“That has a very significant consequence today,” Katyal and the conservative lawyer George Conway wrote in The New York Times on Thursday, citing Justice Clarence Thomas’s opinion in National Labor Relations Board v. SW General, Inc. “It means that Mr. Trump’s installation of Matthew Whitaker ... is unconstitutional. It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.”
Questions over Whitaker’s legitimacy could work to Mueller’s advantage, according to Jens David Ohlin, a professor at Cornell Law School who specializes in criminal law. Ohlin explained that Mueller could challenge Whitaker’s appointment in federal court on both statutory and constitutional grounds, the latter of which is “most likely to succeed.”
“In order to get either of these issues before a federal court, someone needs standing to bring the claim, which means they’ve been specifically harmed,” Ohlin told me. “If Mueller is fired, which is Whitaker’s ‘nuclear option,’ Mueller certainly has standing to object to Whitaker’s appointment.”
He added that Trump’s decision to appoint a “constitutional nobody” to head the Justice Department “is so far from mainstream practice” that a federal court would likely “scrutinize this carefully and would be skeptical that this is consistent with the [Constitution’s] Appointments Clause,” which outlines how appointments are to be made. Before he went to work at the Justice Department under Sessions, Whitaker served as the U.S. attorney for the Southern District of Iowa from 2004 to 2009, then worked in private practice and appeared as a cable-news pundit throughout 2017.
Marty Lederman, who served as the deputy assistant attorney general in the Justice Department’s Office of Legal Counsel under Obama, is less sure, writing Thursday that the constitutionality of Whitaker’s appointment is “technically an open question.” But he tentatively assumed that “anyone who suffers an ‘injury in fact’ by virtue of something Whitaker does would have … standing to challenge his appointment in court.”
William Yeomans, a former deputy assistant attorney general who spent 26 years at the Justice Department, had similar reservations. “I think the constitutional argument is more complicated than many are suggesting and I am undecided,” he told me. Yeomans noted, however, that if Whitaker’s appointment was unlawful, Mueller “theoretically could refuse to carry out his instructions and could contest, for example, his firing.”
Whether Mueller would actually take such a dramatic step is another question. Paul Rosenzweig, a former senior counsel on the Whitewater investigation in the 1990s, doubted that Mueller would challenge Whitaker’s appointment, “both because it is no slam dunk legally and because he is bound” as a Justice Department employee by the opinions of the Office of Legal Counsel, which concluded in 2003 that “a Senate-confirmed position may be temporarily filled on an acting basis” by any “officer or employee” who “has served in the agency for at least 90 days in the preceding 365 days”—regardless of whether they are confirmed by the Senate. “It is also strategically incautious,” Rosenzweig said.