long viewed the Act itself as constitutionally questionable in its provision for a non-confirmed individual taking over an agency.” WOW. Talk about a circular firing squad.

    But you left out one or two most important words in this conversation – and they are ‘acting, or interim’. What’s up with this rather misleading statement? IMO, this is a sin of omission. And a poorly disguised one at that.
    How many times does the current POTUS have to say that he wants to see the Mueller investigation completed? And for the reason that he stated – to clear his name. How many previous opportunities did the POTUS have to fire Mueller? And didn’t.

    Since there was already a review by the DOJ – OLC for legality of a Whitaker appointment before Sessions was pushed to resign, seems to beg the question of who are you?

    1. Bob Miller, Turley has a pet theory that a federal judge could issue an injunction against Mueller exercising the powers of a U.S. Attorney if the Vacancies Reform Act, itself, were found to be unconstitutional; such that, Whitaker could not supervise Mueller and neither could Rosenstein nor Francisco while Whitaker remained as Acting Attorney General. Turley studiously overlooks the possibility that, were his pet theory true, any other federal judge could issue an injunction against any U.S. Attorney exercising the powers of a U.S. Attorney while Whitaker remained as Acting Attorney General.

      One of the differences between Special Counsels versus U.S. Attorneys is that the latter are Senate confirmed, the former is not. Turley seems to think, or else is pretending to think, that Senate confirmation somehow makes U.S. Attorneys principal officers. Turley is wrong about that. U.S. Attorneys are inferior officers just like Special Counsels. What makes a principal officer a principal officer is that they report to, and are supervised by, The POTUS, and only The POTUS. Both U.S. Attorneys and Special Counsels are supervised by, and report to, The Attorney General and The Solicitor General, both of whom are principal officers.

      Either Turley knows that he’s wrong or he doesn’t. Either Turley is playing Three-Card Monte with his blawg hounds or Turley is merely confused. BTW, the real Three-Card Monte dealer behind the Whitaker appointment is Emmett Flood to whom the OLC’s memo is addressed.

    1. No kidding, Squeeks. And Turley is leading the charge of trashing Trump for anything and everything, real or imagined.

      1. I think some of Turley’s posts are written by one of his students, who is into all things Democratic.

        I realize that Turley must walk a fine line to not get himself exiled by the Left.

        Squeeky Fromm
        Girl Reporter

        1. he’s tenured. that’s big.

          and he’s got tons of name recognition and support from outside the ivory tower.

          he’ll stay polite but Turley is a whale compared to the average guppy perfesser

        2. In a separate comment I enquired of Mr. Turley where he conjured “principal officers” out of Art II Sec 2 Cl 2. Not impressed with his analysis this time around.

    2. If that’s true why are they stealing the GOP platform bit by bit but not ditching their own useless twiddle twaddle?

  15. As YOU may believe that Whitaker’s appointment may “present a novel way to undermine the position of Special Counsel Robert Mueller”

    The rest of US may believe Whitaker just might bring about justice on those who actually “colluded” with Russia

    …and for some strange reason Crooked Hillary comes to mind

      1. “What about those who actually “colluded” with Israel?”

        If wonder where Samantha’s mind drifted off to? How did Israel become suddenly involved with Whitaker? Since Samantha seems interested in what is happening in the middle east I will copy the headlines from the Jerusalem Post. “Despite rocket attacks, Israel continues delivering supplies to Gaza “. Gaza survives based on Israeli supplies while Hamas spends the millions provided on weapons, killing, rockets and turning children into bombs.

        “Live: Rocket sirens sound across Gaza border communities, continuing largest-ever barrage

        After 300 rockets were fired at Israel on Monday, an early-morning barrage of rockets were fired at Israel on Tuesday.

        IDF amasses troops along border with Gaza ahead of escalation

        “The IDF is determined to fulfill its mission of defending Israeli citizens, and is prepared and ready for a variety of scenarios, as necessary,” the army said in a statement.

        Reporter’s Notebook: On the border of Gaza

        I’ve been in the same spot next to Kfar Aza in 2014 during Operation Protective Edge. Then the fields were full of armored vehicles, bulldozers, Merkava tanks, and armored personnel carriers.

        Despite rocket attacks, Israel continues delivering supplies to Gaza

        According to reports there were five gas tankers, 30 fuel tankers and hundreds of other trucks with humanitarian goods that delivered their goods to Gaza.”

      2. What about it? BFD. Collusion is still not a crime and never was. Meuller could have said that from the beginning but the big bucks must have corrupted his brain and moral values?

    2. As Tucker Carlson said yesterday – Special Counsel is really just a handy way to settle political scores. If you backed the wrong horse, we can bankrupt and ruin you for no real reason at all.

  16. Kurtz, take note of the attorney’s name in https://jonathanturley.org/wp-content/uploads/2018/11/OLC-Opinion-on-Matthew-Whitaker-Appointment.pdf Then take note of those attorney’s that wouldn’t represent the President according to news reports. https://abovethelaw.com/2018/03/a-running-list-of-lawyers-and-law-firms-who-have-refused-to-represent-the-president-of-the-united-states/

    You were arguing with Fishwings and you were right and Fishwings wrong.

    1. i see. thanks. well fishhead is like a lot of these clowns just rebroadcasting somebody else’s verbal garbage, and talking gracelessly about things in which they’re poorly informed

  17. I think it is within the power of the President to appoint a successor on a temporary basis without the Senate.

  18. “Judicial Review” authority – determining constitutionality – is the jurisdiction of the Judicial Branch. The OLC is part of the Executive Branch, a political branch agency controlled by the Executive Branch White House. Judicial Review authority was based on Old English Common Law predating the U.S. Constitution. The landmark U.S. Supreme Court case “Marburg v. Madison simply made it official law in the United States.

      2. Al O’Heem,…
        – I think the more fiendish methods of torture, as shown in the video I linked, are now prohibited.

        1. Why not check back in when you are sure and don’t need a built in escape hatch.

    2. Silly schmuck! Once again you just blather out legal conclusions out of thin air without any sort of legal analysis. I wonder. Back when the birther thing was going on, were you one of those Two Citizen Parent Birthers who just went around pronouncing legalisms that were hardly relevant to anything???

      Do you refuse to get a driver’s license, or obey traffic laws?

      Squeeky Fromm
      Girl Reporter

        1. OK, and your point? If you have a point, then provide some analysis. Do you think you could go into a courtroom and just say something and not relate it to the case at bar???

          Sheeesh, do something besides just blather out nonsense. Are you capable of making a legal analysis? Are you capable of making a reasonable argument about something?

          If so, please demonstrate it. It doesn’t have to be long and involved. But at least something beyond blubbering out phrases and expecting people to mind read things. Jesus H. Christ, it is like if we were talking about voter irregularities in Broward County, and I said, “Dred Scott!”

          I mean there might be some nugget of a speck of something there, but who could make anything out of it.

          Squeeky Fromm
          Girl Reporter

          PS: FWIW, I thought Dred Scott was a great decision vis a vis the SCOTUS’s judicial restraint.

      2. Fromm squeaked, “Once again you just blather out legal conclusions out of thin air without any sort of legal analysis.”

        Fromm offered no legal analysis of Marbury versus Madison. Ashcroft’s Zersetzung offered at least the cursory analysis that Marshall’s decision in Marbury versus Madison established, amongst other issues, the power of the Supreme Court to declare Acts of Congress unconstitutional. Ashcroft’s Zersetzung further pointed out that The Justice Department’s Office of Legal Counsel does not have the power to declare Acts of Congress unconstitutional. The OLC merely advises The POTUS, or in this case, Counsel to the President, Emmett Flood, of the constitutionality of Executive acts.

        Meanwhile, Al O’Heem cast serious suspicion on the legal competence of the OLC during the Bush administration without directly deprecating the legal competence of Jay Bybee, John Yoo, nor even Brett Kavanaugh, at that time, the last of whom might someday contribute to almost any number of Supreme Court decisions on the constitutionality of almost any number of Trump’s executive acts.

        As for further legal analysis, would Ms. Fromm care to analyze the difference between original jurisdiction versus appellate jurisdiction that Chief Justice Marshall drew in his landmark decision in Marbury versus Madison? I ask because, if Whitaker can’t supervise Mueller, then Whitaker can’t supervise the U.S. Attorney for the Southern District of New York, either. Maybe the Whitaker appointment has at least as much to do with shutting down SDNY as shutting down the OSC. Eh Squeeky?

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