George Conway, the husband of Trump White House adviser Kellyanne Conway, wrote that Trump’s installation of Matthew Whitaker as acting attorney general is both unconstitutional and illegal.
Conway and Neal Katyal used the conservative legal argument against Mueller to explain why the Whitaker installation is illegal The New York Times:
But Professor Calabresi and the president were right about the core principle. A principal officer must be confirmed by the Senate. And that has a very, very significant consequence today. It means that President Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.
Because Mr. Whitaker has not undergone the process of Senate confirmation, there has been no mechanism for scrutinizing whether he has the character and ability to evenhandedly enforce the law in such a position of grave responsibility. The public is entitled to that assurance, especially since Mr. Whitaker’s only supervisor is President Trump himself, and the president is hopelessly compromised by the Mueller investigation. That is why adherence to the requirements of the Appointments Clause is so important here, and always.
We discussed Trump’s move against Mueller on the Politicus Pod:
It is pretty simple, Trump is trying to dodge the Constitution by sticking a loyalist in as attorney general who hasn’t been through the Senate confirmation. Trump is doing an end-run around our entire system of government. It is illegal, unconstitutional, and this sort of executive branch conduct hasn’t been seen since Nixon.
There is a bipartisan consensus that Donald Trump is breaking the law with these actions, and whatever Whitaker does is subject to legal challenge as illegitimate while he is acting as attorney general. If Trump tries to use Whitaker to curtail or fire Mueller, the Special Counsel has the ground for suing this president.
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