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Whitaker’s Appointment as Acting Attorney General Is Statutorily Illegal

Jed Shugerman
Posted on November 9, 2018

President Trump has designated Matthew Whitaker as acting attorney general to replace Jeff Sessions. Neal Katyal and George Conway and others, citing Justice Clarence Thomas, have argued that the appointment violated the Constitution’s Appointments Clause, because Whitaker was never confirmed by the Senate for his original office, and cannot become a “principal” officer. I am suggesting another reason: The appointment did not follow Congress’s statutory rules for vacancy appointments, based on both a close textual reading and a broader purpose-based reading of those statutes. [Update: I’m now emphasizing purposive more than textual.]

Trump relied on a federal law called the Vacancies Reform Act that generally addresses the filling of temporary vacancies. But this appointment is impermissible based on a fair reading of the statute that more specifically governs the Department of Justice. ... If Sessions had forced Trump to fire him, rather than resign, Trump would not have been able to pick Whitaker. But many commentators have suggested that Sessions’s resignation makes the Vacancies Reform Act applicable, and means the president has more discretion to choose an acting officer like Whitaker.

However, the Vacancies Act does not apply* [see update on exclusivity below] when “a statutory provision expressly—(A) authorizes . . . “the head of an Executive department, to designate an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity; or (B) designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity” (5 U.S.C. § 3347(a)(1)).

And it turns out that there is a more specific statutory provision for the Department of Justice. 28 U.S.C. § 508 states:

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