The husband of White House counselor Kellyanne Conway is arguing that the President’s decision to instate Matthew Whitaker as acting attorney general is “unconstitutional” and “illegal.”
On Wednesday, President Donald Trump requested Attorney General Jeff Sessions’ resignation and announced Whitaker, who was Sessions’ chief of staff, would take charge of the Department of Justice until a permanent replacement is nominated at a later date.
George Conway, Kellyanne Conway’s husband, slammed the move in an op-ed published Thursday in the New York Times.
“A principal officer must be confirmed by the Senate. And that has a very significant consequence today. It means that Mr. Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal,” Conway argued in the op-ed, co-written with Neal Katyal, former acting solicitor general under former President Barack Obama.
They added, “And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.”
The White House and the Justice Department believe Whitaker’s appointment is valid. Whitaker was appointed acting attorney general under the Federal Vacancies Reform Act, which holds that an individual who has served in a federal agency at a senior grade for at least 90 days can be appointed as an acting agency head.
Conway and Katyal argued that the appointment of Whitaker to the top job at the DOJ “defies one of the explicit checks and balances set out in the Constitution.” They pointed to the Constitution’s Appointments Clause in Article II, Section 2, Clause 2 to argue that Whitaker, now as a principal officer, should have undergone a Senate confirmation process to be placed in the role of acting attorney general, and that otherwise it’s “unconstitutional.”
“For the President to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document,” the two lawyers wrote.
Conway and Katyal argue the other reason Whitaker’s appointment is unconstitutional is that the public is entitled to the assurance that he “has the character and ability to evenhandedly enforce the law in a position of such grave responsibility,” which they believe a Senate confirmation process would ensure.
Trump dismissed Conway’s column as he spoke to the media Friday ahead of his overseas trip.
“You mean Mr. Kellyanne Conway?” Trump said when asked about Conway’s interpretation of Whitaker’s appointment. “Why don’t you ask Kellyanne that question, alright? She might know him better than me. I really don’t know the guy.”
George Conway, who was once considered for a job in the Trump administration, has become an outspoken critic of the President.
Katyal was asked on CNN’s “Anderson Cooper 360” Thursday night about the odd dynamic of Conway, as a Republican and married to one of Trump’s advisers, being a co-author on the op-ed.
“I’ll let him speak for himself. I think Mr. Conway and I both have come to this with really just the simple idea that the Constitution is a bipartisan document, and you have a President who … (is) content to set fire to the Constitution,” Katyal said.
CNN’s Betsy Klein contributed to this report.