“WE CANNOT TOLERATE SUCH AN EVASION OF THE CONSTITUTION’S VERY EXPLICIT, TEXTUALLY PRECISE DESIGN”
by Sharon Rondeau
(Nov. 13, 2018) — On Friday, Obama-era Acting Solicitor General Neal Katyal told MSNBC host Chris Hayes that President Donald Trump’s interim appointment of Michael Whitaker as Acting Attorney General on November 7 is “unconstitutional” and “illegal.”
Until the appointment, Whitaker served as Sessions’s Chief of Staff for just over a year. Previously, he was a CNN legal commentator. From 2004 to 2009, he served as U.S. Attorney for the Southern District of Iowa, a position which required Senate confirmation.
Katyal’s reasoning is that Article II, Section 2, clause 2 of the U.S. Constitution (the “Appointments Clause) states that the president’s appointment of “officers” in the U.S. government must occur “by and with the advice and consent of the Senate.” During his interview with Hayes, Katyal used the term “principal officers,” which does not appear anywhere in Article II, although it does appear in singular form in clause 1.
Katyal argued that Solicitor General Noel Francisco or Deputy Attorney General Rod Rosenstein, both of whom were confirmed by the Senate after Trump took office, would be appropriate choices for the position of Acting Attorney General, which he said carries “such awesome power.” Further, Katyal said, the appointment will likely be the source of legal challenges which conceivably could be filed by “Every litigant in this country who’s facing the Justice Department.” Katyal indicated that in his view, any sitting U.S. Senator could challenge the appointment as well as a “list of people” he said is “endless.”
Katyal argued that the Founders placed the limitation on presidential appointments because “there might be a corrupt president some day.”
A citizen opinion piece in the Chicago Sun-Times invokes the Federal Vacancies Reform Act (FVRA) of 1998 in its contention that Whitaker’s appointment has caused a “constitutional crisis” by virtue of the fact that Whitaker was not a “first assistant” in the Justice Department when Sessions tendered his resignation last Wednesday.
Fox News Judicial Analyst Judge Andrew Napolitano opined Tuesday morning that “Under the law, the person running the Department of Justice must have been approved by the United States Senate with some previous position, even on an interim post. Who is that person? Rod Rosenstein…”
Napolitano appeared to be referring to the FVRA rather than the Appointments Clause of the Constitution.
Attorney George T. Conway III, husband of White House Counselor Kellyanne Conway, agreed with Katyal in an editorial published in The New York Times on November 8, citing the potential conflict they believe Whitaker has in his oversight of the “Mueller investigation,” which is seeking to confirm whether or not anyone in the Trump campaign “colluded” with Russian operatives.
The Justice Department said Monday that Whitaker “will consult with ethics officials about any matters that could require him to recuse himself” in response to calls for him to recuse himself from overseeing Mueller’s investigation.
Another view published by The Times criticizes Trump’s choice for Acting AG, citing Whitaker’s past criticism as a media commentator of the Mueller probe, but nevertheless maintained it to be constitutional as long as it does not exceed 210 days, as stated in the FVRA.
In his interview with Hayes, Katyal characterized the U.S. Constitution as a “profoundly bipartisan document.” “Some people are seeing the Constitution as just a political document, a document for the mighty, and that is maybe the most destructive thing about this presidency,” he said. “He [Trump] treats the Constitution like a tax code, something he can loophole this way or that, and I fully expect that Whitaker’s appointment will be challenged and ultimately ruled unconstitutional.”
On Tuesday morning, the State of Maryland sued to enjoin Whitaker from exercising the duties of Acting AG as the result of an existing suit which named Sessions as a defendant. Additional lawsuits may be coming.
A number of attorneys who worked in both Democratic and Republican administrations agree that Trump’s appointment of Whitaker, even on an interim basis, is “unconstitutional.”
Article II, Section 2, clause 3 states, “The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” When Whitaker was appointed, the Senate was in recess.
In 2013, the U.S. District Court of Appeals for the District of Columbia “ruled that President Barack Obama violated the Constitution by appointing three members to a federal labor panel last January while sidestepping the Senate.” On appeal, the U.S. Supreme Court upheld the lower court’s decision. “That ruling invalidated hundreds of NLRB rulings and forced the agency to reissue those decisions,” PBS reported on March 21, 2017.
The same article reported that the Supreme Court ruled Obama’s appointment of Rafe Solomon to the post of NLRB acting general counsel unconstitutional, a decision Conway and Katyal utilized to support their argument about Whitaker without mentioning Obama.
Conway and Katyal wrote, in part:
Mr. Whitaker has not been named to some junior post one or two levels below the Justice Department’s top job. He has now been vested with the law enforcement authority of the entire United States government, including the power to supervise Senate-confirmed officials like the deputy attorney general, the solicitor general and all United States attorneys.
We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design. Senate confirmation exists for a simple, and good, reason. Constitutionally, Matthew Whitaker is a nobody. His job as Mr. Sessions’s chief of staff did not require Senate confirmation. (Yes, he was confirmed as a federal prosecutor in Iowa, in 2004, but Mr. Trump can’t cut and paste that old, lapsed confirmation to today.) For the president to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document.
When the subject of questions over Obama’s constitutional eligibility to serve were raised on the morning show “Fox & Friends,” Napolitano said the issue was irrelevant because Obama had only a short time remaining in his second term.
Katyal, who was both deputy solicitor general and “acting” solicitor general under Obama, in 2016 wrote in the Harvard Law Review that Sen. Ted Cruz qualifies for the presidency as a “natural born Citizen” under Article II, Section 1, clause 5 of the Constitution. Cruz was born in Canada to a mother said to be a U.S. citizen at the time and a father born with Cuban citizenship. Rafael iBenvenido Cruz reportedly became a Canadian citizen during the time he, his wife and young son lived in Calgary, Alberta in the early 1970s. In May 2016, a source for The Post & Email’s informed us that it was likely Eleanor Darragh Cruz also became a Canadian citizen before leaving that country for the U.S. in 1974.
In their essay, published just days before Cruz declared his presidential candidacy in March 2015, Katyal and former George W. Bush Solicitor General Paul Clement argued that a “citizen at birth” is the same as a “natural born Citizen.” “All the sources routinely used to interpret the Constitution confirm that the phrase ‘natural born Citizen’ has a specific meaning: namely, someone who was a U.S. citizen at birth with no need to go through a naturalization proceeding at some later time. And Congress has made equally clear from the time of the framing of the Constitution to the current day that, subject to certain residency requirements on the parents, someone born to a U.S. citizen parent generally becomes a U.S. citizen without regard to whether the birth takes place in Canada, the Canal Zone, or the continental United States,” they contended.
Similarly, in 2008 former New Mexico Gov. Bill Richardson termed Obama “an immigrant” while conducting a Spanish-language interview. Beginning in 2007 after Obama announced himself a presidential candidate, mainstream articles reporting him as having been born in Kenya or Indonesia conflicted with Obama’s claim to a birth in Honolulu, HI on August 4, 1961.
Although claiming a birth in Hawaii, no hospital there has ever confirmed it; adding to the eligibility question is Obama’s alleged British-, and later Kenyan-citizen, father. Atty. Herb Titus, a former constitutional law professor, writer and Bible scholar, has opined that Obama cannot be a “natural born Citizen” based solely on his father’s non-U.S. citizenship.
Although not precisely defined in modern history by the U.S. Supreme Court, most Americans understand “natural born Citizen” to mean that a presidential candidate must have been born in the United States. Many legal scholars say that the candidate’s parents’ citizenship at the time of his birth is equally important in order to eliminate any chance of foreign influence.
That interpretation is based on a letter written by future first U.S. Supreme Court Chief Justice John Jay to then-Constitutional Convention president George Washington in 1787. “Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government, and to declare expressly that the Command in chief of the american army shall not be given to, nor devolved on, any but a natural born Citizen,” Jay wrote.
The term was reportedly included in Article II with little to no discussion.
According to writer JB Williams in late 2013, Ted Cruz acknowledged privately that neither he nor Obama is constitutionally eligible for the presidency. However, in an interview with CNN’s Dana Bash during the 2016 primary season, Cruz insisted that he is eligible because one of his parents was a U.S. citizen when he was born, regardless of his place of birth.
Neither Katyal, Napolitano, nor any legal media analyst to this writer’s knowledge has ever commented on the findings of a 5+-year criminal investigation which found Obama’s purported “long-form” birth certificate posted at whitehouse.gov in 2011 a “computer-generated forgery.” Also found to be questionable was a “short-form” birth certificate image published in 2008 from an unknown source and later posted on the White House website.
Investigators also found a purported Selective Service registration form to be a “hard-copy forgery” as declared by lead investigator Mike Zullo at an initial press conference on March 1, 2012.
A third and final press conference in December 2016 revealed that two forensic experts, without knowledge of the other’s work, concurred with Zullo that the long-form birth certificate image cannot represent an authentic, paper document.
In an August 2018 radio interview, Zullo said for the first time that two intelligence agents confirmed to him that “it has been an open secret in the intelligence community and DC that Obama could never satisfy the constitutional requirement of being born on American soil.”
In 2010, however, contrasting with his article in favor of Cruz’s eligibility, Katyal argued for the government in a case brought by a Mexican-born man with a U.S.-citizen father after he was found to be a “deported alien found in the United States.” The plaintiff argued that he acquired “derivative (U.S.) citizenship” from his father and that his removal from the country resulted from a violation of the Fourteenth Amendment’s Equal Protection Clause.
At the conclusion of the December 2016 birth certificate presser, then-Maricopa County Sheriff Joseph Arpaio, who had commissioned the probe, said that the entirety of the evidence collected over Zullo’s 5+ years on the case would be turned over to “federal authorities.” According to The New York Times, Trump, who made the first public demand of the Obama White House for the release of the “long-form” image, is still concerned with the issue.
Sharon Rondeau has operated The Post & Email since April 2010, focusing on the Obama birth certificate investigation and other government corruption news. She has reported prolifically on constitutional violations within Tennessee’s prison and judicial systems.