Federal Law Enforcement

A New Lawsuit Against Whitaker’s Appointment Is a Brushback Pitch

By Scott R. Anderson, Mikhaila Fogel, Benjamin Wittes
Wednesday, November 21, 2018, 9:18 AM

Three senators—Richard Blumenthal (D-Conn.), Mazie Hirono (D-Hawaii) and Sheldon Whitehouse (D-R.I.)—have sued President Trump and Acting Attorney General Matthew Whitaker over Trump’s installation of Whitaker at the Justice Department’s helm. The senators, represented by Protect Democracy and the Constitutional Accountability Center, are seeking a declaration confirming that the president has deprived them of their constitutional right to provide advice and consent on the appointment of principal officers and an injunction barring Whitaker from performing the duties of the attorney general.

(Full disclosure: Protect Democracy represents Benjamin Wittes, Scott R. Anderson and other figures associated with Lawfare in a number of legal matters under the Freedom of Information Act and the Foreign Intelligence Surveillance Act and in matters involving the release of grand jury material connected to the Watergate "road map.")

Their lawsuit faces significant hurdles, which we outline below. The most significant—standing—will fade with time, meaning that the legal threat to Whitaker’s service will grow more acute the longer he remains in office. For this reason, the lawsuit should be understood not merely on its own terms but also as the thin edge of a potentially powerful wedge of legal challenges to the man whom the complaint calls the “purported Acting Attorney General of the United States.” As such, it should concentrate minds—both inside and outside the administration—on what is at stake if the president fails to swiftly nominate a respectable attorney general capable of Senate confirmation.

This suit, in short, has a deeply important role to play even if, in its current form, it doesn’t go very far in court. Making the government face the prospect of defending the Whitaker appointment constitutes an important brushback pitch—a move that future plaintiffs are likely to emulate, possibly to more consequential effect.

The plaintiffs in Blumenthal v. Whitaker allege that Trump and Whitaker have violated the Appointments Clause by, respectively, installing and serving as a “principal officer” without the advice and consent of the Senate. According to the complaint, the defendants have denied the senators their constitutional right to vote on Whitaker’s appointment. While the senators acknowledge the recently released Office of Legal Counsel (OLC) opinion defending Whitaker’s appointment under the Federal Vacancies Reform Act (FVRA), they contend that, since the Senate has not given its advice and consent to Whitaker in any role, let alone as head of the Justice Department, he and the president stand in violation of the Appointments Clause. To drive home this point, the plaintiffs cite Justice Clarence Thomas’s concurring opinion in National Labor Relations Board v. SW General, Inc. in which he states that “[a]ppointing principal officers under the FVRA raises grave constitutional concerns because the Appointments Clause forbids the President to appoint principal officers without the advice and consent of the Senate.”

The senators present what exactly the president’s decision to appoint Whitaker under the FVRA has cost them in stark terms:

[B]efore deciding whether to give their consent to Mr. Whitaker serving in such a role, Plaintiffs and other members of the Senate would have the opportunity to consider his espoused legal views, his affiliation with a company that is under criminal investigation for defrauding consumers, and his public comments criticizing and proposing to curtail ongoing [Justice Department] investigations that implicate the President. Mr. Whitaker would not be able to serve as a principal Officer—and exercise the functions and duties of such an office—until he made the disclosures required of a nominee, answered Senators’ questions, and convinced a majority of the Senate’s members to give their consent to his confirmation.

They go on to identify several topics on which they would have questioned Whitaker and subjects on which his answers may reasonably have led members of the Senate to oppose his appointment, including: Whitaker’s public, disparaging comments about the Mueller investigation, especially considering that “a number of Senators have expressed their belief that the Mueller investigation should be allowed to continue without interference”; Whitaker’s stated disagreement with Marbury v. Madison and his statements supporting state nullification of federal law; the fact that Whitaker served on the board of a company that allegedly defrauded investors and is under FBI investigation; and reports that Whitaker has served as the White House’s “eyes and ears” inside the Justice Department.

Longtime Lawfare readers who have seen members of Congress go to court to restrain executive action in the past may have a gut reaction to a complaint filed by three individual senators, even if they are members of the Senate Judiciary Committee: Why do these members have standing to sue? Expect the government to pose exactly this question, and fast, in response to the litigation. Indeed, standing is likely to be the first and most significant hurdle the plaintiffs will have to overcome to reach the merits—and the bar for individual legislators such as the plaintiffs is extremely high.

The U.S. Court of Appeals for the D.C. Circuit, whose precedent will govern Blumenthal v. Whitaker, has recognized that both Congress as a whole and individual chambers within Congress can authorize individual legislators to pursue litigation on their behalf in order to vindicate institutional interests. For example, in United States v. AT&T the D.C. Circuit ruled that a resolution by the House of Representatives authorizing litigation on its behalf was sufficient to give an individual member of Congress standing to sue on the House’s behalf in a regulatory matter. In other cases, congressional committees seeking to enforce congressional subpoenas have also fared reasonably well so long as they have received authorization from the House. But the plaintiffs in the current case are not Congress, or a chamber of Congress, or even a full committee—nor have they been authorized to act on behalf of any such entity. Instead, they are individual legislators, for whom standing can be more difficult to achieve.

The leading case on individual-legislator standing is the Supreme Court’s 1997 decision in Raines v. Byrd, which rejected an argument by six members of Congress that they had standing to challenge the constitutionality of the Line Item Veto Act of 1996 on the grounds that it would dilute their legislative authority. The justices held that individual legislators have standing to challenge such actions only in two scenarios: where they have suffered a personal injury, such as the denial of a benefit or incident of holding public office that accrues to them personally; or where they have suffered an institutional injury that is concrete and particularized to the plaintiffs, not shared widely with other members of Congress. As an example of the latter, the Supreme Court cited its holding in Coleman v. Miller, noting that “legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.” The majority opinion also highlighted other factors that may weigh against granting standing to legislators, including the absence of historical precedent, lack of authorization by any individual chamber of Congress and the availability of other remedies through the legislative process. 

The D.C. Circuit has repeatedly wrestled with Raines, particularly as it relates to Coleman-type vote nullification. The resulting case law is, in some ways, even more restrictive, as it emphasizes the availability of alternate legislative remedies as a factor weighing strongly against standing. In Chenoweth v. Clinton, the appeals court—reining in some of its pre-Raines precedents—held that legislators lacked standing to challenge a presidential decision to establish a program by executive order instead of legislation. The court found the plaintiffs’ argument that doing so deprived them of their opportunity to vote on relevant legislation was neither concrete nor specific enough to warrant standing under Raines, particularly as the legislators could still achieve their objective by enacting legislation to block the program.

Similarly, in Campbell v. Clinton, the court rejected a constitutional challenge by 31 members of Congress to U.S. participation in the NATO bombing campaign in the former Yugoslavia. The plaintiffs argued that the Clinton administration’s decision not to seek congressional authorization as required by the Declare War Clause deprived the plaintiffs of the opportunity to vote in opposition. The D.C. Circuit once again ruled that the plaintiffs lacked standing on grounds that they “continued . . . to enjoy ample legislative power to have stopped prosecution of the ‘war’” through conventional legislation, by cutting off appropriations or even impeachment.

How are the Blumenthal v. Whitaker plaintiffs’ claims likely to fare under these precedents? Not well. The plaintiffs’ argument that Whitaker’s appointment deprives them of their opportunity to question and vote on attorney general nominees pursuant to the Appointments Clause resembles both the legislative argument at issue in Chenoweth and the Declare War Clause rejected in Campbell. And here, Congress does appear to have at least one statutory remedy still available to it: revoking the FVRA pursuant to which Whitaker was appointed.

All hope may not be lost, however. As support, the Whitaker plaintiffs cite a recent decision, Blumenthal v. Trump, in which the U.S. District Court for the District of Columbia held that approximately 201 minority members of Congress have standing to sue the president for violating the Foreign Emoluments Clause by failing to seek Congress’s consent before accepting foreign emoluments. The district court squared that with relevant precedent by reading Raines as accepting such basis for standing and noting that there is unlikely to be an adequate alternative remedy that plaintiffs can pursue, legislative or otherwise. It is at least possible that the district court in Blumenthal v. Whitaker will take a similarly innovative approach, carving out new space for legislator standing.

Of course, whether the holding in Blumenthal v. Trump will have legs is an open question. The government has already requested certification for an interlocutory appeal, though it is still awaiting a decision. And even if the district court’s holding remains in place, it is not binding precedent and does not necessarily control the outcome in Blumenthal v. Whitaker. What’s more, the government will surely argue that the situations are not quite parallel, not least because of the ready legislative remedy available in regard to Whitaker’s appointment.

Given the above, it is reasonable to anticipate that the senators have a serious standing fight on their hands—and that it is one they may not win.

But here’s the thing: It may not matter all that much if they prevail. Someone, after all, will have standing to challenge Whitaker’s presence at some point. The attorney general, perhaps more than any other Cabinet member, makes hundreds of decisions that directly impact the lives of Americans. And the longer Whitaker remains in office, the more parties with standing will emerge, particularly as he takes actions that cause direct injury to private individuals. Indeed, the legitimacy of Whitaker’s appointment has already been raised by plaintiffs as varied as the state of Maryland and an aspiring gun owner challenging a law limiting his ability to own firearms because of previous non-violent convictions. (See Lawfare’s resource page for litigation documents involving Whitaker’s appointment.) By the time the standing issue in this case is resolved, in whatever direction, it seems likely that a party with clear standing will have emerged. So while standing might be a long-term problem if the world were static, in the real world it seems likely to evaporate with time.

This raises the second major issue: the merits. There has been a rich debate over whether, in fact, the Whitaker appointment is legally defective. We won’t rehash the debate here save to refer readers to articles by John Bies,  George Conway and Neal Katyal, and John Yoo arguing for the illegality of the appointment, and articles by Steve Vladeck and Will Baude on the side of its legality. It is fair to say that the issue is genuinely contested by thoughtful people. And while it is not quite an issue of first impression in the Supreme Court, this is an issue that does not have a whole lot of law and on which relevant practice is not recent. So one could imagine the court going either way.

Based on the OLC memo, the government can be expected to make several points in support of the validity of Whitaker’s appointment on the merits. First, the government is likely to note that the appointment is in accordance with the plain terms of the FVRA, as Whitaker had served at the Justice Department in a qualifying position for more than a year before his appointment. What’s more, it can be expected to argue, the Justice Department succession statute does not supercede the FVRA, leaving the latter available as an option to the president. Third, as most of the OLC memo is dedicated to describing, the government will contend that historical precedent supports the conclusion that temporarily appointing non-Senate-confirmed officials to hold principal officer positions is consistent with the Appointments Clause. Specifically, in its 1898 decision in United States v. Eaton, the Supreme Court held that an inferior officer can perform the duties of a principal officer “for a limited time” without “transform[ing]” the office into one that requires Senate confirmation. The OLC opinion similarly identifies more than 160 times before 1860 that non-confirmed officials temporarily held principal positions, including secretary of state, secretary of the Treasury and secretary of war—as well as an instance in 1866 in which a non-Senate-confirmed official acted as attorney general.

These points are not frivolous. But they are by no means decisive either. So if the administration does any kind of cool-headed assessment of the litigation risk associated with leaving Whitaker in place, it will have to assess that there is a significant possibility of eventual legal defeat, at any level of the federal judiciary. But the risk is actually worse than that, because of a point that David Kris made the other day: There is some small but non-zero chance not merely that Whitaker’s appointment is legally defective but also that the courts will impose what Kris calls a “really drastic remedy” by invalidating a broad swath of Justice Department activities. As he wrote,

[E]ven if there is only a 1 percent (or lesser) chance of a really drastic remedy, then it is highly irresponsible to have appointed Whitaker. The FVRA and [Justice Department succession statute] together set a default rule that the deputy attorney general becomes acting attorney general, and the FVRA grants the president a fallback option to appoint another Senate-confirmed individual to fill the role. There is no need, therefore, to resort to the third option and appoint Whitaker, in an action that some legal scholars—including John Yoo, not known for supporting limits on presidential power—believe is unconstitutional. It is bad enough that Whitaker has expressed extreme views that make him a poor choice for the job; it is much worse that the appointment was plainly motivated by the president’s desire to limit an ongoing investigation in which he himself is a subject; and it is very revealing of the president’s selfishness (and/or carelessness) that, in his zeal to achieve that result, he might be putting in play a much broader set of the Justice Department’s significant activities.

Having a suit that squarely puts all of these questions on the table could force relevant officials—and even the president himself—to think more seriously about the dangers of playing with these particular matches in a room saturated with lighter fluid.

The bottom line for the government is that there is at least some chance that the plaintiffs in Blumenthal v. Whitaker will be found to have standing, and a certainty that some plaintiffs soon will be able to raise these issues. The merits of their positions are substantial and may well constitute a winning argument. Even for a president not prone to thinking rationally, this lawsuit—particularly as it matures—will generate pressure to name an attorney general whom nobody can describe as “purported.” In this sense, it may be an important step toward a solution, even if it does not prove to be the vehicle that ultimately carries the plaintiffs there.