Welcome back to Trump Watch. The Justice Department's Office of Legal Counsel on Wednesday gave a thumbs-up on Matthew Whitaker's appointment as acting attorney general, but it hardly resolves the continued debate over the constitutionality of his placement. I also have some reflections on the war over Whitaker—and Neomi Rao's nomination to the D.C. Circuit—below.

That's right, it's time for another early edition newsletter! I'll be away in Spain for the rest of this week, testing just how much jamón ibérico one's body can handle. I'll be back after Thanksgiving!

>> Thank you again for checking in, and an early Happy Thanksgiving, Trump Watch subscribers! As always, please email me any time at [email protected], or find me on Twitter.

 

 

War Over Whitaker

The debate over Whitaker's appointment as acting attorney general is unlikely to subside, even with the Justice Department's Office of Legal Counsel signing off on its legality Wednesday.

In a 20-page memo, Steven Engel, the assistant attorney general for the Office of Legal Counsel, backed Trump's installation of Whitaker as the acting attorney general, replacing Jeff Sessions. The move, Engel said, complied with the 1998 Vacancies Reform Act. Crucially, Engel said he does not believe “the Appointments Clause may be construed to require the Senate's advice and consent before Mr. Whitaker may be Acting Attorney General.” (More here.)

Still, the opinion is unlikely to resolve the debate over the legitimacy of Whitaker's installation. For one thing, there is Maryland Attorney General Brian Frosh'schallenge to his appointment, now before U.S. District Judge Ellen Hollander, who is based out of Baltimore. Frosh's office filed the motion, asking the court to declare Deputy Attorney General Rod Rosenstein as the rightful acting AG, as part of a separate Affordable Care Act-related suit.

O'Melveny & Myers partner Walter Dellinger—a former acting U.S. solicitor general and OLC head under the Clinton administration—tweeted Wednesday that the memo had the “better side of the argument that the appointment is consistent with the Vacancies Reform Act.” On the constitutional issue, he said, “it is well argued but in the end I am unpersuaded.” Supreme Court precedent, Dellinger said, permitted bypassing Senate input, but under “special circumstances.” He said OLC did little to address.

That's on top of a group of lawyers—both liberal and conservative—who have penned recent columns challenging the constitutionality of Whitaker's appointment. John Yoo, formerly an OLC deputy assistant attorney general during the the George W. Bush administration, wrote in The Atlantic on Tuesday that Whitaker's placement “violates the appointments clause's clear text.”

On top of all this, Whitaker faces separate calls to recuse himself from overseeing the special counsel probe over critical remarks he's previously made about the investigation. Congressional Democrats have already begun demanding his recusal. 

 

 

On Rao's Rise

In some ways, the Trump administration naming White House regulatory czar Neomi Rao to fill the D.C. Circuit vacancy left by Justice Brett Kavanaugh is unsurprising. Rao's skeptical views on court deference to administrative agencies make her a natural Trump administration pick.

But her nomination reflects an additional trend as well: the rising influence of former Justice Clarence Thomas clerks under the Donald Trump presidency.

Rao, a long-time George Mason University law professor, clerked for Thomas from 2001 to 2002, following a clerkship with Judge J. Harvie Wilkinson of the Fourth Circuit. By our count, Rao is the seventh of Trump's circuit court nominees to have spent time in Thomas' chambers. Just to name a couple other examples: Circuit Judges Allison Eid, now on the Tenth Circuit, and David Stras, seated on the Eighth Circuit, were both former Thomas clerks.

Overall, Thomas has had at least 10 former clerks who have been nominated to federal judgeships under the Trump administration. That's a larger share than for any other current or former Supreme Court justice.

To think of it another way: Both of Trump's picks for the D.C. Circuit will have been Thomas clerks. Trump's first appointment, Greg Katsas, former Trump White House deputy counsel and Jones Day partner, clerked for Thomas at the D.C. Circuit and the Supreme Court.

What I'm Watching

>> In a bid to revive a stalled legislative proposal to “protect Robert Mueller,” Sen. Jeff Flake, R-Arizona, said Wednesday he would not vote to advance any Trump judicial nominee out of committee, or for confirmation, until the bill receives a Senate floor vote. Senate Majority Leader Mitch McConnell has previously said he would not hold such a vote, describing the effort to protect the special counsel as unnecessary. Some legal scholars have previously raised questions about the constitutionality of legislation that would shield Mueller from a Trump firing.

>> U.S. District Judge Tim Kelly in Washington D.C., indicated he would issue a ruling Thursday on CNN's bid to restore the White House press credentials for reporter Jim Acosta. Kelly's announcement came after a Wednesday afternoon hearing that lasted nearly two hours.

>> The Federalist Society's 2018 National Lawyers Convention is set to take place Nov. 15-17. Conservative legal stars are set to attend, including some of Trump's recent judicial appointees (some of whom attended last year's gathering.) Seventh Circuit Judge Amy Coney Barrett, the Eleventh Circuit's Britt Grant, Third Circuit Judge David Porter, and Sixth Circuit Judge John Nalbandian, are just some of the people who will attend.

>> Sidley Austin's Peter Keisler, USC Gould School of Law professor Orin Kerr, and Case Western Reserve's Jonathan Adler are among the names who've signed onto Checks and Balances, a group organized by George Conway ahead of the Federalist Society's big gathering. The group, composed of over a dozen conservative or libertarian lawyers, was formed in part to urge “fellow conservatives to speak up about what they say are the Trump administration's betrayals of bedrock legal norms,” the New York Times says.