Neal Katyal And George Conway’s Incomplete Legal Advice

In an Op-Ed for the New York Times, Neal Katyal, the “acting solicitor general under President Barack Obama and…a lawyer at Hogan Lovells,” and George Conway III, “a litigator at Wachtell, Lipton, Rosen & Katz,” argue that Donald Trump’s appointment of Matthew Whitaker as the the Acting Attorney General is unconstitutional. Roughly, according to the Appointments Clause of the US Constitution, Article II, Section 2, Clause 2, “principal officers of the United States must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.” Whitaker is a principal officer, and he has not been confirmed by the Senate.  So, “Mr. Trump’s installation of Matthew Whitaker as acting attorney general of the United States…is unconstitutional. It’s illegal.”

(Katyal and Conway buttress this argument by invoking the words of Justice Clarence Thomas, who argued last year that the appointment of the general counsel of the National Labor Relations Board without Senate confirmation, which was ruled invalid on statutory grounds, was unconstitutional for precisely the same reason – it violated the Appointments Clause.)

Katyal and Conway sign off with a rhetorical flourish that should be familiar to anyone who has read claims alleging the unconstitutionality of a statute or executive action:

[T]he Constitution is a bipartisan document, written for the ages to guard against wrongdoing by officials of any party. Mr. Whitaker’s installation makes a mockery of our Constitution and our founders’ ideals. As Justice Thomas’s opinion in the N.L.R.B. case reminds us, the Constitution’s framers “had lived under a form of government that permitted arbitrary governmental acts to go unchecked.” He added “they knew that liberty could be preserved only by ensuring that the powers of government would never be consolidated in one body.”

We must heed those words today.

Stirring words. Exemplary legal analysis. Alas, something is missing. How can we “heed those words”? What legal redress do American citizens have? Can I call a police officer and ask him to arrest the President? Who will step forward to address this violation of the  law? Illegal acts have been committed; what can be done? Katyal and Conway do not bother to tell us. They tell us that something is is illegal and then they drop the mic.  Unconstitutionality Alleged! Boom!

What Katyal and Conway have failed to do is tell us who has standing to sue.  Standing is “the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case” or “the requirement that a person who brings a suit be a proper party to request adjudication of the particular issue involved.”

So, who, if anyone, has standing to sue in this case? I am not a lawyer or a legal expert. I do not know what the rules are for standing to sue alleging constitutional violations. Mea culpa – my civics lesson were clearly inadequate. It would be nice if a pair of expert lawyers, who enjoy access to one of the the nation’s most visible media platforms, would tell me.

This complaint is a more general one. In the years since Donald Trump has become president, a veritable blizzard of op-eds have descended upon us, alleging some kind of illegal behavior by the administration. (Most of these are admittedly allegations that some norms, rather than laws, have been violated.) In almost none of those is the reader informed of how the citizens of this nation can find legal remedies. An opportunity for a little civics lesson, a little legal education, is missed out in each case. And the impression that citizens have, that the laws of this nation simply do not check the actions of the powerful, is reinforced. From a political standpoint, polemics are of little use if they do not include some call to action: here is the legal violation, this is what must be done to redress it. Elementary rules of composition for political or legal writing, I think.

As things stand, Whittaker is Acting Attorney General. And for all we can tell, no one can do anything about it. If that is the case, it would be nice to know why.

3 comments on “Neal Katyal And George Conway’s Incomplete Legal Advice

  1. Brian Weatherson says:

    I agree entirely that standing is a huge problem in the American legal system. And it’s become an even bigger problem under Trump, who routinely violates laws (such as the emoluments clause) that have very unclear enforcement mechanisms.

    But I don’t think it’s a big problem here. I think there are a bunch of people who very soon will have standing, and the legal firepower to do something about it.

    One is Robert Mueller, if Whitaker does anything to impede his investigation.

    Another is the House Judiciary Committee, if Whitaker fails to comply with any requests/subpoenas that they issue.

    And more generally, literally anyone whose court case involves the activity of the Attorney General (e.g., if the AG signed off on a search warrant) can challenge that activity in their own case, without having to bring a new suit. It’s possible a lot of people will see evidence seized for use against them get suppressed by courts.

    I am not a lawyer, so I could be totally wrong about all this. And everything that points out how awful the law on standing in the US is something I applaud. But for once I’m not too worried about this case. You and I may not have standing, but plenty of people do.

    • Samir Chopra says:

      Brian, no disagreement here – I just wanted to make the point that standing needs to be pointed to so that the folks you are trying to educate and inform through Op-Eds really are. For example, we had much discussion about the violation of the Emoluments Clause earlier – who had standing to sue? No one quite seemed to know. Why don’t legal experts tell us, and explain why? Note that you’re also making educated guesses above. That was my main point. In a country where people still don’t understand that the Constitution only curtails state power, these sorts of polemics are incomplete without such information.

  2. David Boundy says:

    Almost any party to a suit in which the federal government is a party will have standing. In every challenge to an immigration order, the Attorney General is the named party.

    Go to scholar.google.com and search for “v. Sessions” “v. Lynch” “v. Holder” “v. Gonzalex.” You’ll get lots and lots of hits.

    Likewise, in any litigation, a party can move to disqualify the opposing party’s lawyer for conflict and a handful of other reasons.

    In other words, every day, several thousand parties acquire standing to set aside government action my challenging either the appointment itself, or the government’s choice of lawyer.

    Also, I responded to your essay https://aeon.co/essays/the-idea-of-intellectual-property-is-nonsensical-and-pernicious

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