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November 18, 2018

Our illegal AG: Matthew Whitaker’s appointment is almost certainly invalid

November 9, 2018
No good. (Charlie Neibergall / AP)

Plot twist: The appointment by President Trump of Mueller investigation foe Matthew Whitaker as acting attorney general, filling the shoes of ousted Jeff Sessions, is probably illegal and unconstitutional, rendering his every order invalid.

So say leading legal lights across the political spectrum, from former Obama Acting Solicitor General Neal Katyal to George Conway (who happens to be married to Trump adviser Kellyanne Conway) to top George W. Bush aide John Yoo.




To serve, a principal officer — which is what the head of the Justice Department is by any definition — must first get advise and consent of the Senate. That’s well established legal precedent drawn from a plain reading of the words of the government’s founding document.

Of course in a pinch, before the Senate gives its okay, someone else in the Senate-confirmed DOJ chain of command can step up and fill a leadership gap. But that’s not what Whitaker is; he was Sessions’ chief of staff, not next in line and Senate-approved.

If Trump wants to argue otherwise, let him make the case to the Supreme Court. See if he can convince five men who purport to revere the original meaning of the Constitution to jump through the logical hoops necessary to flagrantly disregard its plain intent.

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