Is The Appointment Of Acting Attorney General Whitaker In Line With The Constitution?

Nov 9, 2018
Originally published on November 9, 2018 8:02 pm
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AILSA CHANG, HOST:

Shortly after firing Jeff Sessions Wednesday, President Trump appointed Matthew Whitaker as his acting attorney general, an installation that some are calling unconstitutional. Neal Katyal is one of those people. He's a former acting solicitor general and now a professor of constitutional law at Georgetown University. Welcome.

NEAL KATYAL: Thank you.

CHANG: So you and another lawyer, George Conway, who we should point out is the husband of White House counselor Kellyanne Conway - the two of you set forth an argument in an op-ed for The New York Times in which you say the president's appointment of Whitaker as acting attorney general is a betrayal of the Constitution. Explain your argument.

KATYAL: Yeah, I mean, it's a pretty simple argument. You know, I grew up at a time when attorneys general used to have to be confirmed by the Senate. You know, that's actually what our Constitution says. It requires principal officers - and heads of departments are kind of the paradigmatic case. And the attorney general's the paradigmatic case of a head of a department. For people like that, you need Senate confirmation. And Justice Thomas actually wrote an opinion about this three years ago. And the basic idea was that the founders feared a corrupt executive. They obviously had the experience of King George III. And what they said was, we're going to vest executive power in this president, but we need checks and balances within the executive branch itself.

CHANG: You cite support from Justice Clarence Thomas. And we should note that no one else on the court joined Thomas' concurring opinion in the case that you're referring to from three years ago.

KATYAL: So it wasn't squarely presented in the case, but Justice Thomas states what I think is actually a pretty not-controversial view, which is the point of Senate confirmation is massive. And it's why our founders put it in the document, because we don't trust an executive to just put his own people in. And look; I can totally accept that you're going to have emergency situations where you don't have a Senate-confirmed official. But this is the opposite of that.

President Trump bypassed his own people - the confirmed deputy attorney general, the confirmed No. 2, Rod Rosenstein, and then the solicitor general, the No. 3 person, Noel Francisco. Both of those people were nominated by the president, by President Trump, and confirmed by the Senate. And you have to ask yourself, huh, why is it that the president bypassed those people and put a constitutional nobody in place, a constitutional nobody who happens to have been taking views for the last several years out in public that Mueller's investigation was problematic?

CHANG: You know, when President Trump was asked about this earlier, he said Whitaker has been confirmed by the Senate before, back in 2004, when he was confirmed to become U.S. attorney in Iowa. What do you make of that argument?

KATYAL: The idea that Whitaker being confirmed in 2004 allows him to serve as the attorney general today is preposterous. It was in 2004 with a different Senate and a different president. And most importantly, it was for a completely different role. I mean, the attorney general of the United States is a role of massive responsibility that supervises all the 94 prosecutors, not just the prosecutor in Iowa but everyone. And I think it would be the height of irresponsibility for the president to trot that argument out.

CHANG: It sounds like based on your argument, you're suggesting someone should be in front of a judge very soon to make this case. But who would make that challenge? I mean, who would have standing to sue at this point?

KATYAL: There are going to be many court cases on this because the Justice Department and the attorney general is the nation's most frequent litigant. They're in court literally hundreds of times every day. And anyone who is facing adverse action by the Justice Department can now walk into court and say, that's a fake attorney general; this is not a real process and seek to have the acting attorney general disqualified from acting on the case in any way, shape or form.

CHANG: What bothers you the most out of all of this?

KATYAL: The thing that bothers me the most is President Trump's attitude toward the Constitution. This is a president who treats the Constitution like a tax code, looking for a loophole here and a loophole there, instead of trying to understand what this grand document is that our founders gave us. I mean, our founders were concerned about precisely this - a president who is self-dealing in putting his own interests above those of the country.

CHANG: Neal Katyal was an acting solicitor general under President Barack Obama. Thank you very much for joining us today.

KATYAL: Thank you so much. Transcript provided by NPR, Copyright NPR.