"There’s bipartisan consensus that (Matthew Whitaker’s) appointment violates the Appointments Clause of the Constitution."

Nancy Pelosi on Friday, November 16th, 2018 in in a press conference

Nancy Pelosi wrong on legal debate over attorney general Matthew Whitaker

Acting Attorney General Matthew Whitaker speaks to state and local law enforcement officials at the U.S. Attorney's Office for the Southern District of Iowa, Wednesday, Nov. 14, 2018, in Des Moines, Iowa. (AP Photo/Charlie Neibergall)

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.

The Whitaker appointment

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.

‘Bipartisan consensus’?

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.

Our ruling

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.

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"There’s bipartisan consensus that (Matthew Whitaker’s) appointment violates the Appointments Clause of the Constitution."
in a statement
Friday, November 16, 2018