On Wednesday, November 7, Donald Trump illegally appointed Matthew Whitaker to replace Attorney General Jeff Sessions. Sessions had abruptly announced his forced resignation the afternoon of that day. In his resignation letter, Sessions stated he was tendering his resignation upon the request of Trump.
The appointment of Whitaker as acting attorney general is a violation of the Federal Vacancies Reform Act of 1998, FVRA for short. FVRA applies in the following situations "If an officer of an Executive agency . whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office." The resignation of Sessions fulfills this requirement. FVRA further states "the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity." Since Rosenstein is the deputy attorney general or "first assistant", he should have been made acting attorney general.
This claim of illegality is further supported by Article 2, Section 2 of the Constitution which states "...shall have Power, by and with the Advice and Consent of the Senate.and all other Officers of the United States". Whitaker was not confirmed by the Senate of the United States.
This presents a constitutional crisis. The President of the United States is not above the law and is subject to the Constitution, the Supreme Law of the land. Congress must act and challenge this appointment. If Trump refuses to heed the advice of Congress then they must take steps to ensure the constitutional process is followed.
I urge everyone, if you want to make sure the Constitution is followed to contact your members of Congress and urge them to act now.