The resignation of Jeff Sessions as Attorney General and the appointment of Matthew Whitaker have been the cause of major uproar in the United States. Democrats argue that Session’s resignation was a method to silence the Mueller investigation and, furthermore, that the appointment of Whitaker was an unconstitutional move by President Trump. Making generalizations without analyzing constitutional fact is harmful to the greater good of the United States. More specifically, we need to analyze the word “temporary,” as it is vital to understanding the constitutional nature of the “temporary” Attorney General.

The Appointments Clause of Article II states that the president has the right to nominate and, with the confirmation of the Senate, appoint all integral federal officers. The Attorney General is an integral feature of the United States federal government, thus falling under this clause. The interesting condition is the “temporal” aspect of Whitaker’s position. In Supreme Court case United States v. Eaton in 1898, the Supreme Court ruled that the temporary appointment of officials was not unconstitutional. Instead, according to an article from the New York Times, the court ruled that “so long as an inferior officer is exercising the du- ties of the principal officer ‘for a limited time, and under special and temporary conditions, [he] is not thereby transformed into the superior and permanent official.’” This provides the constitutional support for Whitaker’s appointment.

The use of the words “limited time” and “special and temporary conditions” as well as who could fulfill this position provide for gray areas in interpretation. These uncertainties were clarified in the Federal Vacancies Reform Act of 1998. This legislation specified the “special conditions,” who could fulfill the role and stated what was considered “limited time.” Resignation is the special condition and the role can be fulfilled by any other currently serving government officer who was confirmed by the Senate or any senior official, who serves in the same department; Whitaker was formally the Chief of Staff to Sessions. The ability of the president to make these decisions, I think, is essential to the power of the executive branch. I argue that the ability to make emergency decisions and not go through the lengthy process of Senate approval is part of the managerial aspect of the presidency.

Whitaker is now in a position to escalate pressure on the Mueller investigation. Whitaker has the constitutional authority to intervene on the grounds of “inappropriate” and “unwarranted” practices by Mueller’s investigations. I think that Whitaker represents everything constitutionally possible in the United States. Whitaker has the ample tools to make decisions that could potentially quash the investigation in its entirety. I believe that this reassignment of Attorney General opens the opportunity for a differentiation in opinion and push toward the investigation of Trump’s allegations of “democrat corruption.”

Contact Tori Pino at [email protected].