Flanary Law Firm defends client by challenging Trump’s choice for Acting Attorney General
Flanary Law Firm, PLLC, filed a Motion to Dismiss for Lack of Authority to Prosecute in Federal court on Monday, November 12, in two federal criminal cases to challenge Matthew Whitaker’s appointment as Acting Attorney General.
In the first challenge of its kind, Attorney Donald H. Flanary, III., asked Federal courts to weigh in on whether President Trump can bypass vital checks and balances—the advice and consent of the Senate—in naming one of the most consequential positions in his administration.
If Trump can appoint Whitaker, he can violate the text and spirit of the Appointments Clause of the U.S. Constitution and the Attorney General-specific Succession Act, 28 U.S.C. 508(a).
Attorney General Succession Act
The arguments against Whitaker’s appointment rely in part on the Attorney General Succession Act, which stipulates that the Deputy Attorney General (“DAG”) Rod Rosenstein should automatically take over Jeff Sessions’ position upon Sessions’ forced resignation.
The DOJ argues in a memorandum by the Office of Legal Counsel that the Federal Vacancies Reform Act of 1998 (“FVRA”) provides an alternative option for the President to designate a non-Senate confirmed officer to a vacant office when they are an officer or employee within the same agency as the vacancy and he or she has been in the agency for at least 90 days in the 365 days preceding the vacancy, in a position for which the rate of pay is equal to or greater than the minimum rate for GS-15 of the General Schedule. 5 U.S.C. § 3345(a)(3). As one legal commentator noted, “if the 1998 Congress truly did what OLC claims, it would, indeed, constitute a sea change from the rules the legislature had prescribed for the preceding 130 years—a system that worked well and to which no one (as far as we know) ever publicly objected.”
We believe the Attorney General Succession Act is more specific, and therefore the applicable statute. Not only that, but the FVRA cannot displace the Appointments Clause of the US Constitution, which requires the President to appoint principal officers, such as the Attorney General, by and with the advice and consent of the Senate. U.S. Const., art. II, § 2, cl. 2.
The Appointments Clause is not an empty formality. – Justice Thomas
Appointments Clause of the United States Constitution
The DOJ tries to claim the case of United States v. Eaton, 169 U.S. 331 (1898), settles the Appointment Clause dispute in their favor. In that case, a deathly-ill consul to the country of Siam (now Thailand), Sempronius Boyd, appointed an aid, Eaton, as a non-Senate confirmed “acting” consul to work in an interim capacity until Boyd’s Senate-confirmed replacement could be named. The DOJ argues that “a vice consul charged temporarily with the duties of the consul” is an inferior officer. So, even though the Attorney General is a principal officer (requiring Senate confirmation), an individual serving in the Acting position is not a principal officer.
The DOJ attempts to minimize the Supreme Court’s holding in Edmond v. United States, 520 U.S. 651 (1997), where the court described inferior officers as “officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.” Id. at 663. This would obviously include the role of Acting Attorney General. The DOJ relies on the Court’s note that there is no “exclusive criterion for distinguishing between principal and inferior officers.” Id. at 661.
Morrison v. Olson, 487 U.S. 654 (1988), the case which holds the office of Attorney General is a principal office, also states that a non-Senate confirmed officer who performs the principal’s duties “for a limited time and under special and temporary conditions” is not “thereby transformed into the superior and permanent official.” Id. at 672-73.
The limit on Whitaker’s time as Acting AG, according to the OLC’s view, is 210 days (per the VRA 5 U.S.C. § 3345(a)(3)). Seeing as how the Eaton holding emphasized the “limited time” and “special and temporary conditions,” do those same conditions apply here?
In this situation, President Trump bypassed multiple Senate-confirmed officials at the Department of Justice to appoint a vocal opponent of the Mueller investigation and someone who may have advised Trump’s campaign. President Trump also created this vacancy—in other words, he created the exigency—by forcing Sessions into resignation versus Sempronius Boyd’s spontaneous and serious illness in Eaton. Additionally, Whitaker, an agency employee, now has authority over multiple Senate confirmed officers—the DAG, the Solicitor General, the head of the Office of Legal Counsel, other Assistant Attorneys General, and all confirmed U.S. Attorneys. Was this Congress’s intent with the FVRA? Was it the Court’s intent with Eaton (a case that dealt with a real exigency)? Why didn’t President Trump have another person in mind to replace Sessions, considering President Trump’s long-simmering tension with Sessions and repeated urgings to resign?
We cannot cast aside the separation of powers and the Appointments Clause’s important check on executive power for the sake of administrative convenience or efficiency. – Justice Thomas
In the recent case National Labor Relations Board v. SW General Inc., 137 S. Ct. 929 (2017), the Court ruled that an appointment was statutorily prohibited before reaching the Appointments Clause question. In his concurrence, Justice Thomas argued that the appointment of a non-Senate confirmed individual to act as the general counsel of the N.L.R.B. also violated the Appointments Clause. “Appointing principal officers under the FVRA, however, raises grave constitutional concerns because the Appointments Clause forbids the President to appoint principal officers without the advice and consent of the Senate,” Thomas wrote.
Justice Thomas suggested two considerations for compliance with Appointments Clause:
- Whether the appointed person’s position is an Officer of the United States within the meaning of the Appointments Clause and, if so,
- Whether he is a principal officer who can be appointed only by and with the advice and consent of the Senate.
The OLC memo implies that the office of Acting Attorney General is not a principal office because across the history of this country, the President has had the authority to appoint acting officers and they were not considered principal officers. They were inferior officers by the very fact that they were only acting in for a “limited time” and under “special and temporary conditions.” Eaton, 169 U.S. at 343.
What the OLC memo failed to mention in its scan of historical Presidential appointments was that it could not identify any other appointment by a President that skipped over an agency’s already Senate-confirmed officials (until now). Between the founding of the Department of Justice in 1870 to 2007, a President has never attempted to bypass the AG Succession statute.
Eaton appears to hold that, at the very least, President Trump must act expeditiously in appointing a Senate-confirmed replacement as AG. Reports out of the White House, however, suggest that the President may have dug in and will not appoint anyone into the AG position in the near future.
Standing to Challenge the Acting AG
Our case has another hurdle to overcome—whether the Acting Attorney General, if deemed invalidly appointed, necessarily invalidates the authority of the Department of Justice to continue in the prosecution of our client. We argue that the AG is statutorily designated to perform or delegate almost all of the functions of the DOJ under 28 U.S.C. § 509. It follows that the Department of Justice, its subordinates, all United States Attorneys and assistants, are without a lawful executive officer to invest them with authority. In fact, the prosecutors in our case are likely going to need direction from the DOJ, rather than their immediate U.S. Attorney, to know how the DOJ should respond in this and other cases making the same challenge. Is Whitaker involved in that decision-making?
Our first hearing on this issue will be held at 9:00am on Monday, November 26 in Judge David A. Ezra’s courtroom for the case of USA v. Valencia et al, Cause No. 5:17-cr-00882-DAE. The public is welcome in the courtroom during arguments.