Judge Nap: Whitaker Not 'Legally Qualified' to Be Acting AG

[RonZeplin]

Judge Nap: Whitaker Not 'Legally Qualified' to Be Acting Attorney General

Trump chose Whitaker to replace Sessions.



Whitaker, according to sources, is now overseeing everything at the Justice Department, including the Russia investigation -- despite calls from Democrats to recuse himself. Trump said a permanent replacement will be nominated at a later date.
Napolitano said Whitaker, however, is not legally qualified for the role of acting attorney general because of "very precise laws" written by Congress in the wake of the Watergate scandal.


He said there are only three ways someone can become acting attorney general: if they are the deputy attorney general and the president signs an executive order to make them acting attorney general, if they are already at the Justice Department in a job that both required and received Senate confirmation or if the Senate in in recess, they can be a recess appointment.


He said none of those apply in this case, as Whitaker is not deputy attorney general, he did not receive Senate confirmation for his current role at the DOJ and the Senate is not in recess.


"So with deference and respect to what the president's trying to do -- he has every right to want whoever he wants to run the Justice Department -- he has chosen someone who does not qualify under the law to be the acting attorney general of the United States," Napolitano said.

[Swordsmyth]

Are the "very precise" laws involved Constitutional?

I doubt it and I would guess Trump is ready, willing and able to make that case to SCOTUS.

[specsaregood]

He's wrong though.

[Swordsmyth]

He's wrong though.

Are you replying to the OP or my comment?

Please explain your position in either case.

[specsaregood]

Are you replying to the OP or my comment?

Please explain your position in either case.

Judge nap is wrong. I saw the citation earlier that made him eligible, but don't recall where.

[Swordsmyth]

Judge nap is wrong. I saw the citation earlier that made him eligible, but don't recall where.

That wouldn't surprise me, Judge Swamp has been on the Russiagate hoax bandwagon from the beginning and this is a mortal threat to Meuller.

If anyone can find the citation I will give them a +Rep.

I would contend that the laws involved are unconstitutional anyway.

[RJ Liberty]

The appointment isn't constitutional, as Judge Nap has already confirmed:

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.


Anyone serving as Attorney General must be confirmed by Congress; only inferior officers can be appointed by the president. What makes an officer a principal officer is that he or she reports only to the president.

[Swordsmyth]

The appointment isn't constitutional, as Judge Nap has already confirmed:

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.


Anyone serving as Attorney General must be confirmed by Congress; only inferior officers can be appointed by the president. What makes an officer a principal officer is that he or she reports only to the president.

This is a temporary "acting" appointment and Judge Swamp didn't oppose it on the grounds you said, he opposed it based on unconstitutional laws that purport to control who the President may appoint.

[spudea]

It's called the vacancies act. Upon resignation the president can appoint anyone he wants as a temporary acting director. I think Nap just viewed this wrong thinking it's permanent. Trump hasn't been allowed a single recess appointment, which is very unusual.

[RJB]

This is where the unhinged Democrats lose it. If there is a question of legality, it goes before a court. On the other hand, if a legal question involves Trump, you go straight to impeachment. That's what I am learning on Facebook.

[dean.engelhardt]

Federal government following the constitution? That would be novel.

[oyarde]

He's wrong though.

Yes I think so , I think he can .

[RJ Liberty]

It's called the vacancies act.

Yes, the Vacancies Act. It is not part of the Constitution. The Constitution is clear; the President may not appoint officers; only lower-level inferior officers. The Constitution makes no distinction between "temporary" and "permanent". When Swordsmyth says these are "unconstitutional laws that purport to control who the President may appoint", he has it backwards: the Constitution states the President may not appoint officers, only nominate them. It is up to Congress to confirm them. While a later Act has expanded on the Constitution's stipulations, Whitaker's appointment is outside the bounds of the Constitution.

According to Lawfare:

Is the Appointment Constitutional?

The president’s decision to appoint a Department of Justice employee who is not Senate-confirmed to act as attorney general under the FVRA raises an esoteric but unresolved constitutional issue. The Appointments Clause of the Constitution provides that the president can nominate and, “by and with the Advice and Consent of the Senate,” appoint officers of the United States. It further allows that “Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” Consequently, while the clause permits Congress to authorize the appointment of “inferior officers” by the president alone or by the head of a department, it requires that any “principal officer” be appointed by and with the advice and consent of the Senate.

The attorney general—a Cabinet-level official who is the head of a major executive department and reports only to the president—is plainly a principal officer. The chief of staff to the attorney general, on the other hand, is an inferior officer appointed by the head of a department and not subject to the Senate’s advice and consent, so Whitaker has not been confirmed to his current position “by and with the advice and consent of the Senate.” While the FVRA allows the president to appoint another Senate-confirmed official to fill a vacancy, here the president has elected to rely on another FVRA provision that allows him to appoint a senior Department of Justice official who was not Senate-confirmed.
There remains an open question of whether it is constitutional to rely on the FVRA to appoint an official not serving in a Senate-confirmed position to act as a principal officer, such as the attorney general. Some—including Justice Clarence Thomas—have argued that an acting principal officer must be appointed in conformance with the Appointments Clause [of the Constitution], i.e., by and with the advice and consent of the Senate: “Appointing principal officers under the FVRA ... raises grave constitutional concerns because the Appointments Clause forbids the President to appoint principal officers without the advice and consent of the Senate.”

[Zippyjuan]

This is a temporary "acting" appointment and Judge Swamp didn't oppose it on the grounds you said, he opposed it based on unconstitutional laws that purport to control who the President may appoint.

He can act as temporary Attorney General but will need to be eventually approved by the senate if Trump wants to keep him. (nothing says how long one can stay on as "acting" Attorney General though). Since the Republicans still control the Senate, any confirmation should not be a problem.

In the Constitution’s Article II, Section 2, the President has the ability to fill executive offices under the Appointments Clause, which reads that “he shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.”

https://constitutioncenter.org/blog/...-unprecedented

[Grandmastersexsay]

The appointment isn't constitutional, as Judge Nap has already confirmed:

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.


Anyone serving as Attorney General must be confirmed by Congress; only inferior officers can be appointed by the president. What makes an officer a principal officer is that he or she reports only to the president.

The senate already approved him 10 years ago. The laws not defined in the constitution say he can be appointed to a position if he currently holds a position that required senate approval.

[Zippyjuan]

The senate already approved him 10 years ago. The laws not defined in the constitution say he can be appointed to a position if he currently holds a position that required senate approval.

His current position (prior to being named acting Attorney General) did not require senate approval.

[Swordsmyth]

Yes, the Vacancies Act. It is not part of the Constitution. The Constitution is clear; the President may not appoint officers; only lower-level inferior officers. The Constitution makes no distinction between "temporary" and "permanent". When Swordsmyth says these are "unconstitutional laws that purport to control who the President may appoint", he has it backwards: the Constitution states the President may not appoint officers, only nominate them. It is up to Congress to confirm them. While a later Act has expanded on the Constitution's stipulations, Whitaker's appointment is outside the bounds of the Constitution.

According to Lawfare:

It is an arguable position to say that the Constitution doesn't allow for "acting" appointments, Judge Swamp failed to make that argument.

I would need to hear the other side's case in favor of "acting" appointments to decide.