Matthew Whitaker’s unconstitutional appointment as acting attorney general is one of the most serious overreaches of the executive branch in a generation. President Donald Trump failed to seek Senate confirmation before installing Whitaker as the head of the Justice Department. This is a violation of the Appointments Clause and renders any action taken by the new attorney general subject to challenge.
We are coordinating the provision of significant pro bono attorney resources for people affected by this appointment. These resources include a hotline for people in disputes with the Justice Department, and attorney time to oppose actions taken by the Justice Department subsequent to Whitaker’s appointment. By challenging Whitaker’s appointment, we hope to preserve the Constitution’s requirement that the head of the Justice Department be someone who has actually been confirmed by the Senate.
We primarily focus on legal technology and research. We have welcomed collaborators including 18 law professors, 8 of whom were federal court clerks, and 3 of whom were clerks at the U.S. Supreme Court. Others included chairs of an ACLU chapter Legal Committee and of the federal courts section of the Association of American Law Schools. We typically hope to make a difference by publishing thoughtful legal analysis. Our work is routinely featured by major outlets such as The Washington Post, USA Today, and Forbes.
However, we are shifting focus to challenge Whitaker’s appointment in the courts because our rule of law and system of checks and balances are hanging in the balance. We cannot merely research. We have to act too.
As explained in detail below, we believe many people have the necessary “standing” to challenge this appointment if they have disputes (including immigration, criminal, or civil) with the Justice Department.
To get in touch with us about these pro bono resources, contact us here. If you are an attorney who would like to join the fight, contact us here. Note that volunteers are generally not available for the full scope of representation. Volunteering attorneys can likely only argue the specific questions pertaining to the unconstitutionality and illegality of Whitaker’s appointment.
Below, we discuss why this appointment is so egregious and why we are fighting it on a volunteer basis.
Why Whitaker’s Appointment is Unlawful
The law says: “The President shall appoint, by and with the advice and consent of the Senate, an Attorney General of the United States. The Attorney General is the head of the Department of Justice.” 28 U.S. Code § 503. In order to be the Attorney General, you must gain both the approval of the President and the majority of the Senate. This provides a much more complete opportunity to investigate, review, and approve a nominee. It is also a simple but powerful recognition that our Constitution requires the Attorney General’s appointment to be scrutinized not just by one person, who may himself have inappropriate biases or conflicts.
Another law deals with Attorney General vacancies. It says:
“(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.” 28 U.S.C. § 508
President Trump is likely relying on the Vacancies Reform Act of 1998. Under that statute, setting aside whether applying it to Whitaker’s appointment is Constitutional or not, the President can appoint someone to a position if they have served in the agency for 90 days within the prior year. However, this is a general statute not limited to the Justice Department. When there are two statutes, one that is broad and general as well as another that is very specific, it is typically that specific law that controls.
The Justice Department agrees. In one memo, it noted:
“Where the Court and this Office have faced apparent conflicts between two competing statutes, they have frequently resolved the question by applying the ‘rule of relative specificity.’ This ‘cardinal axiom of statutory construction,’ … holds that ‘[w]here there is no clear [congressional] intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment,’ … Under this rule, if ‘a general permission or prohibition is contradicted by a specific prohibition or permission,’ then ‘the specific provision is construed as an exception to the general one,’ absent strong ‘textual indications that point in the other direction.’ See https://www.justice.gov/olc/file/967496/download (internal citations omitted).
In the very specific statute addressing only Attorney General vacancies, Congress says that when neither the Attorney General nor the Deputy Attorney General is available, the Associate Attorney General “shall act as Attorney General.” When Congress uses the word “shall” and does not provide an exception, it is an explicit mandate that some action be performed. Both the Deputy Attorney General and the Associate Attorney General therefore have priority in the line of succession for the Attorney General’s office. Indeed, at least one of them “shall act as Attorney General” before Whitaker. If that does not happen, the law is plainly violated.
That means any function required to be performed or delegated by “the Attorney General” “shall” be performed or delegated by someone other than Whitaker. If Whitaker nonetheless signs his name as Attorney General to some order or document requiring the Attorney General, it is likely invalid because Whitaker is not the man who “shall” act in that capacity. It is exactly these functions that we are challenging.
Why Whitaker’s Appointment is Unconstitutional
Even if there was not a specific statute mandating a different Attorney General, the Constitution requires Senate confirmation of the Attorney General anyway. While Deputy Attorney General Rod Rosenstein was approved by the Senate for his post, Whitaker was not. Article II of the Constitution says the President “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.” Whitaker squarely falls under the definition of “all other Officers of the United States.”
The Supreme Court just this year held “Officers,” as opposed to mere employees, are those who occupy a “continuing” position established by law, and must “exercis[e] significant authority pursuant to the laws of the United States.” Lucia v. SEC, 138 S.Ct. 2044, 2047 (2018). The attorney general, even one who is ambiguously labeled by Trump as “temporary” or “acting,” falls squarely within this definition.
First, the position is continuing. Whether you label the position “attorney general” or “acting attorney general,” Whitaker might hold this position for months or possibly years while Trump and the Senate argue over a different replacement. It is easy to see Trump nominating a parade of loyalists who disagree with the breadth of the Special Counsel’s investigation, only to be rejected by the Senate. In the interim, Trump gets exactly that in the form of Whitaker.
Further, Whitaker’s decisions will have “continuing” and major effects on some of the most important law enforcement questions of our time. For example, Whitaker could offer Trump or his family highly generous plea agreements that reduce all of their alleged criminality down to a minor misdemeanor. Sessions was recused in the Trump-Russia investigation, but Whitaker is not. So Whitaker could interfere with the Special Counsel or even fire him.
Second, the Attorney General exercises tremendous authority under our laws. The law is that: “All functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General except [three categories, dealing with judges and Federal Prison Industries, Inc.].” 28 U.S. Code § 509. Many federal agencies are led by committees. Not so with the Justice Department. The power of this extremely important law enforcement agency almost exclusively derives from the Attorney General. The Attorney General is seventh in the line of presidential succession. Whitaker unambiguously exercises the kind of power required to be considered an “Officer.”
Third, there is a distinction between “principal officers” and “inferior officers.” An inferior officer is someone “whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.” Edmond v. United States, 520 U.S. 651, 663 (1997). Congress may be statute delegate power to the President to appoint inferior officers, but not principal ones. Here, Whitaker plainly does not report to anyone but the President. He is not accountable to any intermediate party that has been vetted and confirmed by the Senate. So, he is a principal officer that must be confirmed by the Senate.
This does not mean we go without an official in charge of the Justice Department while we wait for a new appointment. It just means the official in charge of the Justice Department is someone Trump does not like. Trump foe Rod Rosenstein, the Deputy Attorney General, is the officer entitled to exercise the authority of attorney general. The law says that, “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.” 28 U.S. Code § 508. Rosenstein himself was appointed by the President and confirmed by the Senate. He has therefore gone through the gauntlet of Senate investigation, review, and consent. According to a Justice Department memorandum, Rosenstein is therefore eligible to be the acting attorney general without re-appointment and re-confirmation. https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1178&context=lcp.
Jeff Sessions was appointed by Trump and confirmed by the Senate to be Attorney General. Acting as his supervisor, Trump requested Sessions’ resignation. Trump cannot unilaterally fire a Senate-approved Attorney General and then replace him with someone more loyal who has never received Senate approval. This Constitutional requirement is especially important given that the Justice Department houses the Special Counsel’s investigation into Trump himself.
Some people may speculate that the Supreme Court, now decidedly “conservative” in leaning, may rubber stamp Trump’s installation of Whitaker. Last year, the Supreme Court determined whether an “acting general counsel” of the National Labor Relations Board needed Senate approval. In a concurring opinion by Justice Clarence Thomas, he questioned: “Whether directing Lafe Solomon to serve as acting general counsel of the National Labor Relations Board (NLRB or Board), without the advice and consent of the Senate, complied with the Constitution. I write separately to explain my view that the Appointments Clause likely prohibited Solomon’s appointment.” NLRB v. SW General, Inc., 137 S.Ct. 929, 945, (2017) (THOMAS, J., concurring).
Trump’s hotly contested appointment of Justice Brett Kavanaugh almost failed after allegations of sexual assault surfaced. However, that is clearly no excuse for disregarding Senate approval of appointments going forward. The Attorney General must be someone who has been confirmed by the Senate.
Who Has Standing to Challenge Whitaker’s Appointment
A common legal concept is the notion of “standing.” It basically means not just everyone can go to Court and argue someone else did something illegal. In order to make that argument, the person needs to have some personal stake in the outcome. However, many people likely have standing to challenge Whitaker’s appointment.
The Justice Department and its officials represent the United States in countless legal issues. For example, civil lawsuits, criminal prosecutions, and immigration issues are all commonly handled by the Justice Department. However, the Justice Department is not headed by a committee. When it acts, it often does so via the Attorney General himself.
As stated above, the law is that: “All functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General” with few minor exceptions. 28 U.S. Code § 509.
Similarly, the law states, “Except as otherwise authorized by law, the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General.” 28 U.S.C. § 516. This means almost all of the operation of the Justice Department is personally supervised or conducted by the Attorney General.
Many statutes refer not to a “Justice Department” but rather to the Attorney General specifically. If the President and someone else (but not the Senate) proclaim someone is the Attorney General, that does not make it true or valid. Further, if that person uses his purported power to harm a third party’s interests, the third party likely has the opportunity to contest the validity of the appointment.
A few examples of the law delegating power to the Attorney General specifically (as opposed to the Justice Department generally) include:
Immigration (of particular interest to us):
- “On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.” 8 U.S.C. § 1226
- “Any officer or employee of the Service designated by the Attorney General, whether individually or as one of a class, shall have power and authority to administer oaths and to take and consider evidence concerning the privilege of any person to enter, reenter, pass through, or reside in the United States.” 8 U.S.C. § 1357(b).
- “Except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days” 8 U.S.C. § 1231
- “The Attorney General is authorized to cancel any certificate of citizenship, certificate of naturalization, copy of a declaration of intention, or other certificate, document or record heretofore issued or made by the Commissioner or a Deputy Commissioner or hereafter made by the Attorney General if it shall appear to the Attorney General’s satisfaction that such document or record was illegally or fraudulently obtained…” 8 U.S.C. § 1453
- “In the event the Attorney General determines that an actual or imminent mass influx of aliens arriving off the coast of the United States, or near a land border, presents urgent circumstances requiring an immediate Federal response, the Attorney General may” delegate responsibility to local law enforcement. 8 U.S.C. § 1103.
- “The willful failure of a prisoner to remain within the extended limits of his confinement, or to return within the time prescribed to an institution or facility designated by the Attorney General, shall be deemed an escape from the custody of the Attorney General punishable as provided in chapter 35 of this title.” 18 U.S.C. § 4082
- “Whenever the Attorney General of the United States has brought an action under the antitrust laws, and he has reason to believe that any State attorney general would be entitled to bring an action under this Act based substantially on the same alleged violation of the antitrust laws, he shall promptly give written notification thereof to such State attorney general.” 15 U.S.C. § 15f
- “The Attorney General may bring a civil action against any State or jurisdiction in an appropriate United States District Court for such declaratory and injunctive relief (including a temporary restraining order, a permanent or temporary injunction, or other order) as may be necessary to carry out the uniform and nondiscriminatory election technology and administration requirements under sections 21081, 21082, and 21083 of this title.” 52 U.S.C. § 21111
- “The Attorney General may promulgate and enforce any rules, regulations, and procedures which he may deem necessary and appropriate for the efficient execution of his functions under this subchapter.”
These are just a few diverse examples out of many that illustrate that the Attorney General is personally tasked with a wide range of duties. In any event, it is clear that a great deal of people will have disputes with “the Attorney General.” All of these people are likely able to ask the Court to rule on the legitimacy of the person claiming to be the valid occupant of the office.
The Next Steps
People are naturally dismayed by the news of the Whitaker appointment. However, even if something new and terrible happens next week, we cannot lose sight of the fact that the main law enforcement officer in our country was not confirmed by the Senate. We cannot allow that person supervisory control over the Special Counsel investigation or the countless other duties conducted by the Justice Department.
If you are being sued, prosecuted by, or suing the Attorney General, we want to connect you with volunteer resources. If you are an attorney who wants to be such a volunteer, you can do the country a huge service by litigating these issues. Together we can restore the checks and balances that have brought balance and the rule of law to our country.
Alexander Stern earned his Doctor of Law degree from UC Berkeley School of Law. He is an attorney and the founder of the Attorney IO family of companies.