Opinion | Whitaker May Be a Bad Choice, but He’s a Legal One

AUSTIN, Tex. — President Trump’s selection of Matthew Whitaker to serve as acting attorney general has provoked alarm across the political spectrum, and for good reason. But as troubling as Mr. Whitaker may turn out to be for the rule of law, Mr. Trump was acting within the scope of his constitutional authority. The move was legal, so long as it is temporary, which the law defines as up to 210 days.

That’s not to say that Mr. Whitaker, who until Wednesday had been chief of staff to Attorney General Jeff Sessions, should take over the Justice Department even temporarily. He appears not only to be stunningly unqualified to serve as the nation’s chief law enforcement officer but also to have radical — and deeply troubling — views about the role of the federal courts in our constitutional system. And perhaps most important, as acting attorney general, Mr. Whitaker also takes over supervision of Robert Mueller, the special counsel, even though he has been an unabashed and highly partisan critic of Mr. Mueller’s investigation and almost certainly has an insurmountable professional conflict of interest that ought to force him to recuse from such a role.

Perhaps animated by those concerns, a broad and growing array of commentators, lawyers and scholars have argued that Mr. Whitaker’s appointment violates the Constitution, including, in an Op-Ed this week in The Times, the bipartisan pair of lawyers Neal Katyal and George Conway. At its core, their objection is that because Mr. Whitaker was not confirmed by the Senate to his previous post as chief of staff, and because other Senate-confirmed officers within the Justice Department (such as Deputy Attorney General Rod Rosenstein) are available, Mr. Whitaker is constitutionally ineligible to serve as acting attorney general, even on a temporary basis.

Although it is easy to see why this argument is so alluring, it’s ultimately unconvincing as a matter of both constitutional text and structure. Let’s unpack it.

Except during Senate recesses, the Appointments Clause of Article II requires that the president nominate and the Senate confirm all “principal” federal officers. Clearly, the attorney general of the United States is a principal officer, and so the president could not permanently fill that post without the Senate’s advice and consent. The argument against Mr. Whitaker’s appointment rises and falls on the assumption that someone who temporarily exercises the duties of a principal officer must be a principal officer — or at the very least, an “inferior officer” like the deputy attorney general or solicitor general, who have already been confirmed by the Senate to those posts.

But in an 1898 decision, United States v. Eaton, the Supreme Court rejected the argument that only a principal officer confirmed by the Senate can temporarily fill the shoes of another principal officer. So long as an inferior officer is exercising the duties of the principal officer “for a limited time, and under special and temporary conditions,” the court said, he “is not thereby transformed into the superior and permanent official.” The Supreme Court in Eaton did not go on to define what “a limited time” or “special and temporary conditions” entails, but it made clear that those are the key constitutional considerations.

In the Federal Vacancies Reform Act of 1998, Congress elaborated on those missing pieces. When a senior executive branch officer “dies, resigns, or is otherwise unable to perform the functions and duties of the office,” the statute authorizes the president to choose either that official’s “first assistant” (in this case, Deputy Attorney General Rosenstein); any other currently serving government officer who was confirmed by the Senate; or any senior official, like Mr. Whitaker, who served in the same department as the vacant office for at least 90 of the previous 365 days “to perform the functions and duties of the vacant office temporarily in an acting capacity.”

A separate provision of the statute limits that designation to 210 days, unless the president nominates a permanent successor in the interim. Other laws distinguish between those duties Mr. Whitaker may carry out as acting attorney general and those limited to an attorney general confirmed by the Senate. For instance, the acting attorney general is expressly allowed to sign an application for a warrant under the Foreign Intelligence Surveillance Act but is expressly excluded from the line of succession to the presidency.

Nor is there any argument that the 1998 law is inapplicable because Mr. Sessions did not resign and instead was fired. His departure may not have been voluntary, but rather than force the president to fire him (as did Preet Bharara, the former United States attorney for the Southern District of New York), Mr. Sessions’s letter to the president formally stated that he was “submitting my resignation” at his request.

That the president can name temporary department heads without Senate confirmation is more than just a legal fine point; in many settings, it can be important to the effective functioning of government. A contrary rule could cause major headaches for a new president confronted with vacancies across the senior levels of government. Moreover, it could empower a Senate that is hostile to the president or to particular federal agencies to suffocate those entities by refusing to confirm anyone to run them.

Of course, that’s not the situation the president faced after asking for the resignation of Mr. Sessions. The Justice Department currently includes in its leadership a number of Senate-confirmed inferior officers, and if the pool is expanded to the entire federal government, the president would have hundreds of Senate-confirmed men and women from whom to choose. But there’s no textual basis in the Constitution for concluding that the president should have to name one of those officers first or that an inferior officer not confirmed by the Senate should be allowed to exercise only the duties of a principal officer when no Senate-confirmed inferior officers are available to do so. Such requirements may well be wise as a matter of policy, but it should be for Congress, not the courts, to impose them.

And that may be the real lesson of the increasingly vocal objections to the Whitaker appointment: For better or worse, Congress in 1998 authorized the president to name agency officials not confirmed by the Senate, like Mr. Whitaker, to exercise the functions even of cabinet officials on an acting, time-limited basis, whether or not Senate-confirmed officials were available. The objections to Mr. Whitaker’s appointment highlight why it may be bad policy to permit such an appointment — and why Congress may be well advised to so modify the law.

But to avoid Justice Oliver Wendell Holmes’s warning that “hard cases make bad law,” we shouldn’t let bad policy as applied to bad choices encourage us to make bad constitutional law.

Stephen I. Vladeck teaches courses on constitutional and national security law at the University of Texas School of Law.

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