Clinton Brook & Peed Files Appellate Brief Challenging Appointment of Acting Attorney General Matthew Whitaker

Earlier this month we filed an amicus brief, in the U.S. Court of Appeals for the Third Circuit, supporting a challenge to President Trump’s authority to appoint Matthew Whitaker as Acting Attorney General. We submitted the brief on behalf of Morton Rosenberg, who became one of the nation’s leading authorities on the Federal Vacancies Reform Act while serving at the Congressional Research Service when the statute was drafted and enacted. 

The defendant in United States v. Castillo challenges his sentence on the ground that after firing Attorney General Jeff Sessions, President Trump lacked the authority to appoint Whitaker as his acting replacement. Supporting the defendant, our brief explains that the proper Acting Attorney General is the current Deputy AG, Rod Rosenstein; this result is dictated by the Attorney General Succession Act. 

As the brief details, the government’s contrary argument—that President Trump may evade that Attorney General Succession Act, and 150 years of history and practice, because of more general language in the Federal Vacancies Reform Act—would flout the Vacancies Reform Act’s text, legislative history, and purpose. The Vacancies Reform Act sought to constrain the President’s ability to appoint high-ranking Justice Department officials over congressional objection; Congress did not, at the same time, allow the President to place the Justice Department in the hands of “anyone from a pool of thousands—even someone whom the Senate has never confirmed to any position.” More generally, observes the brief, Congress would not have “silently disregarded a 150-year practice in temporary Attorney General appointments—a practice that has long protected the Department and the nation against incompetence, cronyism, and presidential interference.”

The brief was prepared by our partner Greg Lipper, along with Carl Cecere of Cecere PC in Dallas, TX.