Matthew Whitaker’s appointment as acting attorney general of the United States has raised a chorus of objections over what is viewed as an effort by President TrumpDonald John TrumpEx-White House counsel interviewed Whitaker about joining Trump’s legal team: report Flake slams Trump for doubting Arizona vote count: No evidence of ‘electoral corruption’ Comey talked about sensitive FBI matters on personal email: report MORE to gain control over and possibly scuttle the investigation of special counsel Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE. Many have cited Whitaker’s past comments criticizing the investigation as evidence of such a nefarious design. But what if the greatest threat to Mueller is not Whitaker’s views but Whitaker just being himself?
As an official who is not confirmed by the Senate, Whitaker could prove to be a type of Mueller antimatter, as one who makes the status of a special counsel, as one unconfirmed official reporting to another, more problematic. Whether intended or not, Trump may have just sent the Mueller investigation into a serious constitutional challenge. For those hoping for a shazam moment where Trump somehow makes Mueller disappear, that is not likely. However, he could pull off quite a trick in having a court shut him down.
In any magic trick, the first move is the pledge where you do something common or ordinary. This whole controversy began with the appointment of a special counsel after the recusal of former Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsEx-White House counsel interviewed Whitaker about joining Trump’s legal team: report Flake: Whitaker shouldn’t oversee Mueller probe FBI investigating Florida company Trump’s acting AG was involved in: report MORE. That was an ordinary step that some of us advocated after President Trump fired former FBI director James ComeyJames Brien ComeyComey talked about sensitive FBI matters on personal email: report With Matthew Whitaker playing Roy Cohn, DOJ could be Trump’s personal law firm Fox News host presses Graham on remark about ‘holy hell’ if Trump fired Sessions MORE.
The status of independent and special counsels has long been a controversy. The appointments clause of the Constitution mandates that high level officials in the executive branch, called “principal officers,” require a presidential nomination and Senate confirmation. Congress may allow a president to simply appoint, without confirmation, other “inferior officers,” as they think proper.
Mueller’s authority has been challenged by Paul Kamenar and the National Legal and Policy Center on behalf of Andrew Miller, a former aide to longtime Trump confidante Roger StoneRoger Jason StoneAppeals court panel hears arguments challenging Mueller’s authority Trump on Russia probe: ‘I could fire everybody right now’ but don’t want to stop it Two associates of Roger Stone testify before grand jury MORE. They argue that Mueller is exercising authority exceeding that of a United States attorney, a position that requires confirmation. He is, therefore, functioning as a United States attorney “at large” who exercises “principal officer” powers.
Despite excellent arguments from Kamenar, I have been skeptical of the position because the special counsel, unlike the earlier position of independent counsel, remains rooted within the Justice Department and subject to the authority of the attorney general or his designated subordinate, which in this case is Deputy Attorney General Rod RosensteinRod Jay RosensteinFlake: Whitaker shouldn’t oversee Mueller probe Rosenstein calls Whitaker ‘superb’ choice for acting AG: report Collins reiterates call for legislation to protect Mueller investigation MORE, who is a principal officer confirmed by the Senate.
That brings us to surprise or “turn” in the trick where something extraordinary happens on stage. This here is the unexpected move of Trump appointing Whitaker, who had been chief of staff at the Justice Department, as the successor of Sessions, rather than simply elevating the deputy attorney general, as has been past practice.The chief of staff largely serves as an aide to the attorney general and does not have substantive duties over the different divisions of the Justice Department.
Critics argue that Whitaker does not meet Federal Vacancies Reform Act requirements, but I disagree with that argument, as well as arguments that Whitaker’s public commentary before joining the Justice Department now requires him to recuse himself from overseeing the Mueller investigation. However, there remains a more fundamental question, not whether Whitaker is unlawful under the Federal Vacancies Reform Act, but whether that law itself is unconstitutional.
The position of the attorney general is clearly that of a principal officer requiring confirmation. Under the Federal Vacancies Reform Act, Whitaker will carry out the functions of the attorney general without confirmation for 210 days. He can then gain another 210 days if he, or some other nominee, fails to secure confirmation. That includes functions dealing with succession of the presidency and a host of other matters of critical importance to the nation.
It makes little sense for the Constitution to specify that these functions can only be exercised by a confirmed individual unless a president simply declares him acting and immune from the requirements. President Trump could have a difficult time holding the conservative wing of the Supreme Court on such a question of plain meaning, including Associate Justice Clarence Thomas, who has previously written about the importance of such confirmations as a prerequisite to exercising such powers.
Now we move to the final stage of “prestige” when the magic occurs. The best legal argument in defense of Mueller’s position was that he reported to Rosenstein, who is a confirmed official. Now that he reports to Whitaker, you have an unconfirmed individual exercising powers like a United States attorney and being overseen by an unconfirmed acting attorney general.
In other words, by appointing Whitaker, Trump has undermined the position of his own Justice Department in court in the aforementioned Miller case without directly firing Mueller. If Whitaker is left in place, and Trump has said there is “no rush” to fill the post permanently, the court could conclude that Mueller is now exercising powers reserved to confirmed “principal officers.” He could be barred from exercising those powers until an attorney general is nominated and confirmed.
Making this situation all the more intriguing would be if Trump then appoints someone who Democrats would likely oppose, such as former New Jersey governor Chris Christie. Yet, if Democrats rejected such a nominee, they, rather than any direct action by Trump, would be the reason for keeping the Mueller investigation enjoined. That would be the ultimate “prestige” to this trick.
All of this depends, of course, on the court’s interpretation of the appointments clause, which remains unresolved, as well as a delay in the confirmation of a permanent attorney general. Nevertheless, Whitaker’s appointment could have significantly strengthened the challenge to Mueller. Indeed, this sequence of events could magnify the concern of judges about allowing special counsels to hold unconfirmed positions. What may have been seen as mere conjecture about reporting to another unconfirmed official is now the reality.
Whitaker could remove this threat to the position of his own department by simply recusing himself and leaving the supervision of Mueller to Rosenstein. Yet, given Trump’s long fury over the recusal by Sessions, that likely would not go over well. Or Whitaker could presumably wait for a decision and recuse himself if the court considers his unconfirmed status to be a barrier to the completion of the Mueller investigation. However, this is why the ultimate trick about this appointment may not be Whitaker’s views but Whitaker himself. Under this scenario, Trump appoints a chief of staff and abracadabra! Mueller disappears. It is admittedly unlikely, but that would be quite a trick.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.