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The Whitaker Solution

The Supreme Court has a chance to rebuke President Trump and reaffirm judicial independence. Will the justices take it?

Mark Wilson/Getty Images

Chief Justice John Roberts took an extraordinary step last week by publicly reaffirming that the federal judiciary is nonpartisan and independent. Now, an unusual filing by one of the nation’s most prominent appellate lawyers has given him and his colleagues a chance to prove it.

Tom Goldstein, a prominent appellate lawyer and the co-founder of SCOTUSblog, is currently representing Barry Michaels in a Second Amendment case challenging the constitutionality of the federal government’s ban on firearm ownership for convicted felons. The case was previously known as Michaels v. Sessions because the lawsuit was directed at former Attorney General Jeff Sessions in his official capacity. But when Sessions resigned on November 9—widely believed to have been fired by President Trump, who was dissatisfied with his recusal on the Mueller investigation—and was replaced with his chief of staff Matthew Whitaker, the Justice Department naturally put Whitaker’s name on the case instead.

Goldstein, in an unusual move, then filed a motion earlier this month urging the Supreme Court to reject President Trump’s appointment of Matthew Whitaker as acting attorney general, based on the fact that Whitaker was never confirmed by the Senate. The motion asked the court instead to substitute Rod Rosenstein, the deputy attorney general and second-in-command at the Justice Department. The Supreme Court hasn’t yet said whether it will taken the case.

Similar legal challenges to Whitaker’s legitimacy cropped up around the country after Trump placed Whitaker in charge of the Justice Department. What sets Goldstein’s challenge apart is its tactical cleverness: It places the dispute directly before the justices instead of navigating the lower courts first. More importantly, however, it gives the justices a rare opportunity to push back in a nonpartisan fashion against the executive branch, if that is indeed something they are interested in.

At issue is whether Whitaker can lawfully exercise the attorney general’s vast powers simply because the president says he can. The Constitution’s Appointments Clause requires top executive-branch officials like the attorney general to receive Senate approval before taking their post. Not only was Whitaker not confirmed by the Senate to serve as attorney general, he wasn’t serving in any Senate-confirmed post at the Justice Department before taking it over. Instead, he rose to the position after serving as Sessions’s chief of staff. (Whitaker previously served as the U.S. attorney in Iowa, but his Senate-confirmed status for that job ended when he left the post in 2009.)

Installing Whitaker now, Goldstein argues, is therefore illegal. “The Attorney General Succession Act unambiguously deems Deputy Attorney General Rod Rosenstein the Acting Attorney General,” the motion reads. “There is no merit to the Government’s contrary argument that Congress empowered the President to choose whether to permit automatic succession under that statute or instead to choose a successor under the Vacancies Act. Indeed, given the absence of any exigency, the Appointments Clause only permits a Senate-confirmed official to serve as Acting Attorney General.”

The Justice Department quibbled with Goldstein’s reading of the relevant statutes and his interpretation of the Appointments Clause in their response brief filed on Monday: After all, vacancy appointments do happen. But the government’s lawyers, perhaps sensing weakness, also offered the justices a way to sidestep the question: Whitaker isn’t being sued in his personal capacity, so it doesn’t matter whether his name is on the case. “The ‘real party in interest’ is thus the Department of Justice or the United States itself, not the individual personally performing the duties of the Attorney General at a particular time,” they wrote.

Goldstein pulled no punches. “This is a constitutional crisis,” he declared in a reply brief Wednesday. “It is a constitutional crisis even if we are distracted from and dulled to it.” Whitaker’s appointment should be seen as an end-run around constitutional safeguards for Trump’s personal benefit, he argued. “For the first time in the Nation’s history, the President has forced out a principal officer and replaced him with a non-confirmed appointee, indeed refusing to submit him or anyone else for confirmation.”

In unusually direct language, Goldstein went even further and challenged the justices to stand up to Trump: “This is a power grab. It is a power grab designed to protect the President personally by evading the authority and responsibility of the Senate and this Court under the Constitution. Yes, the Court can blink at that reality, decline to act, and move on. But history will regret that it did.”

Figures from the American left widely criticized Whitaker’s appointment, citing his criticism of the Russia investigation and reports that he’s acted as a “spy” of sorts for the White House inside DOJ. But the consensus against Whitaker also crosses ideological lines. Alberto Gonzales, who served as George W. Bush’s second attorney general, said the decision to install Whitaker over a Senate-confirmed official “confounds me.” Michael Mukasey, Bush’s third attorney general, told reporters that he thought the move was a mistake. “Even Richard Nixon didn’t put in somebody as acting attorney general who had not been confirmed,” he remarked to USA Today.

The most forceful critique came from Neal Katyal, a former acting solicitor general in the Obama administration, and George Conway, a prominent conservative lawyer and the husband of White House adviser Kellyanne Conway. “Senate confirmation exists for a simple, and good, reason,” the two men argued in a New York Times op-ed. “Constitutionally, Matthew Whitaker is a nobody.”

The question is how the justices feel about this. Imagine, if you will, that you are a sitting justice on the Supreme Court of the United States. You’re passionate about your work. You care about the institution that you and eight of your colleagues are charged with maintaining. You cherish the American rule of law and the federal judiciary’s role in protecting it. And you’re disturbed by what you’ve seen over the last few years.

Judicial confirmations are more contentious and vitriolic than at any other point in the nation’s history. They’ve become a “highly partisan show,” in the words of Justice Ruth Bader Ginsburg, and the “terribly polarized political process” undermines the court’s legitimacy, in the words of Justice Elena Kagan. The corrosive battle to seat Justice Brett Kavanaugh this fall did lasting damage to the court’s image as a neutral, independent arbiter of the law. His disturbing tirade against the Clintons and the left, coupled with his suggestions that “what comes around, goes around,” still rings in many Americans’ ears.

It’s not just the legislative branch that’s undermining the courts, either. President Donald Trump so far has largely treated the rule of law as a sword to be wielded against his enemies. (“Lock her up!” the campaign chant went.) He regularly denounces federal judges who issue unremarkable rulings against him, sometimes in racist terms. His Justice Department is abusing procedural mechanisms to skip past the appellate courts and bring issues to your docket directly, apparently hoping you’ll give his legally dubious acts the rubber-stamp treatment he desires.

What’s a troubled Supreme Court justice like you to do? The easiest move would be to keep doing your job and ignore the fleeting political fights that swirl around the courts. Presidents have been frustrated by the judiciary in the past. They’ve even offered pointed criticism of judges who’ve ruled against them. Their critiques are ultimately fleeting. A president faces regular elections and term limits. You have lifetime tenure.

You might still feel a gnawing sense of unease that this time is different, though. Trump is arguably more authoritarian than any of his predecessors, even Nixon at the height of Watergate. During that constitutional crisis, the justices unanimously intervened to demand the president turn over the White House tapes and other subpoenaed documents to the courts. Foremost among their fears was that Nixon would exploit any dissenting opinions to defy a ruling to turn over the White House tapes.

There are good reasons for the court to weigh in now. The acting attorney general is regularly sued in his official capacity and could face potential legal challenges in each of those cases. By tackling the matter on their own, the justices could prevent any confusion among the lower courts. While the Supreme Court typically waits for those divisions to emerge before weighing in, there’s nothing procedurally improper about Goldstein’s challenge, so the court has an opportunity to prevent chaos before it can occur.

In practical terms, a ruling against Whitaker would be a slap on the wrist. The Justice Department would continue to function under Deputy Attorney General Rod Rosenstein or any other Senate-confirmed official currently working there. Trump would be also be free to nominate an attorney general for the Senate to consider. This turn of events might hinder Trump’s efforts to undermine the Russia investigation as it draws closer to his inner circle, of course. But that’s not exactly a good reason for the court to step aside.

The decision’s real impact would be political in nature, which isn’t necessarily a bad thing. It would signal that the court is willing to impose meaningful checks on this president—a duty that it has so far failed to carry out—as well as others. It would strengthen the Justice Department’s traditional independence from the White House—a norm, not a constitutional requirement, but a valuable norm nonetheless. It would help restore some of the high court’s flagging prestige, setting it apart in an age of institutional disenchantment. And it would teach a president who is used to a certain level of impunity from the political system that there are consequences to his actions.

In the Federalist Papers, Alexander Hamilton wrote that the federal judiciary has “neither force nor will, but merely judgment.” Indeed, the Supreme Court cannot compel Trump to believe in the rule of law. Nor can it rewrite the laws to protect Special Counsel Robert Mueller from undue interference. But it can emphatically and clearly say what the law is. In this case, that may be enough.