Conway's Husband: Trump Appointment of the Acting Attorney General Is Unconstitutional

Trump sycophant  and illegally appointed acting AG Matthew Whitaker (who seemingly is trying for the Mussolini look).

Not to diminish the horror of the mass shooting in Thousand Oaks, California  - or the need for the Democrat controlled House to pass gun legislation come January, 2019 - Donald Trump is deliberately causing a Constitutional crisis as he ignores the U.S. Constitution's requirements and (i) seeks to place an unfit (in my view and that of many others) individual in the office of Attorney General and (ii) in all likelihood seeks to kill the Russiagate investigation of his own potential wrongdoing.  The move is something one would expect of Vladimir Putin, Josef Stalin or some other self-absorbed dictator.  Ironically, in today's New York Times the husband of Kelly Anne Conway - one of Trump's skanks-in-chief in my view - a noted DC attorney in his own right co-authored a column that flat out calls Trumps appointment of Trump sycophant Matthew Whitaker unconstitutional.  Trump, of course, has always viewed himself above the law as demonstrated by his years in New York City working with the mob and then the Russian Mafia.  It should come as no surprise that Trump holds constitutional requirements in contempt.  Here are column highlights:

What now seems an eternity ago, the conservative law professor Steven Calabresi published an op-ed in The Wall Street Journal in May arguing that Robert Mueller’s appointment as special counsel was unconstitutional. . . . . He argued that Mr. Mueller was a principal officer because he is exercising significant law enforcement authority and that since he has not been confirmed by the Senate, his appointment was unconstitutional. As one of us argued at the time, he was wrong. What makes an officer a principal officer is that he or she reports only to the president. No one else in government is that person’s boss. But Mr. Mueller reports to Rod Rosenstein, the deputy attorney general. So, Mr. Mueller is what is known as an inferior officer, not a principal one, and his appointment without Senate approval was valid.

But Professor Calabresi and Mr. Trump were right about the core principle. A principal officer must be confirmed by the Senate. And that has a very significant consequence today. It means that Mr. Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.

Much of the commentary about Mr. Whitaker’s appointment has focused on all sorts of technical points about the Vacancies Reform Act and Justice Department succession statutes. But the flaw in the appointment of Mr. Whitaker, who was Mr. Sessions’s chief of staff at the Justice Department, runs much deeper. It defies one of the explicit checks and balances set out in the Constitution, a provision designed to protect us all against the centralization of government power.

If you don’t believe us, then take it from Supreme Court Justice Clarence Thomas, whom Mr. Trump once called his “favorite” sitting justice. Last year, the Supreme Court examined the question of whether the general counsel of the National Labor Relations Board had been lawfully appointed to his job without Senate confirmation. The Supreme Court held the appointment invalid on a statutory ground.

Justice Thomas agreed with the judgment, but wrote separately to emphasize that even if the statute had allowed the appointment, the Constitution’s Appointments Clause would not have. The officer in question was a principal officer, he concluded. And the public interest protected by the Appointments Clause was a critical one: The Constitution’s drafters, Justice Thomas argued, “recognized the serious risk for abuse and corruption posed by permitting one person to fill every office in the government.” Which is why, he pointed out, the framers provided for advice and consent of the Senate.

What goes for a mere lawyer at the N.L.R.B. goes in spades for the attorney general of the United States, the head of the Justice Department and one of the most important people in the federal government.

We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design. Senate confirmation exists for a simple, and good, reason. Constitutionally, Matthew Whitaker is a nobody. His job as Mr. Sessions’s chief of staff did not require Senate confirmation. (Yes, he was confirmed as a federal prosecutor in Iowa, in 2004, but Mr. Trump can’t cut and paste that old, lapsed confirmation to today.) For the president to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document.

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.

[T]he 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.

Very well said and accurate.  One can only hope that Senate Republicans will remember that thir oath is to the U.S. Constitution and NOT to Der  Trumpenführer.