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Nobody is surprised that Jeff Sessions is on the road. But is the appointment of his representative unconstitutional?

Attorney General Jeff Sessions speaks on July 13 in Portland, Maine. (Robert F. Bukaty / AP)

That President Trump had finally supplanted Jeff Sessions as Attorney General the day after the parliamentary elections was no surprise. Angry about Sessions's decision to complain about investigating Special State Prosecutor Robert S. Mueller III's investigation into Russia's involvement in the 2016 campaign, Trump has often acted in the so-called "Justice Department". He mocked the term of sessions as "GUILTY!" and even (at least after Bob Woodward) Trump denied it) called his AG "mentally retarded". , , mute southerner. "

Trump's decision to join as Assistant Attorney General, Matthew G. Whitaker, immediately drew political fire. That was not surprising. Whitaker, who served as chief of staff of the sessions, frequently and publicly attacked the Mueller investigation and the courts. He also chaired Sam Clovis's campaign for Treasurer of the State of Iowa – before Clovis co-chaired the 2016 Trump campaign and appeared as a witness to the Muller Grand jury.

As a result, democratic senators, ethics groups and Attorneys General Whitaker also call for a withdrawal from monitoring the Müller investigation. The Attorney General, for example, told Whitaker that his comments from the past meant that a reasonable person could question your impartiality. Some GOP legislators have weighed in as well Senator Susan Collins (R-Maine): "Müller must be able to complete his work without disruption – regardless of who AG is."

But even as Whitaker suggested that he had no intention of throwing himself back (another non-shocker), came a surprising news. On a Thursday that the New York Times presented, well-known constitutional attorneys Neal K. Katyal and George T. Conway III claimed that Whitaker's appointment was not only unwise, but also unconstitutional.

The legal argument is based on the 1998 FVRA Act, which sets out who can act as a public official and how long it will take for a senior government official to resign. (It's less clear what it's like when someone gets fired – so it's important that sessions also recede under duress.)

The Vacancy Reform Act offers three options for replacing a Cabinet-level official

Basically, FVRA offers three options. First, the officer's "first assistant" can intervene. That would be the case in the Ministry of Justice Deputy Prosecutor General Rod J. Rosenstein, many believe that he is already in Trump's line of fire. You remember that Rosenstein had suggested the use of 25th Change to remove Trump from office.

Secondly, the President may choose another person for the job – as long as that person is currently in a position confirmed by the Senate. In this way, Mick Mulvaney, who was confirmed by the Senate as director of the Office of Management and Budget in 2017, can act as acting head of the Consumer Protection Bureau without additional Senate review.

Or, thirdly, the president may elect a person who is not confirmed by the Senate, as long as he is a senior official who is paid at least GS-15 salary scale (approximately US $ 135,000 in Washington). Usually this would mean a government employee, not a political employee, but not without exception.

Trump opted for Door No. 3, and named Whitaker, whose only confirmation from the Senate in 2004 when he became an American lawyer. He left this job in 2009; The position of Chief of Staff did not require confirmation. However, it meets the salary limit and qualifies Whitaker for 210 days under the FVRA.

However, these two scholars argue that the FVRA itself is unconstitutional – and cite Justice Clarence Thomas

However, according to Katyal and Conway, there is still a problem: they argue that the FVRA itself overrides the constitutional provision that all "chief officers" receive the Senate's approval. The Attorney General, who is only supervised by the President, is certainly a senior executive. And so the case is open and closed:

We can not tolerate such circumvention of the very explicit, substantive draft of the Constitution. … If the President is to appoint Mr. Whitaker as our top law enforcement officer, he must reveal the entire structure of our charter document.

To reinforce, they turn to a notable ally: Supreme Court Justice Clarence Thomas. In a case of 2017, Thomas agreed to a court ruling on the FVRA, but wrote a consensus statement that went much further.

"The appointment of FVRA chief officers," Thomas concluded, "raises serious constitutional concerns because the appointment clause prohibits the president from appointing chief officials without the advice and approval of the Senate." empty formality. "

Politically, it would be relatively easy for the Trump White House to reject an argument that comes solely from Katyal; He has worked for Al Gore, Barack Obama and on behalf of Guantanamo Bay prisoners. But Conway's pedigree is something completely different. While recently becoming a public critic of Trump, Conway helped in the 1990s with the Paula Jones case, which led to the prosecution of Bill Clinton. He is married to high-ranking Trump employee Kellyanne Conway. and he was seriously considered for the role of Trump's Attorney General.

Thomas's opinion, of course, has even more weight in conservative jurisdictions – and suddenly he was considered gold by opponents of the president who seek to protect Muller. If this part of the FVRA is actually unconstitutional (the case is hardly a slam slump) then any action taken by a person so appointed would be legally null and void.

But be careful what you want

Nevertheless, fans of a good government could be careful about what they want. As Anne Joseph O Connell of Stanford Law School Remarks: "We need the vacancy law for the temporary filling of gaps. The modern appointment process is brutal. "Their research shows that one-fifth of the vacancies can be vacant at a given time, requiring action. Both tendencies probably intensified in the first two years of the Trump administration.

If the strange new bedfellows succeed this week to legally cut off the FVRA, the independence of the Mueller investigation can be maintained – at least for some time. However, this would be at the expense of preventing seasoned career employees from entering high-level acting roles. Winning the short-term struggle could therefore undermine the long-term war over administrative capacity and stability in the government.

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