By ramming a sketchy non-Senate-confirmed loyalist into the position vacated by former Attorney General Jeff Sessions, Donald Trump has yet again called attention to something that was broken before he got there, but that now needs an urgent fix.
At issue is the Vacancies Reform Act of 1998 (VRA), and how it conforms – or doesn’t – to the Appointments Clause of Article II of the Constitution, Supreme Court precedent, and specific agency succession rules.
The Department of Justice’s Office of Legal Counsel today issued its official guidance on Trump’s appointment of Matthew Whitaker as acting attorney general and – surprise! – determined it to be legal, because Whitaker technically qualified for the job under the third and last option in the VRA, which allows the temporary appointment of any senior staffer who has been at the agency for at least 90 days.
But great legal minds differ – not just with Trump and DOJ, but with each other.
Here’s how we got here: After accepting Sessions’s forced resignation, Trump chose not to temporarily replace him with any of the Senate-confirmed officials in the department’s ordinary line of succession – the first of whom would have been Deputy Attorney General Rod Rosenstein.
Instead, Trump chose Whitaker, Sessions’s Federalist-Society- and White-House-installed former chief of staff. As Leonard Leo of the Federalist Society told CNN about picking Whitaker in the first place: “Jeff Sessions needed a reliable conservative.”
This is certainly not the first time the VRA has been found wanting. See, e.g., Vacant Reform: Why the Federal Vacancies Reform Act of 1998 Is Unconstitutional, in the Duke Law Journal in 2001.
Nor is this the first time that Trump has abused it.
A year ago, David Dayen reported for the Intercept about multiple apparent violations of the VRA, starting with Trump’s placement of Mick Mulvaney, the director of the Office of Management and Budget, atop the Consumer Financial Protection Bureau, in an acting position. Mulvaney’s one-year anniversary in that role comes up on November 25.
Dayen also wrote that a multitude of acting directors across the government, who were installed without Senate approval, were quietly dropping the “acting” title, while maintaining their leadership roles.
Brian Frosh, Maryland’s attorney general, filed the first legal challenge to Whitaker’s appointment on Tuesday, declaring that “The Attorney General’s succession statute and the Constitution protect the country against exactly what President Trump has attempted to do here – pluck an unqualified and unconfirmed partisan to be the nation’s chief law enforcement officer in order to protect the President personally rather than the rule of law.”
And as Dorf, a law professor at Cornell, explains, “even assuming Trump’s brazen moves did not violate the letter of the law or of the Constitution, his actions clearly violated their spirit.” He concludes: “If the courts fail to provide a check, Congress can.”
So members of Congress: Add legislation to fix the federal vacancy-filling process to your list of much-needed post-Trump reforms.