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Senate Minority Leader Chuck Schumer sent a letter Friday to President Donald Trump questioning whether the appointment of acting Attorney General Matthew Whitaker was constitutional.
Whitaker, who was then-Attorney General Jeff Sessions’ chief of staff, was promoted after Sessions’ ouster was revealed Wednesday. Sessions, whom Trump regularly vented his rage at in tweets and interviews, wrote in a letter to the president that he had resigned “at your request.”
The announcement came less than a day after Republicans lost their majority control of the House in the midterm elections, and quickly sparked heated criticism from legal experts and Democratic lawmakers.
“Mr. Whitaker is a political appointee who is not serving in a Senate confirmed position in the Justice Department. I am not aware of any precedent for appointment of an official who has not been confirmed by the Senate to serve as Acting Attorney General,” Schumer, D-N.Y.,wrote in his letter to Trump.
He also raised the possibility that Whitaker’s appointment violated a clause in the U.S. Constitution requiring the president to appoint certain officials only “with the Advice and Consent of the Senate.”
Some lawyers have argued that Whitaker is a “principal officer,” as opposed to “inferior officers,” for whom the Constitution gives the president the power to appoint without Senate confirmation.
Among those questioning the move are Neal Katyal, former acting solicitor general in the Obama administration, and George Conway, an attorney — and husband of Trump’s senior advisor, Kellyanne Conway.
“A principal officer must be confirmed by the Senate. And that has a very significant consequence today,” the two lawyers wrote in a New York Times op-ed Thursday. “It means that Mr. 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.”
The White House did not respond to CNBC’s request for comment on Conway’s op-ed.
Schumer appears to adopt a similar stance in his letter to Trump. “The Attorney General, as head of the Department of Justice, is unquestionably a principal officer,” Schumer said. “It is not clear to me how your appointment of an unconfirmed official as Acting Attorney General comports with this constitutional mandate – either on its face or intent.”
Whitaker, 49, was indeed confirmed by the Senate — in 2004, when he became a U.S. attorney for the Southern District of Iowa. But Whitaker tendered his resignation to former President Barack Obama in 2009.
Schumer notes that Peter Keisler was appointed acting attorney general in 2007 without a separate Senate confirmation, but said that Keisler “was already serving in a Senate-confirmed position in the Department.”
Whitaker was reportedly appointed under the Federal Vacancies Reform Act, which allows him to remain acting attorney general for up to 210 days. But depending on when Trump nominates a permanent replacement, Whitaker could remain in the role longer as the nomination process is carried out.
Experts have also questioned the Trump administration’s use of this act, arguing that the law may not apply if Sessions was indeed fired by Trump. Even if it does, some say, the line of succession would put Deputy Attorney General Rod Rosenstein in the acting role. Rosenstein oversaw the Mueller probe after Sessions recused himself, but the DOJ said Whitaker will now oversee the investigation.
Schumer also expressed concern about Whitaker’s fitness to serve in an acting capacity as the chief law enforcement official in the U.S., given his “specific expressions of bias against” special counsel Robert Mueller’s Russia investigation.
Whitaker has critiqued the Mueller probe of Russian interference during the 2016 U.S. presidential election on multiple occasions. He wrote an op-ed for CNN in August 2017 arguing that if Mueller looked into the Trump family’s finances “without a broadened scope in his appointment, then this would raise serious concerns that the special counsel’s investigation was a mere witch hunt.”
Whitaker also appeared to defend Trump campaign officials’ meeting with Kremlin-connected Russians at Trump Tower in June 2016, saying: “There is no federal crime of collusion. So we’re either looking at espionage charges, which seems farcical with the evidence we have now, or we’re looking at campaign finance violations, but I still don’t see how there’s anything of value there.”
In June 2017, Whitaker said on a radio show that “the truth is, there was no collusion with the Russians and the Trump campaign,” Politico reported.
His remarks have led to numerous calls from Democrats and legal experts alike for Whitaker to recuse himself from the probe. But The Washington Post reported Thursday that he has no intention of recusing himself, citing people close to the new acting attorney general. Jay Sekulow, Trump’s lawyer in the Mueller probe, said Thursday that Whitaker’s promotion will have “no effect day-to-day” on the special counsel, Bloomberg reported.
Schumer’s letter included five questions for Trump, asking him why he chose Whitaker and whether he had discussed the Mueller probe with him, among others.
Trump appeared to respond to some of those questions in remarks to reporters Friday morning en route to Paris for events commemorating the 100th anniversary of the end of World War I.
“I don’t know Matt Whitaker,” the president said repeatedly. But Whitaker “is a very highly respected man. You didn’t have any problems when he worked for Jeff Sessions. He’s respected by law enforcement. He’s a very strong law enforcement personality and person,” Trump added.
Asked whether Whitaker should have been confirmed by the Senate, Trump turned the question on Mueller: “Mueller was not Senate confirmed. Why didn’t they get him Senate confirmed? He should’ve been Senate confirmed.”
Katyal and Conway argued in their op-ed, and in prior writings, that “What makes an officer a principal officer is that he or she 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.”
Read the full text of the letter below, or download it here.
Dear Mr. President:
Your decision this week to dismiss Attorney General Jeff Sessions and name a Justice Department staff member, Mr. Matthew Whitaker, as Acting Attorney General raises a number of questions regarding the propriety and even the constitutionality of that action. I am writing to request answers to questions about the motivations behind this appointment and your authority to make it.
The statutory line of succession within the Department of Justice provides that the Deputy Attorney General serves as Acting Attorney General in the case of a vacancy in the Office of Attorney General. Yet, without offering any explanation to Congress or the public, you ignored the statutory line of succession and chose to reply on the Vacancies Reform Act (VRA) in order to name Mr. Whitaker.
Mr. Whitaker is a political appointee who is not serving in a Senate confirmed position in the Justice Department. I am not aware of any precedent for appointment of an official who has not been confirmed by the Senate to serve as Acting Attorney General. While an Acting Attorney General was appointed under the VRA in 2007, the official in that instance – Assistant Attorney General Peter D. Keisler – was already serving in a Senate-confirmed position in the Department. Given that Deputy Attorney General Rod Rosenstein has been confirmed by the Senate and is next in the line of succession established by law, I see no legitimate reason for you to have taken the unprecedented step of naming Mr. Whitaker instead. As an unconfirmed political appointee, Mr. Whitaker has not been subject to the scrutiny that the Constitution requires to ensure that he has the character, integrity and ability to fulfill the grave responsibilities of this job. These concerns are heightened by specific expressions of bias against the Special Counsel investigation that Mr. Whitaker made just last year.
The appointment of Mr. Whitaker is further clouded by unresolved constitutional questions about the legality of such an action. The Appointments Clause of the Constitution requires all principal officers of the government to be nominated by the President by and with the advice and consent of the Senate. The Framers included this provision to ensure no one person can fill every principal office in the government.
The Attorney General, as head of the Department of Justice, is unquestionably a principal officer. It is not clear to me how your appointment of an unconfirmed official as Acting Attorney General comports with this constitutional mandate – either on its face or intent. I therefore ask that you please provide written answers to the following questions:
1. What were the specific reasons behind your decision to disregard the Justice Department’s statutory line of succession and bypass Deputy Attorney General Rosenstein in order to install Mr. Whitaker as Acting Attorney General?
2. Did you discuss this decision with any other Administration officials or any individuals outside the Administration? If so, please provide the names of any such officials or individuals.
3. Did you seek advice from the Justice Department Office of Legal Counsel regarding your authority to make this appointment? If so, please provide a copy of any such advice. If not, why not?
4. Did you have any discussions with Mr. Whitaker regarding the Special Counsel investigation prior to this week’s appointment?
5. Did you ask or receive from Mr. Whitaker a pledge of loyalty to you?
I hope you agree with me that the integrity and independence of any person serving in the position of Attorney General of the United States is of the utmost importance. I therefore urge you to provide answers to these urgent questions as soon as possible.
Charles E. Schumer
United States Senator