Former Assistant Solicitor General Neal Katyal and George Conway III (yes, Kellyanne's husband) say President Trump's "appointment" of Matthew Whittaker to oversee the Justice Department is flatly unconstitutional:
Mr. Whitaker has not been named to some junior post one or two levels below the Justice Department’s top job. He has now been vested with the law enforcement authority of the entire United States government, including the power to supervise Senate-confirmed officials like the deputy attorney general, the solicitor general and all United States attorneys.
We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design. Senate confirmation exists for a simple, and good, reason. Constitutionally, Matthew Whitaker is a nobody. His job as Mr. Sessions’s chief of staff did not require Senate confirmation.
Because Mr. Whitaker has not undergone the process of Senate confirmation, there has been no mechanism for scrutinizing whether he has the character and ability to evenhandedly enforce the law in such a position of grave responsibility. The public is entitled to that assurance, especially since Mr. Whitaker’s only supervisor is President Trump himself, and the president is hopelessly compromised by the Mueller investigation. That is why adherence to the requirements of the Appointments Clause is so important here, and always.
As Josh Marshall said earlier today, "It’s really, really bad. ... But it was also clear that it was impulsive, poorly thought out and in many ways counterproductive." In other words, as bad as the Whitaker appointment is on the surface, past Administration actions call into question whether it will actually work out the way they hope.