Criminal Justice & the Rule of Law

Matthew Whitaker's Appointment as Acting Attorney General: Three Lingering Questions

John E. Bies
Thursday, November 8, 2018, 10:04 AM

Is Whitaker’s appointment constitutional? Does the president have authority in this case to make an appointment under the FVRA? Does Whitaker have any recusal obligations related to the special counsel’s investigation?

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President Trump, acting under the Federal Vacancies Reform Act (FVRA), has appointed Matthew Whitaker, formerly the chief of staff to Attorney General Jeff Sessions, to serve as acting attorney general. There has been widespread coverage of the potential ramifications of this appointment for the special counsel’s investigation. But there are three lingering questions about this appointment that have not yet been answered in public: First, is the appointment constitutional? Second, does the president have authority to make an appointment under the FVRA when there is a confirmed deputy attorney general who can act under a specific statute governing Department of Justice succession (28 U.S.C. § 508)? And third, does the acting attorney general have any recusal obligations in relation to the special counsel’s investigation in light of his past statements and relationships? (The order appointing the acting attorney general was presumably reviewed and approved by the Department of Justice’s Office of Legal Counsel for form and legality, so it may have opined on these questions, but the office has not published any opinion.)

Is the Appointment Constitutional?

The president’s decision to appoint a Department of Justice employee who is not Senate-confirmed to act as attorney general under the FVRA raises an esoteric but unresolved constitutional issue. The Appointments Clause of the Constitution provides that the president can nominate and, “by and with the Advice and Consent of the Senate,” appoint officers of the United States. It further allows that “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.” Consequently, while the clause permits Congress to authorize the appointment of “inferior officers” by the president alone or by the head of a department, it requires that any “principal officer” be appointed by and with the advice and consent of the Senate.

The attorney general—a Cabinet-level official who is the head of a major executive department and reports only to the president—is plainly a principal officer. The chief of staff to the attorney general, on the other hand, is an inferior officer appointed by the head of a department and not subject to the Senate’s advice and consent, so Whitaker has not been confirmed to his current position “by and with the advice and consent of the Senate.” While the FVRA allows the president to appoint another Senate-confirmed official to fill a vacancy, here the president has elected to rely on another FVRA provision that allows him to appoint a senior Department of Justice official who was not Senate-confirmed.

There remains an open question of whether it is constitutional to rely on of the FVRA to appoint an official not serving in a Senate-confirmed position to act as a principal officer, such as the attorney general. Some—including Justice Clarence Thomas—have argued that an acting principal officer must be appointed in conformance with the Appointments Clause, i.e., by and with the advice and consent of the Senate: “Appointing principal officers under the FVRA ... raises grave constitutional concerns because the Appointments Clause forbids the President to appoint principal officers without the advice and consent of the Senate.”

A 19th-century Supreme Court opinion does hold that a statute that permitted a diplomatic vice counsel to serve “for a limited time, and under special and temporary conditions” as counsel during the temporary absence of the counsel (a principal officer) did not somehow transform the vice counsel “into the superior and permanent official” in violation of the Appointments Clause.

Here, of course, Whitaker has been appointed only to act temporarily as attorney general until a new attorney general is appointed (by confirmation or during a recess), not to permanently serve as attorney general. But there are no limitations on his ability to exercise the full statutory powers and authorities of the attorney general, and practically speaking, Whitaker could serve as acting attorney general for most of the remainder of the president’s first term—although the FVRA typically limits acting appointments to 210 days, that time period can be extended if the president sends a nomination for another person to be attorney general to the Senate. In similar circumstances involving an acting agency official who had served for almost three years, Justice Thomas rejected any potential exception to the Appointments Clause’s requirements, saying “I do not think the structural protections of the Appointments Clause can be avoided based on such trivial distinctions.”

The Office of Legal Counsel has opined that someone acting in the role of a principal officer is nonetheless an inferior officer and, thus, does not require appointment by and with the advice and consent of the Senate in light of the temporary nature of the assigned duties. But the opinion precedes Justice Thomas’s 2017 concurrence, which takes a more functional view of whether an appointment is “temporary” when it can result in exercise of all of the office’s duties over a long period of time

If there is a constitutional infirmity to Whitaker’s appointment, it would be almost impossible for him for completely avoid taking actions that would confer standing on someone to litigate the validity of his appointment.

Can the FVRA Supplant the Justice Department’s Specific Succession Statute?

Accepting former Attorney General Jeff Sessions’s resignation at face value, there is little question that the appointment of the acting attorney general comports with the statutory requirements of the FVRA. The FVRA expressly provides that the president can appoint a long-serving senior official in the department to fill a vacancy in the department. Although some have argued that the FVRA does not apply where a federal official is fired rather than resigns, that seems like a difficult argument to make here—even if a court could be persuaded to adopt such an interpretation of the FVRA, it seems unlikely that a court would look past an official’s formal statement that they resigned to find a constructive firing that precluded the application of the FVRA.

More difficult is the question of whether the Department of Justice’s specific succession statute can be supplanted by a presidential appointment under the FVRA. Section 508 directly addresses Justice Department succession and provides that “[i]n case of a vacancy in the office of Attorney General, ... , the Deputy Attorney General may exercise all the duties of that office.” The statute further provides that if both the attorney general and the deputy attorney general are unavailable or unable to serve, the associate attorney general “shall act” as attorney general. The statute also authorizes the attorney general to “designate” the solicitor general and the various assistant attorney generals in “further order of succession.” Under the current attorney general order, the solicitor general is next in the line of succession.

Currently there is a confirmed deputy attorney general—Rod Rosenstein—but not a confirmed associate attorney general. Section 508 consequently provides that upon the vacancy in the office of attorney general caused by Sessions’s resignation, Deputy Attorney General Rod Rosenstein “may exercise all the duties” of the attorney general.

The FVRA acknowledges that it may not be the “exclusive means” for filling vacancies in Senate-confirmed positions if another statute like Section 508 expressly “designates” an officer or employee to perform the functions of the office in an acting capacity. But does the more general authority provided by the FVRA permit the president to supplant the acting attorney general designated by this department-specific statute? 

This is a complicated question, and has not yet been resolved—at least not in a published OLC opinion. A 2007 opinion of the Office of Legal Counsel addressing Section 508 and the FVRA involved circumstances where the positions of the deputy attorney general and the associate attorney general were vacant. Consequently, it only confronted the question of whether the supplemental order of succession designated by the attorney general under Section 508 could be supplanted by an appointment under the FVRA. Indeed, the opinion’s analysis rested in part on the view that it would be odd for the attorney general’s designation to take precedence over the president’s designation, reasoning that would not apply here.

As a matter of statutory interpretation, a specific statute would generally take precedence over a more general one. In some respects, the tenor of Section 508—directly imbuing the deputy attorney general with the authorities of the attorney general in the event of a vacancy, and further provides that the associate attorney general “shall” serve as acting attorney general if both the attorney general and the deputy are unavailable—suggests that Congress intended their respective places in the succession order to be mandatory. One can envision policy reasons for wanting to impose such a requirement. On the other hand, some of the language of Section 508—the fact that the deputy attorney general “may” rather than “shall” exercise the duties of the attorney general, and its clarification that the deputy attorney general “is the first assistant to the Attorney General” for purposes of the FVRA—could suggest that its application could be reconciled with the potential application of the FVRA.

Does the Acting Attorney General Have Recusal Obligations as a Result of His Past Statements and Relationships?

Whitaker’s prior public statements regarding the conduct of the special counsel’s investigation have been widely reported, as has his close relationship with at least one person, Sam Clovis, caught up in the investigation—Whitaker reportedly helped run a political campaign for Clovis and remains friends with him. Whitaker has also worked for the past year in an office that was recused from the special counsel’s investigation. It has been reported that, as of Wednesday, Whitaker had not sought or received any ethics advice regarding his participation in the special counsel’s investigation.

Whitaker’s past statements and relationships might implicate at least two ethics regulations.

First, as recently highlighted here on Lawfare, the Justice Department regulation that lead to Attorney General Jeff Sessions’s recusal might (ironically) be implicated here as well. It provides that no employee “shall participate in a criminal investigation or prosecution if he has a personal or political relationship” with “[a]ny person or organization substantially involved in the conduct that is the subject of the investigation or prosecution” or “[a]ny person or organization which he knows has a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution.”

Second, the Office of Government Ethics’ Standards of Ethical Conduct for Employees of the Executive Branch has a catch-all provision that provides that a government employee “who is concerned that circumstances other than those specifically described ... would raise a question regarding his impartiality” should seek formal ethics advice to determine whether he should or should not participate in a particular matter.

Without engaging in a full analysis of Whitaker’s recusal obligations, at a minimum it is clear that his past statements regarding the conduct of the special counsel’s investigation potentially “raise a question regarding his impartiality” under the catch-all provision that merits consultation with career Justice Department ethics officials. Likewise, his personal relationship with Clovis at a minimum raises questions that may implicate the department’s recusal provision. Whether he is obligated to recuse may turn on facts—such as the nature of his relationship with Clovis and whether Clovis is a witness, subject or target of the investigation—that are not publicly known. But the public facts make clear that Whitaker must consult with career department ethics officials regarding his participation in connection with the special counsel’s investigation before taking any steps to participate in that investigation. As highlighted here, Whitaker may also have other issues involving personal or political relationships that require ethics advice—depending on his relationship with Sessions and other potential witnesses to the special counsel investigation, as well as his past political activities.

John E. Bies is Chief Counsel at American Oversight, a non-profit focused on government accountability. He served for eight years in the Obama administration at the Department of Justice, first as Counselor to Attorney General Eric Holder and then spending seven years as a Deputy Assistant Attorney General in the Office of Legal Counsel where he advised White House and executive branch officials on FOIA, Congressional oversight, executive privilege, ethics, separation of powers, and other constitutional, statutory, and administrative law issues. Prior to his service in the government, Bies handled complex civil litigation and investigation and enforcement matters as a partner at Covington & Burling LLP and clerked for Judge Sandra Lynch on the First Circuit. He received his law degree with high honors from the University of Chicago Law School.

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