No one is surprised that Jeff Sessions is out. But is the nomination of his substitute unconstitutional?

Then Attorney General Jeff Sessions speaks in Portland, Maine on July 13th. (Robert F. Bukaty / AP)

President Trump eventually eliminated Jeff Sessions as attorney general, the day after the mid-term elections, it was no surprise. Angry at the decision of Sessions to refuse the investigation of the special prosecutor Robert S. Mueller III on the Russian interference in the 2016 campaign, Trump had frequently flung himself against what he called the "Justice" Department. He made fun of Sessions there as "DISGRACEFUL!" and also (at least according to Bob Woodward, though Trump denied) defined his AG as a "mental retard". . . stupid Southerner. "

Trump's choice to intervene as attorney general in office, Matthew G. Whitaker, immediately attracted political fire. This was not surprising, too. Whitaker, who was serving as head of Sessions' staff, has often publicly attacked Mueller's probe and the courts. He also presided over the Sam Clovis campaign for the Iowa State Treasurer – before Clovis co-chaired the 2016 Trump campaign and appeared as a witness to Mueller's grand jury.

As a result, Democratic senators, ethics groups and general prosecutors they are also asking Whitaker to refuse to oversee the Mueller investigation. The state attorneys general, for example, told Whitaker that his past comments meant "a reasonable person could question your impartiality in the matter". Even some GOP lawmakers have weighed Sen. Susan Collins (R-Maine) who states that "Mueller must be allowed to complete his work without interference – regardless of who AG is."

Yet, just as Whitaker suggested that he was not going to refuse himself (yet another non-shocking one), some surprising news came. In a New York Times Thursday pamphlet, well-known constitutional lawyers Neal K. Katyal and George T. Conway III argued that Whitaker's appointment was not only unwise but also unconstitutional.

The legal argument depends on the federal law on the 1998 vacancy reforms (FVRA), which establishes who can serve in a role of acting, and for how long, when a senior government official resigns. (It is less clear how it is applied when someone is fired – therefore, the fact that Sessioni has resigned, even under duress, is important.)

The federal law on the reform of vacancies offers three ways to replace a government official

Fundamentally, FVRA offers three options. Firstly, the official "first assistant" can intervene. At the Justice Department, it would be Deputy General Attorney Rod J. Rosenstein, whom many think is already in Trump's line of fire. Rosenstein, as you will remember, proposed to use 25th Edit to remove Trump from the office.

Secondly, the president can choose someone else for the job – as long as that person is currently serving in a position confirmed by the Senate. This is the way in which Mick Mulvaney, confirmed by the Senate in 2017 as director of the Office of Management and Budget, is able to act as director of the Office of Consumer Financial Protection without further revisions to the Senate .

Thirdly, the president can choose someone who is not confirmed by the Senate, provided he is a senior official paid at least at the GS-15 level of the federal civil service wage scale (about $ 135,000 in Washington). Normally this would mean a government employee in career, not a political appointee, but not invariably.

Trump chose the door n. 3, appointing Whitaker, whose only confirmation by the Senate dates back to 2004, when he became a US lawyer. He left that job in 2009; the chief of staff did not request confirmation. But it meets the salary threshold, and therefore qualifies Whitaker to serve under the FVRA for a period of 210 days.

But these two scholars argue that FVRA itself is unconstitutional – and Clarence Thomas cites justice

But there is still a problem, according to Katyal and Conway: they argue that the same FVRA prevails over the constitutional provision that all the "chief officers" will receive confirmation from the Senate. The attorney general, supervised only by the president, is certainly a principal official. And so the case, they claim, is open and closed:

We can not tolerate such an evasion of the explicitly textual and textual design of the Constitution. … For the president to install Mr. Whitaker as our chief of order forces is to betray the entire structure of our paper document.

For reinforcement, they turn to a prominent ally: the Supreme Court Clarence Thomas. In one case in 2017, Thomas agreed with a court decision concerning FVRA, but wrote a concordant opinion that went much further.

"The appointment of the main officers under FVRA," Thomas concluded, "raises serious constitutional concerns because the nomination clause prohibits the president from appointing the principal officers without the advice and consent of the Senate." In doing so, he argued, he risked doing the "empty formality" clause.

Politically, it would be relatively easy for the Trump White House to reject a discussion coming only from Katyal; he worked for Al Gore, Barack Obama and on behalf of Guantanamo Bay inmates. But Conway's pedigree is very different. While he recently became a public critic of Trump, in the years & # 39; 90 Conway helped with the Paula Jones case that helped lead to the dismissal of Bill Clinton; he is married to the high-level Trump staff Kellyanne Conway; and he was seriously considered for the role of Trump's attorney general.

The opinion of Thomas naturally carries even more weight in conservative legal circles – and, suddenly, gold has been taken by the president's adversaries wishing to protect Mueller. If this part of the FVRA is indeed unconstitutional – the case is certainly not a crash – then any action taken by someone named in this way would be legally null.

But watch out for what you want

Even so, good government fans could pay attention to what they want. As Anne Joseph O & # 39; Connell of Stanford Law School notes: "We need the Temporary Filling Vacancies Act." The modern nomination procedure is brutal. "His research shows that one-fifth of the nominated positions may be vacant at any time – requiring acting interviews – and even appointments. success can take months. Both of these trends were probably exacerbated during the first two years of the Trump administration.

If the strange new bedfellows of this week are able to legally cut off the FVRA, it could preserve the independence of the Mueller investigation – at least for a while. But it would do so at the expense of preventing experienced career officers from switching to high-level acting roles. So winning the short-term battle could undermine the long-term war on administrative competence and stability in the government.

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