The Legality of the Appointment of Matthew Whitaker: Dueling Memos

The legality of the appointment of Matthew Whitaker as Acting Attorney General has been questioned.

I have posted the memorandum filed yesterday in federal court by the State of Maryland challenging his appointment.

I have also posted the memorandum filed by the Justice Department Office of Legal Counsel defending the legality of his appointment.

I will try to update this as further developments warrant.

23 thoughts on “The Legality of the Appointment of Matthew Whitaker: Dueling Memos”

  1. Let me see if I’ve got this right.

    Somebody (or several somebodies) at a Federal Department have produced a memo supporting their boss. In particular, supporting the position that it’s OK that he is their boss.

    And we should give this how much weight?

    1. That’s not fair. I haven’t read the Justice Department’s memo and take no position on it. But a legal memo can be evaluated objectively. Its arguments can stand or fall on their merits, regardless of their author. And, on this particular question, a respected and disinterested law professor has taken the position that Whitaker’s appointment was legal, “as troubling as [it] may turn out to be for the rule of law.” https://www.nytimes.com/2018/11/09/opinion/trump-attorney-general-constitutional.html

  2. Not fair? Give me a break. First of all, my original note was a mild snark. I prefer that to the kind of wild rant, filled with capital letters and exclamation points, that our Tweeter-in-Chief is fond of. I think a mild snark to make a point is generally fair, so long as it isn’t directed at someone’s disability or some such.

    But more importantly, I HAVE red the Justice Department memo, and IMO it’s a crock. It mentions that they found 160 cases prior to the Civil War to support its position that “this is normal course of business.” Wow, I’m supposed to be impressed with that?

    But they left out one little fact that they deliberately overlooked in their paper, but which they inadvertently allowed to show itself, in some moments of carelessness. Look at this sentence:

    “The Supreme Court confirmed…in U.S. v Eaton (1898)…an inferior officer may perform the duties of a principal officer…without transforming his office into one for which Senate confirmation is required.”

    Reading the rest of the opinion, a concept keeps showing through–the President can bypass the next-in-line in the chain of command to pick somebody lower in the chain. Notice the phrase “inferior officer.” Elsewhere we find several mentions of “official” in the opinion.

    Now look at Matthew Whitaker’s position–Chief of Staff to the A.G. He’s not an officer of the department. He’s not in the chain of command of the department. He’s not an official of the department. He can’t be promoted to the position of A.G., because he’s not in the line of succession for prootion to the position. He’s the head of Sessions’ staff. He doesn’t fit all those references in the Justice Department’s “pro bono” memo.

    Pro bono, from the Latin phrase pro bono public–for the public good. Give me a break. The public good? Not any more. In this case, pro bono is from the Latin phrase pro bono Trumpo. You can figure that one out.

  3. So I gather that an appointment such as Whittaker’s would be ok in a cabinet departments other than DOJ, but DOJ is an exception requiring appointment of a Senate-confirmed official (and in fact a designated official, i.e., the Deputy AG), even temporarily. If so, it sounds like the folks who wrote that rule were very wise.

    1. And if the injunction request is accurate, it is disturbing that the DOJ memo leaves out mention of the exception. Could this constitute a civil offense in itself?

  4. It’s not clear that an equivalent appointment would be OK in any department. SecNav quits; Prez appoints Asst SecNav to fill the position. Sure, she’s been Senate-Approved before.

    Oops, she turns down the appointment. Prez goes one deeper in the chain of command, picks Deputy Asst SecNav for Manpower and Reserve Affairs. Has she had prior Senate approval? I don’t know. But I do know she’s a lower Officer in the Department.

    But instead, suppose the Prez picks the head of the Select Panel of Advisors on Strategy and Tactics. Oops. That person might be highly capable, but IMO he doesn’t pass muster. He wasn’t previously approved by the Senate AND he wasn’t a lower Officer in the Department.

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