Matt Whitaker
Matt Whitaker was the acting U.S. attorney general. On November 20, 2024, Trump announced he would nominate Whitaker for U.S. ambassador to the North Atlantic Treaty Organization (NATO).[1]
On November 7, 2018, former Attorney General Jeff Sessions submitted his letter of resignation at President Donald Trump's request. Trump then announced on Twitter that Whitaker, who served as Sessions' chief of staff, would serve as acting attorney general until a new one was nominated and confirmed. Trump tweeted, "We are pleased to announce that Matthew G. Whitaker, Chief of Staff to Attorney General Jeff Sessions at the Department of Justice, will become our new Acting Attorney General of the United States. He will serve our Country well. We thank Attorney General Jeff Sessions for his service, and wish him well! A permanent replacement will be nominated at a later date."[2]
Read more about his appointment as acting attorney general here.
Whitaker was a Republican candidate for the United States Senate in the 2014 elections in Iowa. He formally announced his candidacy on June 3, 2013.[3][4] He was defeated by Joni Ernst in the Republican primary on June 3, 2014.[5]
Whitaker was a U.S. attorney for the Southern District of Iowa from 2004 to 2009.[3][6]
Elections
2014
Whitaker ran as a Republican candidate for the United States Senate in the 2014 elections in Iowa. He was defeated by Joni Ernst in the Republican primary on June 3, 2014.[5]
| Candidate | Vote % | Votes | ||
|---|---|---|---|---|
 Joni Ernst |
56.2% | 88,535 | ||
| Sam Clovis | 18% | 28,418 | ||
| Mark Jacobs | 16.8% | 26,523 | ||
| Matt Whitaker | 7.5% | 11,884 | ||
| Scott Schaben | 1.4% | 2,233 | ||
| Total Votes | 157,593 | |||
| Source: Iowa Secretary of State |
||||
Campaign finance summary
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Trump administration
Acting attorney general
On November 7, 2018, Attorney General Jeff Sessions submitted his letter of resignation at President Donald Trump's request. After the resignation of Attorney General Jeff Sessions, Trump announced that Whitaker, who served as Sessions' chief of staff, would serve as acting attorney general until a new one was nominated and confirmed.
Trump tweeted, "We are pleased to announce that Matthew G. Whitaker, Chief of Staff to Attorney General Jeff Sessions at the Department of Justice, will become our new Acting Attorney General of the United States. He will serve our Country well. We thank Attorney General Jeff Sessions for his service, and wish him well! A permanent replacement will be nominated at a later date."[2]
Trump's authority to appoint: support and opposition
- See also: Appointment and removal power
The following is a sample of commentary from pundits and administration officials concerning the legal authority for President Trump's authority to appoint Whittaker as acting attorney general.
Support
Office of Legal Counsel memo
On November 14, 2018, the Department of Justice Office of Legal Counsel issued a memo defending the temporary appointment of Matthew Whitaker under the Federal Vacancies Reform Act (FVRA) of 1998. It cited U.S. Supreme Court precedent and historical practice to defend the legality of Whitaker's appointment.[7]
Sarah Isgur Flores
Sarah Isgur Flores emailed Axios and said that President Trump appointed acting Attorney General Matthew Whitaker pursuant to the procedures approved by Congress in the Federal Vacancies Reform Act.[8]
David Rivkin
David Rivkin, an attorney who served under former presidents Ronald Reagan and George H.W. Bush, told Axios that officials serving in acting capacities do not occupy an official office, which means the appointments clause does not apply in the case of temporary appointments.[8]
Mark Levin
Mark Levin, a conservative talk show host and former official for the Ronald Reagan DOJ, argued on his radio show that temporary appointments are not subject to the strictures of the appointments clause of the U.S. Constitution. He said that DOJ regulations allow for acting principal officers and that such appointments have happened many times in the past.[9]
Opposition
Neal K. Katyal and George T. Conway III
In an op-ed published by the New York Times, lawyers Neal K. Katyal and George T. Conway III, husband to Trump counselor Kellyanne Conway, argued that President Trump appointed Matthew Whitaker as acting attorney general in an unconstitutional manner. They cited Justice Clarence Thomas as an authority arguing that the framers of the U.S. Constitution drafted the appointments clause requiring advice and consent from the Senate to mitigate "the serious risk for abuse and corruption posed by permitting one person to fill every office in the government." They argued that anything Whitaker would do as acting attorney general would be invalid because his appointment was, in their view, unconstitutional. [10]
John E. Bies
On the Lawfare blog on November 8, 2018, John E. Bies, a former Obama Department of Justice official, raised several questions regarding President Trump's authority to appoint Matthew Whitaker as acting attorney general:[11]
- Is the appointment constitutional?
- Bies argued that it remained an open question whether the U.S. Constitution allowed the president to rely on the Federal Vacancies Reform Act to appoint an official not serving in a Senate-confirmed position to act as a principal officer. He pointed to Justice Clarence Thomas' 2017 concurring opinion in NLRB v. SW General, Inc. writing that acting principal officers must be appointed in conformance with the appointments clause. However, Bies stated that the U.S. Supreme Court ruled in the 1898 case United States v. Eaton that a statute could allow similar special and temporary appointments without violating the appointments clause.[12][11]
- Can the Federal Vacancies Reform Act supplant the Justice Department's (DOJ) specific succession statute?
- Bies argued that Whitaker's appointment as acting attorney general complied with the FVRA; however, the succession statute of the Department of Justice provides that the deputy attorney general (in this case, Rod Rosenstein) may exercise all the duties of the attorney general in case of a vacancy. When neither the attorney general nor the deputy is unavailable, the statute says the associate attorney general shall act as attorney general. Bies wrote that the conflicting statutes raise a complicated legal question: "does the more general authority provided by the FVRA permit the president to supplant the acting attorney general designated by this department-specific statute?" He claims that statutory interpretation generally favors specific statutes over more general ones.[11]
John Yoo
John Yoo, a law professor at the University of California, Berkeley, and former lawyer for the George W. Bush DOJ, argued that Whitaker cannot serve as acting attorney general despite the Vacancies Act because that law is unconstitutional when applied in this case. Yoo thought the FVRA was unconstitutional as applied to Whitaker because he was appointed to a principal officer position in violation of the appointments clause of the U.S. Constitution.[8]
Legal challenges to appointment
- The organizations Protect Democracy and the Constitutional Accountability Center filed a lawsuit in the United States District Court for the District of Columbia on behalf of U.S. Senators Richard Blumenthal, Mazie Hirono, and Sheldon Whitehouse, which argued that Whitaker's appointment violated the appointments clause of the U.S. Constitution.[13]
- As part of an ongoing lawsuit against the U.S. Department of Justice (DOJ) related to provisions in the Affordable Care Act, Brian Frosh, the Attorney General of Maryland, asked the court to block Whitaker's appointment. Fifteen other state attorneys general filed friend-of-the-court briefs in support. The Maryland case cited violations of both the appointments clause of the U.S. Constitution and the federal statute that governs the attorney general order of succession.[13]
- In Michaels v. Whitaker, attorneys for a Nevada man convicted of securities fraud argued that Whitaker's appointment should lead the court to resolve the issue. They argued that the appointment violated the statute governing the attorney general order of succession.[13]
- In U.S. v. William Douglas Haning, lawyers for a Texas business executive facing charges for putting substandard ingredients in pet food, objected to Whitaker's involvement in the case, because they argued that Whitaker's appointment violates the appointments clause of the U.S. Constitution.[13]
- Attorneys for U.S. v. Luis Valencia, involving a group of workers charged with stealing oil from energy companies, argued that the case, in their view, "should be dismissed because Whitaker is an unlawful acting attorney general." A federal judge ruled on November 27 that Whitaker's appointment was lawful under the FVRA and appointments clause.[13]
- Plaintiffs in O.A. v. Trump, a case about six asylum seekers challenging the Trump administration ban on asylum claims, argued that Whitaker did not have authority to issue regulations because his appointment, in their view, is invalid under the DOJ succession statute and the appointments clause.[13]
- The plaintiff in Rojo-Ramirez v. Trump, a case involving deportation proceedings in Colorado, challenged the authority of an immigration judge acting under the delegated authority of Whitaker, the acting Attorney General. Rojo-Ramirez argued that Whitaker's appointment violated the appointments clause, the DOJ succession statute, and the FVRA.[13]
- Supporters of Daniel Negusie in the case of Matter of Daniel Girmai Negusie, argued that Whitaker does not have the authority to decide the case because, in their view, he was appointed improperly.[13]
- One of the challenges in Alharbi et al. v. Miller et al., a case about Yemenis approved yet unable to receive U.S. visas because of President Trump's temporary travel ban, challenged to Whitaker's appointment.[13]
See also
External links
Footnotes
- ↑ 4President, "President Donald J. Trump Announces Matthew G. Whitaker, from Iowa, as the United States Ambassador to the North Atlantic Treaty Organization (NATO)," November 20, 2024
- ↑ 2.0 2.1 The Hill, "Sessions out at Justice Department," November 7, 2018
- ↑ 3.0 3.1 KMALand, "Ernst still undecided on Senate bid," May 23, 2013 (dead link)
- ↑ Matt Whitaker, "REPUBLICAN MATT WHITAKER OFFICIALLY ENTERS U.S. SENATE RACE" accessed June 25, 2013
- ↑ 5.0 5.1 Associated Press, "Election Results," accessed June 3, 2014
- ↑ Iowa Republican, "Matt Whitaker to Officially Enter U.S. Senate Race on June 3" accessed May 28, 2013
- ↑ U.S. Department of Justice Office of Legal Counsel, "Memorandum for Emmet T. Flood Counsel to the President, Re: Designating an Acting Attorney General," November 14, 2018
- ↑ 8.0 8.1 8.2 Axios, "Why Trump could face legal challenges over Whitaker," Stef W. Kight, Alayna Treene, November 8, 2018
- ↑ Conservative Review, "Mark Levin takes Laurence Tribe to school on Whitaker appointment," November 9, 2018
- ↑ New York Times, "Trump’s Appointment of the Acting Attorney General Is Unconstitutional," Neal K. Katyal and George T. Conway III, November 8, 2018
- ↑ 11.0 11.1 11.2 Lawfare, "Matthew Whitaker's Appointment as Acting Attorney General: Three Lingering Questions," John E. Bies, November 8, 2018
- ↑ Congressional Research Service, "The Vacancies Act: A Legal Overview," Valerie C. Brannon, July 20, 2018
- ↑ 13.0 13.1 13.2 13.3 13.4 13.5 13.6 13.7 13.8 Vox, "A brief guide to the legal challenges against acting Attorney General Matthew Whitaker," Jen Kirby, December 6, 2018
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