Can He Fire Mueller? Trump’s Appointment of Acting Attorney General Raises Important Legal Questions

Tessa Berenson

With one tweet less than 24 hours after the midterm elections, President Donald Trump ousted the head of the Justice Department and promoted his chief of staff in his place.

Matthew Whitaker, a former U.S. attorney in Iowa who had been serving as Jeff Sessions’ top staffer in the Justice Department, is now acting attorney general.

“He was very, very highly thought of,” Trump told reporters Friday morning. “Matt Whitaker is a very smart man. He is a very respected man in the law enforcement community.”

But Whitaker’s appointment raises some key questions about Robert Mueller’s investigation and what comes next in the Justice Department. Here are the three most important questions currently being discussed.

Is Whitaker’s appointment unconstitutional?

That’s what Neal Katyal, former acting solicitor general under President Obama, and George Conway, a conservative lawyer and husband of top Trump aide Kellyanne Conway, argue in a New York Times op-ed. According to them, it is unconstitutional for Whitaker to be named acting attorney general under the Appointments Clause of the Constitution, which says that “principal officers” of the United States must be nominated by the president and confirmed by the Senate.

The problem with Whitaker is that, as Sessions’ chief of staff, he wasn’t Senate-confirmed. (He was confirmed by the Senate to be a federal prosecutor in Iowa, but that was 14 years ago.)

“Constitutionally,” Katyal and Conway write, “Matthew Whitaker is a nobody.”

In other words, under this line of legal reasoning, Trump could have appointed the deputy attorney general or the solicitor general to fill the post, because both are Senate-confirmed positions. Or he could have appointed Whitaker to fill a lower vacant position in the Justice Department that isn’t considered to be a “principal officer.”

“For the president to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document,” they write.

In response, a Justice Department spokesman tells TIME, “The VRA was passed in 1998 and Acting Attorney General Whitaker’s appointment was made pursuant to the procedures approved by Congress.”

“The VRA” refers to the Federal Vacancies Reform Act. In this case, Trump has relied on a provision of that act that says the president can choose any senior Justice Department official to serve as acting attorney general as long as that person has served in a high-level position for 90 days. Under this rule, Whitaker qualifies for the temporary position.

It’s an unresolved question about which argument would prevail in court in a situation like this. in 2003, the Office of Legal Counsel wrote that someone serving in an acting capacity, even in a principal role, is still an inferior officer because they’re only serving in that role temporarily. Under that interpretation, Whitaker’s appointment is fine.

But in a Supreme Court decision last year, Justice Clarence Thomas, arguably the most conservative justice on the court, wrote a concurring opinion that suggests he wouldn’t be inclined to accept the Justice Department’s reading of the VRA in this case.

In a 2017 case, the Supreme Court found on statutory grounds that the general counsel of the National Labor Relations Board had been unlawfully appointed to his job without Senate confirmation. Thomas wrote a concurrence arguing that it was also unconstitutional under the Appointments Clause, because he found the role to be a principal position.

“Granting the President unilateral power to fill vacancies in high offices might contribute to more efficient Government,” Thomas wrote. “But the Appointments Clause is not an empty formality. … [The Framers] recognized the serious risk for abuse and corruption posed by permitting one person to fill every office in the Government.”

What power does Whitaker have over Mueller’s investigation?

Trump said Friday that he hasn’t talked to Whitaker about Mueller’s probe, and when asked whether he wants Whitaker to rein in the investigation, the president snapped, “What a stupid question.”

In fact, it’s one of the most critical questions now facing the Justice Department and the country. When former Attorney General Jeff Sessions recused himself from overseeing the investigation because of his role in Trump’s presidential campaign, Deputy Attorney General Rod Rosenstein took over those duties. But now Whitaker, even in an acting capacity, assumes all of the power of attorney general and thus could take control of the investigation back from Rosenstein. When asked whether Whitaker would oversee Mueller’s investigation, Justice Department spokeswoman Sarah Flores told TIME, “The Acting Attorney General is in charge of all matters under the purview of the Department of Justice.”

That means Whitaker can take over the investigation almost immediately. “He could certainly opt to leave Rosenstein in charge,” says John Bies, chief counsel at American Oversight who was deputy assistant attorney general in the Office of Legal Counsel under President Obama, “but I think he wouldn’t need to take any affirmative step to claim supervision other than to just tell Rosenstein, ‘I’m here, I’m not recused, get me up to speed.’”

The special counsel’s office declined to comment.

Now, Whitaker can limit the scope of Mueller’s investigation if he chooses to through funding decisions, by not allowing Mueller to pursue certain topics, or by declining requests on whether or not to prosecute someone, among other tactics.

He could also fire Mueller, though he is bound by Justice Department regulations that say he can only fire a special counsel “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.”

Should Whitaker recuse himself from the Mueller investigation?

Democrats have already begun calling for Whitaker to recuse himself like Sessions did and leave the investigation in Rosenstein’s hands.

In a letter to Trump, Senate Democratic Leader Chuck Schumer wrote that his concerns about Whitaker’s appointment “are heightened by specific expressions of bias against the Special Counsel investigation that Mr. Whitaker made just last year.” New York Rep. Jerrold Nadler, the top Democrat on the House Judiciary Committee, said in a statement that it would be “wholly inappropriate for Mr. Whitaker to supervise the Special Counsel investigation given his documented history of opposition to it.”

In May 2017, before he worked for Sessions and before a special counsel was appointed, Whitaker wrote an op-ed in The Hill opposing the idea of appointing a special counsel or independent prosecutor. “Serious, bipartisan congressional investigations into the Russian allegations have been under way for weeks and they have made progress,” Whitaker wrote. “Hollow calls for independent prosecutors are just craven attempts to score cheap political points and serve the public in no measurable way.”

In a CNN op-ed published later that year, Whitaker wrote that, based on reports that Mueller’s team was looking into Trump Organization finances, “Mueller has come up to a red line in the Russia 2016 election-meddling investigation that he is dangerously close to crossing.”

“If he were to continue to investigate the financial relationships without a broadened scope in his appointment, then this would raise serious concerns that the special counsel’s investigation was a mere witch hunt,” Whitaker wrote. “If Mueller is indeed going down this path, Rosenstein should act to ensure the investigation is within its jurisdiction and within the authority of the original directive.”

In August 2017, he tweeted an article was “worth a read” that referred to Mueller’s team as a “lynch mob.” And last year he also told CNN that he could envision Sessions being replaced with an attorney general who “reduces (Mueller’s) budget so low that his investigation grinds to almost a halt.”

In addition, in 2014, Whitaker helped run a campaign for Sam Clovis, who is now a witness in the Mueller investigation.

When asked Friday if he expects Whitaker to be involved in the Russia probe, Trump said, “That’s up to him.”

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