Jed Shugerman was quoted in a Slate article about President Donald Trump’s appointment of Matthew Whitaker to lead the U.S. Department of Justice.
On Wednesday, in an Office of Legal Counsel memo, the Justice Department made its argument for why Matthew Whitaker’s appointment as acting attorney general is legal. Here’s that argument, in a nutshell: The Constitution’s text doesn’t really matter; the Framers didn’t mean what they said; and an acting attorney general who served without Senate confirmation for six days in 1866 provides the historical precedent to justify Whitaker’s claim to the office.
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There is a problem with this reasoning: It is incorrect. The AGSA cannot cross-reference the FVRA because it was passed before the FVRA. Engel asserts that the AGSA was designed to work “in conjunction with” the FVRA, but it was passed decades before. As Fordham law professor and Slate contributor Jed Shugerman noted on Wednesday, you cannot cross-reference a law that did not yet exist.