George Conway, husband of White House counselor Kellyanne ConwayKellyanne Elizabeth ConwayCNN’s Camerota battles with Conway over whether midterms were a loss for Trump Kellyanne Conway on Dem investigations of Trump: ‘They can try’ Fox News hosts join Trump on stage at Missouri campaign rally MORE, has co-authored an op-ed calling President TrumpDonald John TrumpDemonstrators gather outside White House to protest Sessions’ ouster Acosta: ‘I didn’t put my hands on’ White House intern White House doubles down on decision to pull press pass from CNN’s Acosta MORE’s move to replace ex-Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsDemonstrators gather outside White House to protest Sessions’ ouster Trump’s acting AG was involved in company accused of being a ‘scam’ by FTC 5 things to know about new acting Attorney General Matthew Whitaker MORE “unconstitutional.”
The piece, published Thursday in the New York Times, asserts that Trump’s decision to appoint Matthew Whitaker as acting attorney general is in violation of the Appointments Clause of the Constitution, which stipulates that principal officers must be confirmed by the Senate.
“President Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional,” wrote Conway, along with lawyer Neal Katyal. “It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.”
Trump announced Wednesday that Whitaker, Sessions’s chief of staff, would take over for the attorney general. Sessions submitted a letter of resignation Wednesday at Trump’s request.
Whitaker’s appointment has raised eyebrows due to his past criticism of the Russia investigation. Whitaker will oversee the special counsel probe, despite calls for him to recuse himself, as Sessions did.
Conway and Katyal’s op-ed cites a Supreme Court decision that ruled the appointment of a lawyer at the National Labor Relations Board invalid because he had not been confirmed by the Senate. Though that ruling was based on a statute, Supreme Court Justice Clarence Thomas also pointed to the Appointments Clause in a separate writing.
“What goes for a mere lawyer at the [National Labor Relations Board] goes in spades for the attorney general of the United States, the head of the Justice Department and one of the most important people in the federal government,” Conway and Katyal write.
The op-ed suggests that Trump should have appointed a previously confirmed official to serve as acting attorney general.
“For the president to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document,” they write.
Conway is a frequent critic of Trump and has paired up with Katyal in the past to question the constitutionality of Trump’s actions.