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Legal challenges to President Donald Trump’s appointment of Matthew Whitaker as acting attorney general are wending their way through the federal courts, with analysts and court watchers divided over how the high-stakes fight will shake out.
Regardless of how the courts rule, though, some believe there’s already agreement across the political spectrum that Trump’s move violates the U.S. Constitution.
"There’s bipartisan consensus that this appointment violates the Appointments Clause of the Constitution, which trumps any statute that the administration’s lawyers have cited," Rep. Nancy Pelosi, D-Calif., said.
Politicians sometimes apply the label "bipartisan consensus" misleadingly to suggest a public policy debate has been favorably resolved, when in fact the battle rages on. That’s what Pelosi did here.
A day after the midterm elections, Trump replaced outgoing Attorney General Jeff Sessions with Whitaker, a Justice Department lawyer. A legal fight erupted over whether Whitaker, as a non-Senate-confirmed officer, assumed the role legally. (See our story for more details on the legal arguments.)
The stakes of the dispute are especially high because the attorney general oversees Special Counsel Robert Mueller’s investigation into Russia’s 2016 election interference and possible collusion with the Trump campaign. Whitaker has publicly criticized the Mueller probe as overly broad.
Attorneys for the Justice Department’s Office of Legal Counsel argue Whitaker’s appointment is on solid ground. But some constitutional experts say Trump unlawfully sidestepped Congress when he elevated Whitaker without Senate confirmation.
The state of Maryland mounted the first legal challenge of Whitaker’s post in federal court, and three Democratic senators have asked the courts to declare Trump’s move in violation of the Appointments Clause.
Pelosi’s phrase, "bipartisan consensus," requires unpacking.
Politicians typically apply this label to create an impression that a critical mass from both parties have jointly settled on a unified view of things, and that no serious debate lingers.
We found only one Republican lawmaker, Sen. Jeff Flake of Arizona, who called the appointment unconstitutional.
"To have somebody who is not Senate-confirmed in a position to oversee an investigation of the president's campaign just does not sit well here," Flake told The Hill, "and I don't think it's consistent with practice and the Constitution really."
Pelosi’s office also cited examples of hand-wringing by other GOP members. A Politico article they sent us quotes Republican lawmakers expressing hope that Trump moves quickly to fill the top Justice Department job with a permanent replacement and lay to rest Whitaker's controversial tenure.
But wanting to squelch a negative story isn't the same thing as calling the current arranagement unconstitutional. Inquiries to Republican congressional leaders asking for their view on the constitutionality of Whitaker's appointment were not returned.
We didn’t need to look hard to find instances of Republican lawmakers defending Trump’s pick, contrary to Pelosi’s claim.
Sen. John Kennedy, R-La., who sits on the Senate Judiciary Committee, said, "Presidents are entitled to surround themselves with advisers of their choice."
"Given the fact that he is the choice of the duly elected president of the United States," Kennedy told CNN, "I think we ought to give the guy a chance."
In follow up correspondence with Pelosi’s office, her staff appeared to confirm that Republican lawmakers by and large do not believe the Constitution has been breached.
"Leader Pelosi is referring to the bipartisan consensus from leading Republican legal minds across the country, a consensus which the radical congressional Republicans have pointedly ignored to rubber stamp President Trump’s unconstitutional actions," said Henry Connelly, a Pelosi spokesman.
Pelosi’s office did cite six conservative legal and political commentators who have either argued against or questioned the constitutionality of Whitaker’s appointment.
For instance, they pointed us to an interview with Michael Mukasey, who served as attorney general in the George W. Bush administration.
"The successor needs to be a confirmed person, in my view," Mukasey said.
But we also found plenty of examples of Republicans who think Whitaker’s appointment is constitutionally sound.
"I accept the OLC’s judgment that the Whitaker appointment is lawful even though he is not Senate confirmed," Alberto Gonzales wrote in a USA Today op-ed that ran after Pelosi’s statement. Some constitutional scholars share this view.
Pelosi said, "There’s bipartisan consensus that (Matthew Whitaker’s) appointment violates the Appointments Clause of the Constitution."
The so-called "bipartisan consensus" Pelosi speaks of rests on a group of conservative thinkers who share the view, widely held by Democrats, that Whitaker’s appointment is unconstitutional.
But Pelosi’s office acknowledged that, in the main, this is not a view with broad support among Republican lawmakers. In fact, some Republican lawmakers and legal leading lights, along with some constitutional scholars, believe Whitaker’s appointment was legal.
The claim that there's "consensus" misleadingly suggests the debate over the constitutionality of Whitaker's appointment has been resolved, when in fact the battle rages on.
We rate this statement False.
Remarks by Rep. Nancy Pelosi, D-Calif., Nov. 16, 2018
PolitiFact, "Is Donald Trump’s pick of Matthew Whitaker for acting attorney general legal?" Nov. 15, 2018
The Hill, "Flake: Whitaker shouldn't oversee Mueller probe," Nov. 9, 2018
Fox News, " 'I Don't Care What Happened in 1866': Judge Nap Blasts DOJ Decision Defending Whitaker Appointment," Nov. 14, 2018
American Conservative, "Whitaker is Unfit to be Attorney General, Acting or Otherwise," Nov. 19, 2018
Neal Katyal and George Conway III in the New York Times, "Trump’s Appointment of the Acting Attorney General Is Unconstitutional," Nov. 8, 2018
John Yoo in The Atlantic, "Whitaker’s Appointment Is Unconstitutional," Nov. 13, 2018
Stephen Vladeck in the New York Times, "Whitaker May Be a Bad Choice, but He’s a Legal One," Nov. 9, 2018
USA Today, "Two Republican former AGs raise questions on Trump's naming Matthew Whitaker to lead Justice Department," Nov. 11, 2018
Alberto Gonzales via USA Today, "What Matthew Whitaker must do to protect the Justice Department," Nov. 28, 2018
Transcript, CNN, Nov. 14, 2018
Email interview with Henry Connelly, spokesman for Rep. Nancy Pelosi, D-Calif., Nov. 28, 2018
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