Government

Who Is Matt Whitaker And Why Is He Illegally Pretending To Be The Attorney General?

Replacing the Confederate Attorney General with an illegal one.

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Jeff Sessions, the lawful evil Darth Vader to Trump’s chaotic evil Joker, is out. I will waste no time mourning the end of his reign of terror over black and brown communities. Sure, any Trump appointee would have tried to do the same thing, but Sessions was devilishly effective.

Sessions is exceptional in the Trump orbit, not for his evil but for his competence. Outside of people, like Sessions, foisted upon him by Republicans in the Senate, Trump tends to hire bumbling sycophants. My official prediction is that Trump will eventually tab the obviously corrupt Pam Bondi to head the Department of Justice. But he could also look at Kris Kobach, one of the most buffoonish public servants of our lifetimes.

Such choices would be damaging to the country, but not nearly as creatively destructive as Jeff Sessions. I’m actively rooting for Kris Kobach. I can’t wait to read his typo-laden guidance requiring black people to present a white friend who will vouch for them before they can vote. It’ll be a fun case.

But before we get to the next attorney general, we have to deal with the “acting” one. Trump picked Jeff Sessions’s chief of staff, Matthew Whitaker, to head main Justice until a permanent replacement can be found.

Trump will probably have to wait till after the New Year to find a permanent Attorney General. Which means Whitaker will be tasked with the most important task Trump believes exists: dismantling the Mueller investigation before Trump or his children can be indicted by the special counsel.

Whitaker is a graduate from Iowa Law School. He played tight end for Iowa in the Rose Bowl. Iowa is a pretty good school, but somehow Whitaker graduated with the belief that Marbury v. Madison was “wrongly decided.” That’s the kind of hot take one would expect from a person who attended an SEC law school, not the Big Ten.

Whitaker doesn’t think there should have been a special counsel investigation into Russian meddling at all because… what about Hillary Clinton. Really, he’s a “whatabout-er.” Whitaker will fit in just fine with the Trump administration’s celebration of mediocrity and slavishness.

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Yet, Whitaker’s legal qualification are not why he is unqualified for his appointment. His problem is that his current job has not been Senate confirmed.

The Federal Vacancies Reform Act sure seems to require the president to replace Senate-confirmed positions with people who have already been Senate confirmed. Whitaker was technically confirmed by the Senate in 2004, when he was appointed as U.S. Attorney for the Southern District of Iowa. But he no longer holds that job. His current job, chief of staff to the AG, neither required nor received Senate approval.

That’s a problem. Don’t take it from me, take it from senior Fox News legal analyst Andrew Napolitano.

“Under the law, the person running the Department of Justice must have been approved by the United States Senate for some previous position. Even on an interim post,” Napolitano told Fox News’ Dana Perino.

Or perhaps you’d like to hear it from one of Trump’s favorite justices, Clarence Thomas. Here’s Thomas concurring in NLRB v. SW GENERAL, INC., striking down an Obama appointment, and ruling that an “acting” office holder is also subject to advice and consent requirements of the appointments clause:

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I recognize that the “burdens on governmental processes” that the Appointments Clause imposes may “often seem clumsy, inefficient, even unworkable.” INS v. Chadha, 462 U. S. 919, 959 (1983). Granting the President unilateral power to fill vacancies in high offices might contribute to more efficient Government. But the Appointments Clause is not an empty formality. Although the Framers recognized the potential value of leaving the selection of officers to “one man of discernment” rather than to a fractious, multimember body, see The Federalist No. 76, p. 510 (J. Cooke ed., 1961), they also recognized the serious risk for abuse and corruption posed by permitting one person to fill every office in the Government, see id., at 513; 3 J. Story, Commentaries on the Constitution of the United States §1524, p. 376 (1833). The Framers “had lived under a form of government that permitted arbitrary governmental acts to go unchecked,” Chadha, supra, at 959, and they knew that liberty could be preserved only by ensuring that the powers of Government would never be consolidated in one body, see The Federalist No. 51, p. 348. They thus empowered the Senate to confirm principal officers on the view that “the necessity of its co-operation in the business of appointments will be a considerable and salutary restraint upon the conduct of ” the President. The Federalist No. 76, at 514; 3 Story, supra, §1525, at 376–377. We cannot cast aside the separation of powers and the Appointments Clause’s important check on executive power for the sake of administrative convenience or efficiency. See Bowsher v. Synar, 478 U. S. 714, 736 (1986).

Trump cannot elevate Whitaker, and any senator concerned about the separation of powers would tell him so.

Of course, the Republicans who control the Senate are craven and beholden to Donald Trump. And Trump himself disregards every law, norm, or rule that would constrain his power.

If Matt Whitaker were an honorable lawyer, he would refuse the appointment.

I won’t hold my breath. Like I said, Trump generally looks for corrupt sycophants to do his bidding, and Whitaker is fits in just fine.

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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