As Trump’s DOJ says he has the power to “depart from the succession order” that was established by one federal law by appointing Acting AG Matthew Whitaker, more than a dozen prominent conservative lawyers raised the alarm about Trump undermining the rule of law, before the annual convention of the Federalist Society, a conservative legal group, this Thursday, the New York Times reported Wednesday.
“We believe in the rule of law, the power of truth, the independence of the criminal justice system, the imperative of individual rights and the necessity of civil discourse. We believe these principles apply regardless of the party or persons in power,” the group said in a statement signed by all 14, including George Conway, Trump counselor Kellyanne Conway’s husband, who organized the group.
“Conservative lawyers are not doing enough to protect constitutional principles that are being undermined by the statements and actions of this president,” the Times reported John B. Bellinger III, White House lawyer under President George W. Bush, said.
George Conway wrote an opinion piece last week arguing (this really shouldn’t be seen as an argument, it’s not in dispute except by right wing hacks who would justify anything this president did) that Trump’s appointment of Whitaker as acting AG was unconstitutional.
The Trump DOJ cited the Federal Vacancies Reform Act on Wednesday while justifying Trump’s move, even though it was not meant to be used to avoid an investigation.
In a legal opinion sent to the White House, the DOJ’s Office of Legal Counsel said that the president can “depart from the succession order” that was established by one federal law by using a separate law known as the Federal Vacancies Reform Act. The OLC could only find one other acting attorney general who had not been confirmed by the Senate, J. Hubley Ashton, who Brad Heath pointed out, “held the office in 1866, for six days.”
Six days is not much of a legal precedent.
“Major questions must be answered about the legality of the Whitacre appointment. Under 5 USC 3344, the president cannot fire a Senate confirmed official and replace him with a person of his choosing. Sessions was constructively fired,” Norm Eisen explained above a link to an earlier article from March that he wrote with Victoria Bassetti:
“The VRA allows the president to name an acting attorney general were Sessions to “die, resign, or … otherwise [be] unable to perform the functions and duties of the office.” Trump could pick anyone who has already been confirmed by the Senate to any job in the executive branch… But nowhere among the triggering events allowing such an appointment does the act expressly list firings.”
There are legal scholars who disagree, of course, as Eisen and Bassetti pointed out. But they also pointed to what they termed a “kicker”, “Any action taken by someone improperly installed in office ‘shall have no force or effect.’ And anyone affected by a decision made by an illegitimate attorney general has standing to sue.”
So we are in typical Trump muck and legal chaos, regular order having been demolished as the President continues his relentless power grab, treating the presidency like a fascist leader would.
Ultimately, Trump’s agenda is the real problem. His agenda is to be unchecked and he freely admits that. He admits that he wouldn’t have picked Jeff Sessions as AG if he had known Sessions would recuse himself from the Russia investigation, for example. He’s outraged that the Democrats are going to perform the oversight on the executive branch that the Republican-led House refused to do, but which is their constitutional duty.
Yes, that duty can be abused and misused. And it has been and will be again. But in this case, what the Democrats have lined up to investigate is a slate of actual abuses of power, unethical and possibly illegal moves by this administration, that not only need to be checked for regular order, but because our democracy depends upon it.
It is a relief, quite frankly, to see a handful of conservative lawyers speak up on an issue that is supposed to actually be their forte- the limiting of executive branch power.
(Additional reporting by Reuters’ Sarah N. Lynch)
Ms. Jones is the co-founder/ editor-in-chief of PoliticusUSA and a member of the White House press pool.
Sarah hosts Politicus News and co-hosts Politicus Radio. Her analysis has been featured on several national radio, television news programs and talk shows, and print outlets including Stateside with David Shuster, as well as The Washington Post, The Atlantic Wire, CNN, MSNBC, The Week, The Hollywood Reporter, and more.
Sarah is a member of the Society of Professional Journalists.