President Trump’s appointment of Matthew Whitaker as acting attorney general is not constitutional, and therefore anything Whitaker does while holding the position is illegal.
Why is this so important? Allowing one person too much control is like giving the fox a key to the hen house. Trump could not be challenged if he himself controlled every appointment without the consent of Congress or any oversight, which would give him a dictatorship. Fortunately, the Appointments Clause in the US Constitution forbids this action.
As Supreme Court Justice Clarence Thomas recently argued in another case involving an illegal appointment, he wrote that the Constitution “recognized the serious risk for abuse and corruption posed by permitting one person to fill every office in the government.” Of course the president, it seems, would like to have control over every appointment, but the constitution will not allow it. If a complaint is filed, and surely it will be, an injunction will be put in place and the Supreme Court will uphold the injunction and the appointment will be struck down.
The only way, President Trump will be able to fill the vacancy is either by elevating current individuals in the Justice Department, such as Rod Rosenstein or someone just under him, who have been through the Senate confirmation process. or by nominating someone who must go through confirmation process. His party controls the majority in the Senate, so they may in fact approve the appointment, but until then anything Whitaker does will be deemed illegal.
The framers of the Constitution tried to make sure too much power would not end up in one branch of the government, or in this case, in one person’s hands. Justice Thomas wrote:
“they (the founding fathers) knew that liberty could be preserved only by ensuring that the powers of government would never be consolidated in one body.”
Much spin will be placed on this issue in the coming days, but no matter what anyone says, the facts are the facts and that cannot be changed with a lie.