Whitaker’s Appointment as Acting Attorney General Is Statutorily Illegal

President Trump has designated Matthew Whitaker as acting attorney general to replace Jeff Sessions. Neal Katyal and George Conway and others, citing Justice Clarence Thomas, have argued that the appointment violated the Constitution’s Appointments Clause, because Whitaker was never confirmed by the Senate for his original office, and cannot become a “principal” officer. I am suggesting another reason: The appointment did not follow Congress’s statutory rules for vacancy appointments, based on both a close textual reading and a broader purpose-based reading of those statutes. [Update: I’m now emphasizing purposive more than textual.]

Trump relied on a federal law called the Vacancies Reform Act that generally addresses the filling of temporary vacancies. But this appointment is impermissible based on a fair reading of the statute that more specifically governs the Department of Justice.

If Sessions had forced Trump to fire him, rather than resign, Trump would not have been able to pick Whitaker. But I agree with most commentators that Sessions’s resignation makes the Vacancies Reform Act applicable, and means the president has more discretion to choose an acting officer like Whitaker.

However, the Vacancies Act does not apply* [see update on exclusivity below] when “a statutory provision expressly—(A) authorizes . . . “the head of an Executive department, to designate an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity; or (B) designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity” (5 U.S.C. § 3347(a)(1)).

And it turns out that there is a more specific statutory provision for the Department of Justice. 28 U.S.C. § 508 states:

(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 [an earlier section of the Vacancies Reform Act] 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.

At first reading, there seem to be two questions: First, does Section 508 designate the Deputy Attorney General (in this case, Rod Rosenstein)? The word “may” doesn’t seem like a designation, but more of a permission to designate. The statute does designate the Deputy Attorney General in some capacity, but in a way that seems to contemplate another part of the Vacancies Act, and that raises the question about whether that Act was meant to apply here (and thus allow Whitaker’s appointment). Second, did Sessions designate Rosenstein to serve as acting AG when the position becomes vacant? If not, the Vacancies Act would apply, and it seems Trump could appoint Whitaker.

However, it turns out that such an appointment fails both a narrow, strict textual reading or a broader reading of this statute in light of these statutes’ purposes. First, a narrow textual reading: The Vacancies Act doesn’t ask whether the more specific statute designates a specific officer. It asks whether the specific statute “authorizes… the head of an Executive department to designate an officer…” And Section 508 does authorize the Attorney General to designate someone. (It doesn’t matter in this strict textual reading whether he actually did). And thus, a narrow textualist cannot say that the Vacancies Act applies here.

This textual reading makes some sense: if a statute already has a process for the department head to designate succession, then rely on that department head (or otherwise rely on the underlying structure of that department). Here, the statute gives the AG a designation process (even if Sessions didn’t use it). And it has an underlying structure: a Deputy Attorney General next in line. The Vacancies Reform Act says itself that it does not apply here, because the statute in fact “authorizes” the head, the AG, to designate someone. This is simply a close textual reading of the statute.

What if one says that this textual reading is too narrow? Maybe Section 508 refers to the Vacancies Act because it imagined that the Vacancies Act to apply, even if the text of the Vacancies Act strictly means that it does not apply?

Now we are in the realm of a broader reading of purposes. These statues generally were passed to limit presidential discretion to replace officers, to prevent a president from having complete power to hand-pick replacements. In 1998, Republican Congress passed the Vacancies Reform Act, sponsored by Republican Senator Fred Thompson, in order to limit the president’s discretion and create a more defined, predictable process, less susceptible to presidential manipulation, as Joshua Stayn explained in the Duke Law Journal. Stayn’s account shows how Clinton frustrated Republicans with his manipulation of recess appointments, and they passed a bill almost exclusively with GOP votes as impeachment loomed. [One friend of mine who remembered those general events of 1998 agreed with me over the weekend that Clinton signed the bill under duress, eager not to pick additional fights with congressional Republicans].

And the more specific statute for the Department of Justice, enacting Section 508, was also part of a project of limiting presidential discretion over succession. Congress passed this statute in 1966 as part of a reorganization act, which also limited presidential discretion. Then in the wake of Watergate, Congress amended this statute to further limit the president in 1977 as part of series of anti-corruption reform statutes and limitations, to specify that if both the Attorney General and Deputy AG are unavailable, “the Associate Attorney General shall act as Attorney General.” In light of these purposes to limit presidential discretion, the statute should be read to establish a clear order of succession: from Attorney General to Deputy Attorney General to Associate Attorney General. It used the word “designation” to advance those purposes.

Section 508 mentions another part of the Vacancies Act, Section 3345, so the drafters of the statute in Congress surely could have included a reference to the relevant section here (Section 3347 on exclusivity). But they did not. Does this reference to the Vacancies Act for some vacancies mean that it applies for all vacancies in a way to maximize the president’s power? The text simply does not say so. And to insert such an interpretation into the text, despite the language of 3347’s exceptions that would apply to the Attorney, would be inconsistent with the purposes of these statutes. [Update/clarification: 508’s cross-reference to 3345 here is for a specific clause: 3345(a)(1), to designate “the first assistant to the office of such officer [who] shall perform the functions and duties of the office temporarily.” That’s reflected in the specific language in 508 echoing 3345’s specific language on “first assistant.” That reference to 3345(a)(1) does not somehow make the rest of 3345 apply, overriding the text of 3347.]

Now consider this specific amendment in light of this context, and how Trump’s claim leads to a strange, inexplicable, and almost absurd result. 508(a) makes sure to designate the Deputy AG as the first assistant. Then 508(b) if the AG and Deputy AG are both unavailable, the statute clearly designates the Associate Attorney General, to prevent presidents from handpicking another officer from elsewhere in the government. Why give the president such a leap to total discretion if the Deputy AG is available? Isn’t it obvious that if the Deputy Attorney General were “available,” he would be the designated officer after the Attorney General? Why should the president suddenly have more latitude to handpick a potential crony if the Deputy AG is still in office? This makes no sense in a broader purposive perspective.

The word “may” might appear to make it permissible, not required, to make the Deputy AG the next in line, but once one has already be departed from a strict textual reading to a purposive reading to find a way for the Vacancies Act to apply, the statutes’ purposes would lead to its own logic of leaving the deputy attorney general in charge.

And consider the broader context of the VRA statutes in 1998 and the DOJ amendment in 1977: in the midst of one impeachment and in the shadow of a near-impeachment. These Congresses were not enabling another Saturday Night Massacre and another constitutional crisis. They were seeking to create checks and balances, order not chaos. The ambiguities and messiness of these statutory tests – about “exclusivity” and their strange interactions and absurdities and potential unconstitutionalities for principal offices – means that we need to investigate the purposes more rigorously.

Thus, under either a close reading of the text or a broad reading of purposes, Trump cannot use the Vacancies Act to designate Whitaker as acting AG. Deputy Attorney General Rosenstein thus should be considered the Acting AG of the entire Department of Justice.

[Exclusivity in VRA: I read English v. Trump, which holds that the VRA provides an additional means for a president to appoint acting officials when another statute.

I’m softening my textual claim in this post, but I am highlighting my purposive question: why would statutes passed in 1977 and 1998 (in the shadow of one impeachment and in the midst of another) and meant to limit Presidential power and create orderly succession have created such open discretion, potential for Watergate-like abuses, and such chaos?

Author: Jed Shugerman

Jed Handelsman Shugerman is a Professor at Fordham Law School. He received his B.A., J.D., and Ph.D. (History) from Yale. His book, The People’s Courts (Harvard 2012), traces the rise of judicial elections, judicial review, and the influence of money and parties in American courts. It is based on his dissertation that won the 2009 ASLH’s Cromwell Prize. He is co-author of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. He is currently working on two books on the history of executive power and prosecution in America. The first is tentatively titled “A Faithful President: The Founders v. the Unitary Executive,” questioning the textual and historical evidence for the theory of unchecked and unbalanced presidential power. This book draws on his articles “Vesting” (Stanford Law Review forthcoming 2022), “Removal of Context” (Yale Journal of Law & the Humanities 2022), a co-authored “Faithful Execution and Article II” (Harvard Law Review 2019 with Andrew Kent and Ethan Leib), “The Indecisions of 1789” (forthcoming Penn. Law Review), and “The Creation of the Department of Justice,” (Stanford Law Review 2014). The second book project is “The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration,” focusing on California Governor Earl Warren, his presidential running mate Thomas Dewey, the Kennedys, World War II and the Cold War, the war on crime, the growth of prosecutorial power, and its emergence as a stepping stone to electoral power for ambitious politicians in the mid-twentieth century.

8 thoughts on “Whitaker’s Appointment as Acting Attorney General Is Statutorily Illegal”

  1. A follow up question, sir. Who has standing – and in what forum – to begin a legally binding procedure for denying Whitaker the office he has been illegally appointed to?


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