Congress must not allow Matthew Whitaker’s appointment as acting Attorney General to go unchecked. Since President Trump appointed Whitaker, serious questions have been raised about his business dealings, personal finances, views of special counsel Mueller’s probe and the constitutionality of his appointment.
Until at least 2016, Whitaker served as a paid advisory-board member of a marketing firm that, according to the FTC, falsely promised clients it would patent and market their ideas in exchange for hefty fees. In 2017, World Patent Marketing was shut down by FTC after it was accused of scamming $26 million. According to reports, Whitaker received complaints about the firm and took an active role in working to shield the company from criticism.
Whitaker’s newly updated financial disclosure statement raises serious questions about who might have influence over Whitaker and what conflicts of interest he might have as acting Attorney General. Whitaker’s financial disclosure shows that he was paid over $1.2 million in the past few years by a conservative political group that does not disclose its donors. During the period covered by the filings, Whitaker’s next largest source of income was $103,000 from a law firm at which he was a partner.
Also of concern regarding Whitaker’s appoint as acting Attorney General is his recent and frequent criticism of special counsel Mueller’s investigation into potential collusion between the Trump campaign and Russia.
By law, the Attorney General has oversight of the special counsel’s investigation.
Only a year ago, while serving as a CNN legal commentator, Whitaker argued that Mueller’s investigation went too far, should be more limited in scope and envisioned a scenario where the attorney general could "reduces [Mueller's] budget so low that his investigation grinds to almost a halt."
Whitaker’s open attacks on Mueller raise question as to whether Trump intentionally selected Whitaker as acting Attorney General with the understanding that Whitaker would shut down Mueller’s investigation.
However, of greatest concern regarding Whitaker’s appointment is whether it is constitutional in the first place. Trump cited the Federal Vacancies Reform Act to promote Whitaker to serve as acting Attorney General. The Federal Vacancies Reform Act allows the president to appoint someone for 210 days to serve in the federal government. Yet, constitutional scholars widely argue that the Federal Vacancies Reform Act does not allow the president to appoint people to cabinet-level positions.
The Appointments Clause of the Constitution states that all “principal officers” of the United States must be nominated by the president and confirmed by the Senate. The U.S. Attorney General is widely considered a “principal officer” because the Attorney General reports directly to the President.
Prior to being appointed acting Attorney General, Whitaker served as former Attorney General Sessions’ chief of staff. As chief of staff, Whitaker was not serving in a senate confirmed position. Therefore, the elevation of Whitaker to acting Attorney General, without a Senate confirmation hearing, violates the constitutional obligation of Senators to “advise and consent” on principal officer nominees.
The appointment of Whitaker also conflicts with the Department of Justice’s succession statute. The Department of Justice’s succession statute states that “in case of a vacancy in the office of Attorney General, the Deputy Attorney General may exercise all the duties of that office.” The statute also says that if the Attorney General and the Deputy Attorney General are unavailable, the Associate Attorney General “shall act” as Attorney General.
Therefore, taking into account the Appointments Clause of the Constitution and the Department of Justice’s succession statute, along with all of the concerns regarding Whitaker past business dealings, finances and comments about the Mueller probe, there is absolutely no way that Trump’s appoint of Whitaker can go unchecked.
Congress must demand that Whitaker not be recognized as acting Attorney General until he is nominated and confirmed by the Senate. Until that time, in accordance with the Department of Justice’s succession statute, Deputy Attorney General Rosenstein should serve as acting Attorney General until someone else is confirmed as Attorney General.
Comments