The Whitaker Problems

In a White House whose administration’s cabinet-level political appointees are surrounded and embroiled in scandals, ethical problems, watch-dog investigations and court battles; where a sitting POTUS is actively being sued for conflicts of interests, allegations of mixing his personal family business finances with political pay-to-play involving both domestic peoples and suspect foreign nation-heads, and of course, the lingering Mueller investigation into the Trump Campaign organization that hangs over the White House, and the nation, like a gathering of dark and ominous storm clouds, the White House now invites into their midst one more possible scandal in the making after the firing or ‘forced’ “resignation,” depending on the legalese of it all, of U.S. Attorney General Jeff Sessions.

The decision to appoint Matthew Whitaker as the interim temporary Acting US Attorney General has raised several problematic questions over the legality of the appointment as Whitaker brings several ethical problems with him.

According to Lawfare’s John Bies, President Trump was acting under what is known as the Federal Vacancies Reform Act (FVRA) when he appointed Matthew Whitaker as “acting attorney general,” and considers “three lingering questions” that hang over the unusual appointment: “Is the appointment constitutional? … does the president have the authority … under FVRA when there is a confirmed deputy attorney general who can act under a specific statute governing Department of Justice succession (28 U.S.C. § 508)?* … does the acting attorney general have any recusal obligations in relation to the special counsel’s investigation in light of his past statements and relationships?”

In Article II, Section 2, Clause 2, of the US Constitution, i.e., the “Appointments Clause,” says that the President “shall have power to … by and with the advice and consent of the Senate … shall appoint … all other officers of the United States, … but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.”

However, it is established the attorney general is a high-ranking cabinet position, which only reports to the president and oversees a “major executive department,” is considered a “principal officer” and is therefore, subject to “advice and consent of the Senate,” whereas, Whitaker, in this case, is considered an “inferior officer.”

The chief of staff to the attorney general, on the other hand, is an inferior officer appointed by the head of a department, and not subject to the Senate’s advice and consent, so Whitaker has not been confirmed to his current position by and with the advice and consent of the Senate. While the FVRA allows the president to appoint another Senate-confirmed official to fill a vacancy, here the president has elected to rely on another FVRA provision that allows him to appoint a senior Department of Justice official who was not Senate-confirmed.

There remains an open question of whether it is constitutional to rely on of the FVRA to appoint an official not serving in a Senate-confirmed position to act as a principal officer, such as the attorney general. Some—including Justice Clarence Thomas—have argued that an acting principal officer must be appointed in conformance with the Appointments Clause, i.e., by and with the advice and consent of the Senate: “Appointing principal officers under the FVRA . . . raises grave constitutional concerns because the Appointments Clause forbids the President to appoint principal officers without the advice and consent of the Senate.”

A 19th century Supreme Court opinion does hold that a statute that permitted a diplomatic vice counsel to serve “for a limited time, and under special and temporary conditions” as counsel during the temporary absence of the counsel (a principal officer) did not somehow transform the vice counsel “into the superior and permanent official” in violation of the Appointments Clause.

Lawfare; Nov 8 2018

The matter of succession has been a topic of discussion since Trump himself said in an interview with NYT’s Michael Schmidt when he said he wouldn’t have hired Sessions if he’s known he was going to recuse himself-something that raised eyebrows further that Trump was willing to possibly obstruct the special counsel investigation since the day he fired James Comey.

Lawfare notes the FVRA “expressly provides that the president can appoint a long-serving official in the department to fill a vacancy, though there is a matter of deliberation as to whether FVRA does not apply “where a federal official is fired rather than resigns” because the statute is “triggered when the current officeholder ‘dies, resigns, or is otherwise unable to perform the functions of duties of the office.”

But if Sessions’ “resignation” is taken “at face value,” Bries writes, “there is little question that the appointment of the acting attorney general comports with the statutory requirements of the FVRA,” and that “it seems unlikely that a court would look past an official’s formal statement that they resigned to find a constructive firing that precluded the application of the FVRA.”

According to Just Security in July 2017, “the most obvious and least controversial succession scenario would be for President Trump to follow the terms of the DOJ succession statute and his own Executive Order on DOJ succession, under both of which the Deputy Attorney General (Rod Rosenstein) would automatically become the Acting Attorney General pending the confirmation of Sessions’s successor.”

Where it becomes more of a problem is whether the DOJ’s own specific statute, 28 U.S.C. § 508, can override the president’s use of the Federal Vacancies Reform Act for an appointment.

Section 508 directly addresses Justice Department succession and provides that “[i]n case of a vacancy in the office of Attorney General, … , the Deputy Attorney General may exercise all the duties of that office.” The statute further provides that if both the attorney general and the deputy attorney general are unavailable or unable to serve, the associate attorney general “shall act” as attorney general. The statute also authorizes the attorney general to “designate” the solicitor general and the various assistant attorney generals in “further order of succession.” Under the current attorney general order, the solicitor general is next in the line of succession.

Currently there is a confirmed deputy attorney general—Rod Rosenstein—but not a confirmed associate attorney general. Section 508 consequently provides that upon the vacancy in the office of attorney general caused by Sessions’s resignation, Deputy Attorney General Rod Rosenstein “may exercise all the duties” of the attorney general.

The FVRA acknowledges that it may not be the “exclusive means” for filling vacancies in Senate-confirmed positions if another statute like Section 508 expressly “designates” an officer or employee to perform the functions of the office in an acting capacity. But does the more general authority provided by the FVRA permit the president to supplant the acting attorney general designated by this department-specific statute?

Lawfare

This, in and of itself, creates a problem with a “complicated question.” In September 2007, the Justice Department’s Office of Legal Counsel concluded an opinion that the Vacancies Reform Act can override the DOJ succession statute. However, that was only addressing a matter when both deputy attorney general and associate attorney general positions were vacant. That is not a scenario that would apply here.

Whitaker has been Jeff Sessions chief of staff, supervised and working in an office of the DOJ that has recused itself from the investigation he is now being put in charge of overseeing, effectively replacing Rod Rosenstein.

Next, we come to Matthew Whitaker himself and because of past public and written statements he’s made as well as past relationships would pose regulatory obligations Whitaker recuse himself from any investigations, specially, Title 28 CRF 45.2 – Disqualification arising from personal or political relationship and Title 5 CRF 2635.502 – Personal and business relationships.

The Justice Department regulation that lead to Attorney General Jeff Sessions’s recusal might (ironically) be implicated here as well. It provides that no employee “shall participate in a criminal investigation or prosecution if he has a personal or political relationship” with “[a]ny person or organization substantially involved in the conduct that is the subject of the investigation or prosecution” or “[a]ny person or organization which he knows has a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution.”

Second, the Office of Government Ethics’ Standards of Ethical Conduct for Employees of the Executive Branch has a catch-all provision that provides that a government employee “who is concerned that circumstances other than those specifically described … would raise a question regarding his impartiality” should seek formal ethics advice to determine whether he should or should not participate in a particular matter.

Lawfare

CNN reporter Jeremy Herb.

Here's the press release from Clovis' archived website announcing Whitaker was joining his campaign https://t.co/9NSpupcJr7

— Jeremy Herb (@jeremyherb) November 7, 2018

Talking Points Memo Cameron Joseph.

I talked to Sam Clovis, a former top Trump adviser, who says he's close friends with new AG Whitaker and that they still text regularly. https://t.co/dHN9w8UYNc

— Cameron Joseph (@cam_joseph) November 7, 2018

According to reports in 2014, Sam Clovis ran (unsuccessfully) for Iowa’s State Treasure, and during that campaign Whitaker was named Clovis’ Chairman of his campaign.

Clovis was a “top Trump campaign official” who “supervised a man now cooperating with the FBI’s Russia investigation,” according to an Oct 31 2017 NBC News report, and was questioned by special counsel and the grand jury. The man he supervised who was cooperating with the special counsel is George Papadopoulos, who plead guilty to “making false statements” Oct 5 2017.

According to NBC News at the time, “court documents unsealed … describe[d] emails between Papadopoulos and an unnamed “campaign supervisor.”” Clovis’ lawyer Victoria Toensing “confirmed that Clovis was the campaign supervisor in the emails.

Whitaker himself ran (unsuccessfully) for US Senate in 2014.

Whitaker’s recent past statements which could raise a “question regarding his impartiality,” include written opinion pieces and television appearances.

He wrote an opinion piece for The Hill May 10, 2017, writing, “President Trump made the right decision” to fire James Comey,” implying it was because Comey failed to prosecute Hillary Clinton and saying that “calls for an independent counsel or commission to investigate allegations that Russia tried to interfere with our elections ring hollow” because calls to investigate Obama “scandals” were “dismissed out of hand.”

Then again, on Aug 6, 2017, he wrote an opinion piece for CNN that, Mueller has come up to a red line in the Russia…investigation that he is dangerously crossing” if he investigates Trump’s and his family’s finances, writing, “then this would raise serious concerns that the special counsel’s investigation was a mere witch hunt,” using the president’s own language.

In a CNN appearance, Whitaker stated, “So I could see a scenario where Jeff Sessions is replaced with a recess appointment,” Whitaker said, “and that attorney general doesn’t fire Bob Mueller, but he just reduces his budget to so low that his investigation grinds to almost a halt.”

A year-and-a-half before he took responsibility for overseeing the investigation into Russia’s interference in the 2016 election, Matthew Whitaker, now the acting attorney general, had already reached a conclusion.

…

Over the past three years, he used his position as the executive director of conservative government watchdog group Foundation for Accountability and Civic Trust (FACT) as an opportunity to become a right-leaning political pundit, penning opinion pieces in USA Today and the Washington Examiner, and appearing regularly across conservative talk-radio shows and cable news.

The majority of Whitaker’s media appearances focused on the promotion of one argument: Liberals in government are working to undermine Americans in a variety of troubling and unproven ways. And no one is a bigger threat than Mueller.

Daily Beast; Nov 9 2018

The new acting attorney general Matthew Whitaker spent a few years in the right-wing media repeatedly making the claim that there was "no collusion" with Russia https://t.co/5n2APrLNTr

— The Daily Beast (@thedailybeast) November 9, 2018

Whether he is obligated to recuse may turn on facts—such as the nature of his relationship with Clovis and whether Clovis is a witness, subject or target of the investigation—that are not publicly known. But the public facts make clear that Whitaker must consult with career department ethics officials regarding his participation in connection with the special counsel’s investigation before taking any steps to participate in that investigation. Whitaker may also have other issues involving personal or political relationships that require ethics advice—depending on his relationship with Sessions and other potential witnesses to the special counsel investigation, as well as his past political activities.

Lawfare

According to the Washington Post via East Bay Times, “acting attorney general Matthew Whitaker has no intention of recusing himself from overseeing the special-counsel probe … according to people close to him who added they do not believe he would approve any subpoena.”

The Whitaker Problems

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