THE PRESIDENT has never accepted that America’s attorney-general is supposed to be the nation’s top law-enforcement officer, rather than his own personal lawyer and protector. Jeff Sessions, whatever his other faults, understood that well. As a result, he was unceremoniously booted out a day after the mid-term elections. To replace him on an acting basis, President Donald Trump picked Matthew Whitaker, who served as chief-of-staff to Mr Sessions. Critics from both parties have questioned the legality of his appointment and his fitness for the job.
At the heart of the first controversy lies an undeniable fact: Mr Whitaker has not been confirmed by the Senate in his current role. The Justice Department (DOJ) argued, in a memo issued on November 14th, that the Federal Vacancies Reform Act of 1998 allows the president to appoint someone not confirmed by the Senate to fill a cabinet post temporarily, which the Act defines as no longer than 210 days. The memo cites precedent dating back to 1792, and notes that both George W. Bush and Barack Obama designated people who had not been confirmed by the Senate to head agencies temporarily.
There are two principal counter-arguments. The first—advanced in the New York Times by Neal Katyal, a deputy solicitor-general under Mr Obama, and George Conway, a conservative lawyer whose wife, Kellyanne, spins for Mr Trump—is that the constitution’s appointments clause dictates that all principal officers, meaning people who report to nobody but the president, must be confirmed by the Senate. Clarence Thomas, perhaps the Supreme Court’s most conservative justice, endorsed that view in an opinion in 2017.
The state of Maryland endorsed a similar view in a lawsuit filed in federal court on November 13th. The state is seeking an injunction barring the DOJ from filing motions under Mr Whitaker’s name in a separate suit the state has filed against the Trump administration. Maryland contends that his appointment violates not just the appointments clause, but also that custom and statute dictate that Rod Rosenstein, the deputy attorney-general, should be named attorney-general. A hearing is expected shortly.
His appointment’s constitutionality aside, Mr Whitaker has unconventional views for an attorney-general. He believes that Marbury v Madison, a case from 1803 that established the Supreme Court’s authority as constitutional arbiter and undergirds two centuries of jurisprudence, was wrongly decided (though, in a nifty bit of reasoning, he also condemned the court for upholding the Affordable Care Act). In 2014, while running for Iowa’s Senate seat, he implied that only Christians should serve as judges.
Mr Whitaker’s résumé is equally unconventional. Before he went to work for the administration, he sat on the board of a company which the government accused of scamming customers, and fined $26m. The company’s founder reportedly enlisted Mr Whitaker, a former federal prosecutor, to dissuade customers who had asked for their money back.
This is a minor fault compared with the prospect of Mr Whitaker overseeing the investigation run by Robert Mueller, the special counsel, into Russian interference in the 2016 election. It is not just that Mr Whitaker has repeatedly derided the investigation; he has denied that Russia interfered at all. Yet even if Mr Whitaker were to defund or undermine Mr Mueller’s team, New York’s attorney-general could continue digging, as could the House, when it reconvenes with a Democratic majority in January (see Lexington).
Mr Sessions’s original appointment set up a trade-off. The outgoing attorney-general held unreconstructed views on criminal justice but took the rule of law seriously. Mr Whitaker seems to offer that dilemma in reverse. He is more of a lackey than Mr Sessions was. And yet he is less likely to stand in the way of the criminal-justice reform that America badly needs, and which Mr Trump has endorsed.