James Stoutenborough statement

“The question regarding the Constitutionality of President Trump’s appointment of Matthew Whitaker as the Acting Attorney General is extremely difficult to answer. According to the Appointment’s Clause of the
Constitution, the U.S. Senate must confirm of all principle officers, for which the Attorney General clearly qualifies. There is no debate whether the Attorney General is a position that must be confirmed. The debate is whether the President can appoint an Acting Attorney General without that individual having ever been confirmed for any governmental position. Though the Department of Justice has thus far refused to reveal when they were first asked to weigh in on the Constitutionality of the President’s selection (This is important because if it was before the appointment, then it was thought out in advance. If it was after, it is possible that the justification may not be on as strong of a legal footing, as it was created to justify an action after the fact), they do argue that it was Constitutional under the Vacancies Reform Act of 1998. This act stipulates that the President can do one of three things when filling a vacated position. First, by default, “the first assistant to the office” becomes the acting officer. This would mean that technically Deputy Attorney General, Rod Rosenstein, should be the Acting Attorney General. This has been the practice that has been most frequently used by previous administrations, even those before the law was passed. Furthermore, President George W. Bush designated a line of succession for each agency in
the event of an attack. This line of succession for the Department of Justice stipulates that the Deputy Attorney General would be elevated to the role of Acting Attorney General. The second option is to shift a
Senate-confirmed principle officer from another agency into the position on a temporary basis. The final option is to temporarily appoint a “senior officer or employee” of the same agency that is at a federal pay level of GS-15 (the highest pay grade). I honestly do not know if the Chief of Staff for the Attorney General is at a GS-15 pay grade, but I presume that they are.

In my opinion, given the fact that Congress explicitly outlined two Senate-confirmed alternatives (thus, satisfying the Appointment Clause of the Constitution) before providing the mechanism utilized by the President in the appointment of Mr. Whitaker, this appointment will likely be deemed unconstitutional. The Vacancies Reform Act served two primary purposes. It was designed to provide an orderly process for filling vacated positions, and it was designed to prevent a President from appointing, even on a
temporary basis, someone Congress deemed unsuitable for the position. By providing for two clearly Constitutional alternatives, Congress was clearly indicating that the first two alternatives were the preference, particularly given that the default would be the Deputy Attorney General. The third option, the one used by President Trump, was designed to allow flexibility in the event of some sort of emergency. Since the Vacancies Reform Act also mandated the creation of a line of succession for each agency, there needed to be a way to promote high-level officials that had not been confirmed to fill vacated positions if necessary. This is why the third option was created. Given this, the courts could likely rule that there were two perfectly Constitutional options available to the President, and that the third option was to be used only in an emergency situation. This would mean that the application of the third option may be unconstitutional when there were clear Constitutional alternatives available (i.e. this was not an emergency). However, given the current make up of the Supreme Court, it is not clear how they would ultimately rule on this issue.”