There are 3 legal reasons that has me questioning the legality of  the republican President Donald Trump firing of the US Attorney General Jeff Sessions, only to replace him with Mr. Sessions’ Chief of Staff Matthew Whittaker, a former CNN commentator who has publicly stated that he was in agreement with the president’s claim about the FBI’s Trump-Russia probe being a “witch hunt.”

Based on the advice of the DOJ’s ethics office, Mr. Sessions had  decided to recuse himself from his oversight duties over the FBI’s Trump-Russia probe, as he had been intrinsically involved with President Trump’s campaign, and because he had failed to disclose contacts he had made with a Russian ambassador during the US Senate confirmation hearings.  Thus, the job assignment for overseeing the FBI’s Trump-Russia saga fell to the Deputy Attorney General Rod Rosenstein.

But now, Mr. Whittaker will be assigned to manage this FBI inquiry, even though Mr. Whitaker has openly criticized the FBI’s Trump-Russia inquiry. There is a video showing Mr. Whitaker announcing that he didn’t buy into the claim, that Russian operatives interfered with the US voting infrastructure in 2016.  He has told reporters, that he has no intention of recusing himself from exercising his oversight duties over this FBI investigation.

Here are the reasons as to why the placement of Mr. Whittaker as the acting US attorney general is not a legal act to where his directions can/ should be ignored…

First, there is this statute, the Vacancy Reform Act which I believe is not applicable when the president fires someone. Making an official like the Attorney General Sessions submit a resignation letter, still constitutes a firing.

There is a reason that the Attorney General Sessions began his resignation letter with the words, that he was submitting his resignation letter at the behest of his boss, the US president.  The person replacing Mr. Sessions should be the Deputy Attorney General Rod Rosenstein who currently oversees the FBI’s Trump-Russia probe being led by the Special Counsel Robert Mueller III.

1. U.S. Code › Title 5 › Part III › Subpart B › Chapter 33 › Subchapter III › § 3345

2.) The Line of Succession in Firing Robert Mueller / The Brennan Center for Justice

3.) The Appointments Clause of the Constitution, Article II, Section 2, Clause 2.

What the Appointment Clause states in a nutshell, is that any principle office holder who reports directly to the US president cannot be replaced by any party who has not undergone the confirmation process by the US Senate.  Mr. Whitaker has not been subject to this confirmation process.

What’s worse, is that President Trump is well aware of this law. He tried to remove the FBI’s Special Counsel Robert Mueller III on the basis of this law, but he was not successful because Mr. Mueller does not report directly to the president but rather to the DOJ’s Attorney General Rod Rosenstein. In addition, Mr. Rosenstein reported to the AG Sessions who was answerable to President Trump.

But now, Mr. Whitaker is replacing AG Sessions which means he would be a principle, directly answerable to the US president.

The President’s counselor, Kellyann Conway’s husband has written an op-ed piece stating that replacing the AG Sessions with his Chief of Staff Mr. Whittaker is unconstitutional. Other US constitutional experts like Laurence Tribe and Robert Klain agree with his analysis.

In short, even the most conservative experts on constitutional law are in agreement that the placement of Matthew Whittaker as ‘acting attorney general’ is unconstitutional.

On November 8, 2018, Neal K. Katyal and George T. Conway III of the New York Times penned the following op-ed piece, “Trump’s Appointment of the Acting Attorney General Is Unconstitutional”

Excerpts:

“The president is evading the requirement to seek the Senate’s advice and consent for the nation’s chief law enforcement officer and the person who will oversee the Mueller investigation.”

“What now seems an eternity ago, the conservative law professor Steven Calabresi published an op-ed in The Wall Street Journal in May arguing that Robert Mueller’s appointment as special counsel was unconstitutional. His article got a lot of attention, and it wasn’t long before President Trump picked up the argument, tweeting that “the Appointment of the Special Counsel is totally UNCONSTITUTIONAL!”

Professor Calabresi’s article was based on the Appointments Clause of the Constitution, Article II, Section 2, Clause 2. Under that provision, so-called principal officers of the United States must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.

“He argued that Mr. Mueller was a principal officer because he is exercising significant law enforcement authority and that since he has not been confirmed by the Senate, his appointment was unconstitutional. As one of us argued at the time, he was wrong. What makes an officer a principal officer is that he reports only to the president. No one else in government is that person’s boss. But Mr. Mueller reports to Rod Rosenstein, the deputy attorney general. So, Mr. Mueller is what is known as an inferior officer, not a principal one, and his appointment without Senate approval was valid.”

“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.”

“Much of the commentary about Mr. Whitaker’s appointment has focused on all sorts of technical points about the Vacancies Reform Act and Justice Department succession statutes. But the flaw in the appointment of Mr. Whitaker, who was Mr. Sessions’s chief of staff at the Justice Department, runs much deeper. It defies one of the explicit checks and balances set out in the Constitution, a provision designed to protect us against the centralization of government power.”

“If you don’t believe us, then take it from Supreme Court Justice Clarence Thomas, whom President Trump once called his “favorite” sitting justice. Last year, the Supreme Court examined the question of whether the general counsel of the National Labor Relations Board had been lawfully appointed to his job without Senate confirmation. The Supreme Court held the appointment invalid on a statutory ground.”

“Justice Thomas agreed with the judgment, but wrote separately to emphasize that even if the statute had allowed the appointment, the Constitution’s Appointments Clause would not have. The officer in question was a principal officer, he concluded. And the public interest protected by the Appointments Clause was a critical one: The Constitution’s drafters, Justice Thomas argued, “recognized the serious risk for abuse and corruption posed by permitting one person to fill every office in the government.” Which is why, he pointed out, the framers provided for advice and consent of the Senate.”

“What goes for a mere lawyer at the N.L.R.B. goes in spades for the attorney general of the US, the head of the Justice Department and one of the most important people in the federal government. It is one thing to appoint an acting underling, like an acting solicitor general, a post one of us held. But those officials are always supervised by higher-ups; in the case of the solicitor general, by the attorney general and deputy attorney general, both confirmed by the Senate.”

Link: The New York Times