On Wednesday, President Donald Trump requested Attorney General Jeff Sessions’ resignation and announced Whitaker, who was Sessions’ chief of staff, would take charge of the Department of Justice until a permanent replacement is nominated at a later date.
“A principal officer must be confirmed by the Senate. And that has a very significant consequence today. It means that Mr. Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal,” Conway argued in the op-ed, co-written with Neal Katyal, former acting solicitor general under former President Barack Obama.
They added, “And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.”
The White House and the Justice Department believe Whitaker’s appointment is valid. Whitaker was appointed acting attorney general under the Federal Vacancies Reform Act, which holds that an individual who has served in a federal agency at a senior grade for at least 90 days can be appointed as an acting agency head.
“For the President to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document,” the two lawyers wrote.
Conway and Katyal argue the other reason Whitaker’s appointment is unconstitutional is that the public is entitled to the assurance that he “has the character and ability to evenhandedly enforce the law in a position of such grave responsibility,” which they believe a Senate confirmation process would ensure.
George Conway, who was once considered for a job in the Trump administration, has become an outspoken critic of the President.
Katyal was asked on CNN’s “Anderson Cooper 360” Thursday night about the odd dynamic of Conway, as a Republican and married to one of Trump’s advisers, being a co-author on the op-ed.
“I’ll let him speak for himself. I think Mr. Conway and I both have come to this with really just the simple idea that the Constitution is a bipartisan document, and you have a President who … (is) content to set fire to the Constitution,” Katyal said.