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Nov. 8, 2018 / 8:24 PM GMT
By Steve Vladeck, Professor, University of Texas School of Law
President Donald Trump’s removal of Attorney General Jeff Sessions on Wednesday afternoon, and his announcement that he was naming Sessions’ chief of staff, Matthew Whitaker, as acting attorney general, is an alarming development from the perspective of special counsel Robert Mueller’s ongoing investigation into Russian interference in the 2016 presidential election.
Ultimately, although the moves have raised a series of legal questions, it’s fairly clear that the president’s appointment was at least within the power that Congress has given him. Nevertheless, these developments ought to reignite concerns over the fate and future of the Mueller probe. They should also push Congress to finally pass the bipartisan legislation protecting Mueller’s investigation that was voted out of the Senate Judiciary Committee back in April.
Whitaker’s appointment does defy the traditional line of succession at the Department of Justice, however. By default, when the office of the attorney general is vacant, the deputy attorney general becomes the acting attorney general. This default rule is spelled out in the Justice Department’s succession statute, 28 U.S.C. § 508, and it’s why Deputy Attorney General Rod Rosenstein has been supervising Mueller’s investigation from the get-go (then-Attorney General Sessions had already recused himself before Mueller was even appointed.) Because there is currently no Senate-confirmed associate attorney general, the next in line after Rosenstein is the current solicitor general, Noel Francisco. As chief of staff to the attorney general, Whitaker does not appear at any place in the Justice Department’s line of succession.
Instead, Whitaker was named acting attorney general under a different statute, the Federal Vacancies Reform Act of 1998. That statute allows the president to choose from a broader pool of candidates if a holder of certain executive branch offices “dies, resigns, or is otherwise unable to perform the functions and duties of the office.” In addition to the “first assistant” to the vacant office (here, Rosenstein), the president can choose any other Senate-confirmed officer in the rest of the executive branch (think Interior Secretary Ryan Zinke) or certain non-Senate-confirmed senior officials who have served at least 90 of the last 365 days in a senior position at the same agency as the relevant office. Whitaker falls into this last category, and as the Justice Department’s Office of Legal Counsel explained in a 2007 opinion, even though Congress has also passed a DOJ-specific succession statute, the Federal Vacancies Reform Act can also apply to vacancies in senior DOJ offices.
The harder legal question is whether Sessions in fact resigned. In his undated letter to the president, Sessions wrote that, “At your request, I am submitting my resignation.” Taken together with media reports that Sessions had asked if he could remain on through the end of this week and had been rebuffed, the letter’s first clause has led some to argue that Sessions was constructively fired — because he resigned only at the president’s request.
This argument has some descriptive allure, but it is legally unpersuasive in the specific context of the Vacancies Reform Act. The question is not whether, as a practical matter, Sessions left of his own volition, but whether, formally, he “resign[ed].” Because Sessions could have refused to resign and forced Trump to fire him, it seems clear that, at least within the contours of the Vacancies Reform Act, he did, in fact, resign. Indeed, as much as any other officer in the federal government, the attorney general could certainly be expected to understand the legal significance of this linguistic distinction.
There is also a constitutional objection to having someone who has not been confirmed by the Senate serve on even a temporary basis in such a senior position. But as Justice Antonin Scalia explained in 2014, “Congress can authorize ‘acting’ officers to perform the duties associated with a temporarily vacant office — and has done that, in one form or another, since 1792.”
Although his appointment will surely be challenged in court, it appears that Whitaker is properly appointed as the acting attorney general, which means he can serve in that capacity for approximately seven months, or until a new, permanent attorney general is confirmed by the Senate — whichever comes first. (The Constitution also allows the office to be filled on a permanent basis through a “recess appointment,” but there is no indication that Congress will take a qualifying recess anytime soon.)
As acting attorney general, Whitaker supplants Rosenstein as Mueller’s immediate supervisor (unless, like Sessions, he must also recuse from the matter). As such, he inherits the authority, among other things, to control the scope of Mueller’s investigation and, if necessary, to fire him “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause.”
Given Whitaker’s sustained prior critiques of Mueller’s investigation, the million-dollar question is whether he’ll act on those critiques and take steps to influence the special counsel. He could do this in a variety of ways, whether by reducing his budget, narrowing his jurisdiction, barring him from bringing specific indictments, sitting on his final report, or going for the jugular by simply getting rid of him. Time will tell, but it’s not exactly reassuring that Trump has apparently told advisers that Whitaker was chosen because of his “loyalty.”
Worried about exactly this scenario, Congress has, since the middle of 2017, debated a series of proposals to protect Mueller and his investigation, culminating in a bipartisan bill — the Special Counsel Independence and Integrity Act — that was passed out of the Senate Judiciary Committee on a 14-7 vote back in April. Among other things, the bill would empower Congress to obtain any final report filed by Mueller, and it would provide for judicial review of whether, if Mueller is indeed fired, it was with the requisite “good cause.” But even though four Republicans joined the Democratic members of the Judiciary Committee in supporting its passage, the bill has languished ever since, with Senate Majority Leader Mitch McConnell repeatedly insisting that it’s not “necessary.”
So long as the Mueller investigation was supervised by Rosenstein, there was at least a whiff of plausibility to that argument, because there was still at least one canary in the proverbial coal mine. As of yesterday afternoon, there isn’t anymore. If passage of the bill isn’t “necessary” now, it won’t be necessary until the moment after Mueller’s investigation has been denuded, or Mueller himself has been fired. At that point, which may be coming sooner rather than later, it will be too late.