Report: DOJ to issue legal opinion supporting constitutionality of Whitaker appointment as acting AG

Not very newsy, except insofar as it avoids a very newsy alternative. Imagine if the Department had issued an opinion that the president’s choice as temporary top dog couldn’t lawfully serve in the role.

That would have been a busy, and angry, day on the ol’ presidential Twitter feed.

The real action here will be in court, of course. And that will come soon.

The department’s Office of Legal Counsel is expected to say that President Trump had the ability to appoint Mr. Whitaker, the person said. Mr. Whitaker took over last week as an interim successor to former Attorney General Jeff Sessions when Mr. Sessions was ousted by Mr. Trump.

The opinion is expected to support the Trump administration’s position that the president’s authority to tap Mr. Whitaker is affirmed by guidance the office issued in 2003. At that time, the office concluded that President George W. Bush could name a non-confirmed employee of the Office of Management and Budget as the agency’s acting director.

The OMB director, like the attorney general, is a principal officer of the federal government. The 2003 opinion avoided that problem by defining an acting director as an “inferior officer,” who under Supreme Court precedent doesn’t require Senate approval to be appointed.

Here’s the 2003 OLC opinion to which the excerpt refers. Under the Constitution’s Appointments Clause, any high-ranking “principal” officer who answers directly to the president, like the Attorney General, must be confirmed by the Senate. “Inferior officers” needn’t be, assuming Congress has granted the president the power to appoint them unilaterally. In 2003 OLC concluded that the acting head of OMB was an inferior officer based on the following logic:

I can understand needing flexibility on the advise-and-consent requirement for principal officers when there’s an emergency. The AG dies suddenly, say, and someone has to take the reins of the Department immediately. A permanent replacement won’t be named and confirmed in a day. But Sessions didn’t die suddenly. Just the opposite. He spent 18 months lingering, hanging by a thread after angering Trump by not recusing himself from Russiagate. The White House had a year and a half to line up a replacement. And even if Sessions had suddenly passed away, there are officers at the DOJ who’ve already been confirmed by the Senate — namely, Rod Rosenstein — who can run the Department while a permanent replacement goes through the confirmation process.

To put that another way: Why does the DOJ need an “acting” Attorney General when the deputy Attorney General is on duty and prepared to step in? The answer, obviously, is that Trump doesn’t trust Rosenstein to “cover his back” on Russiagate and wants a crony at the top of the Department instead. But that’s exactly why the Appointments Clause exists, to give the Senate the power to stop the president from filling the government with cronies. And while it’s true that Whitaker is serving only temporarily, the idea that a “principal officer” magically becomes an “inferior” one by dint of his temporary service, as OLC suggested in 2003, seems bizarre to me. The “temporary” appointment here could last seven months; Whitaker enjoys the full powers of the office over that span and answers only to the president, the hallmark of “principal officers.” Since Trump imposed no time limit on his service up front, there’s no reason the Senate couldn’t/shouldn’t hold a hearing and vote on confirmation. So how does the DOJ win here?

Maybe they don’t:

The state of Maryland plans to ask a federal judge on Tuesday for an order declaring that Rod Rosenstein is the acting attorney general — not Matt Whitaker, who was appointed to that position last week after the forced resignation of Jeff Sessions…

Maryland’s attorney general, Brian Frosh, a Democrat, argues in court documents to be filed Tuesday that if Trump had the kind of authority the White House claims, he could fire the attorney general “then appoint a carefully selected senior employee who he was confident would terminate or otherwise severely limit the investigation.”

Indeed he could. In theory he could have fired Sessions the day after he was confirmed last year and begun rotating in a series of cronies as AG, each tasked with serving a seven-month stint without Senate confirmation. There’s a solution to that scenario under the Constitution, in theory: Congress could simply impeach and remove the cronies. But removing an already sitting officer is a much heavier lift for the Senate than blocking the confirmation of one to begin with, and it assumes the president’s party would be willing to go to war with him for a sustained period over the issue. Relatedly, the Maryland AG is also pushing an argument that, whatever the 2003 OLC opinion may say about other federal agencies, it can’t be the case that it applies to the Justice Department itself. The DOJ, after all, is the rare department that might have cause to investigate the president himself for possible crimes. POTUS thus stands to benefit directly from naming a crony as acting AG who doesn’t have to answer to the Senate, exactly the danger the Appointments Clause tries to prevent.

A judge will bear all of that in mind in deciding the issue. And the district court judge hearing this particular case happens to be an Obama appointee.

Bear in mind, there’s a way to resolve this issue that doesn’t reach the constitutional question about the Appointments Clause. (Courts like to avoid constitutional rulings if they can when ruling on a case.) The Vacancies Reform Act is the general statute that lays out the rules for whom the president can and can’t appoint to fill vacancies; it’s the same statute that Trump is relying on to support Whitaker’s appointment. But there’s another statute elsewhere that governs vacancies at the DOJ specifically, which says the deputy AG is in charge when the AG slot is vacant. A court could simply decide that the more specific statute carries the day here: Rosenstein is acting AG until a permanent successor is named. If Trump doesn’t like that, he can fire him too. Then we’ll have a new vacancy battle for the deputy AG role!

Exit question: What if Whitaker has to recuse himself from the Russiagate probe too? I doubt it’ll happen — but the odds of it happening aren’t zero.