The editorial, which was written with Democratic attorney Neal Katyal, goes even farther than the argument made on Fox News Thursday morning by legal analyst Andrew Napolitano, who said that Whitaker was not legally qualified to be appointed as acting AG.
In fact, Conway and Katyal think that the appointment of Whitaker is straight-up unconstitutional.
“The flaw in the appointment of Mr. Whitaker, who was Mr. Sessions’s chief of staff at the Justice Department, runs much deeper,” they write. “It defies one of the one of the explicit checks and balances set out in the Constitution, a provision designed to protect us all against the centralization of government power.”
They go on to argue that appointing Whitaker as acting attorney general is particularly problematic because he will have the power to oversee the work of government officials that were confirmed for their positions by the Senate — despite the fact that Whitaker has received no such Senate confirmation prior to his ascension.
“We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design. Senate confirmation exists for a simple, and good, reason,” they write. “Constitutionally, Matthew Whitaker is a nobody. His job as Mr. Sessions’s chief of staff did not require Senate confirmation… For the president to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document.”
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