20181128194042495 Reply Final

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1 No. 18-496 T HE N I B ICHAELS , ARRY M , Petitioner v. B. S EFFERSON III, ESSIONS J TTORNEY G ENERAL OF THE U A S TATES , NITED AND HOMAS E. B RANDON , T D EPUTY D IRECTOR , AS H EAD OF THE B UREAU OF A LCOHOL , T OBACCO , F IREARMS AND E XPLOSIVES , Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit REPLY IN SUPPORT OF MOTION TO SUBSTITUTE Thomas C. Goldstein Michael E. Zapin Counsel of Record Tejinder Singh 20283 State Rd. 7 Charles H. Davis Suite 400 Daniel H. Woofter Boca Raton, FL 33498 Erica Oleszczuk Evans (561) 367-1444 G OLDSTEIN & R USSELL , P.C. [email protected] 7475 Wisconsin Ave. Suite 850 Bethesda, MD 20814 (202) 362-0636 [email protected]

2 TABLE OF CONTENTS TABLE OF AUT HORITIES ... ii STITUTE ... 1 MOTION TO SUB REPLY IN SUPPORT OF THE I. This Court Has The Power To Grant The Motion To Substitute ... 2 II. ubstitute ... 5 This Court Should Decide The Motion To S Rod Rosenstein Is The Acti ng Attorney General ... 13 III. The appointment of Mr. Whitaker is unconstitutional under the A. Appointments Clause ... 13 The appointment of Mr. Whitaker is illegal under the Attorney B. General Success ion A ct ... 24 CONCLUSION ... 29 TABLE OF APPENDICES ... 1a Appendix A: List of Historical Appointments Appendix B: Historical documents conc erning the resignation of Secretary of War Henry Dearborn Letter from Henry Dearborn to Th omas Jefferson (Feb. 16, 1809), Founders Online , National Archives, h ttps://founders.archives.gov/ documents/Jefferson /99-01-02-9810 ... 13a the War Department (Feb. 17, 1809), Letter from Thomas Jefferson to , National Archives, h ttps://founders.archives.gov/ Founders Online documents/Jefferson /99-01-02-9824 ... 14a as Jefferson (Feb. 17, 1809), Letter from John Smith to Thom , National Archives, h ttps://founders.archives.gov/ Founders Online documents/Jefferson /99-01-02-9825 ... 15a Dearborn, Henry - Biographical Information, Biographical Directory of the U.S. Congress: 1774-Present , http://bioguide.congress.gov/scripts/ biodisplay.pl?in dex=d000178 ... 16a Secretaries of War a nd Secretaries of the Army William Gardner Bell, 28 (1992) (updated electronically May 22, 2001), https://history.army.mil/books/ Sw-SA/SWSA-F m.htm ... 17a Letter from James Madison to William Eustis (Mar. 7, 1809), Founders Online , National Archives, h ttps://founders.archives.gov/ documents/Madison/ 03-01-02- 0028 ... 22a Letter from William Eustis to James Madison (Mar. 18, 1809), Founders Online , National Archives, h ttps://founders.archives.gov/ documents/Madiso n/03-01- 02-0070 ... 23a i

3 TABLE OF AUTHORITIES Cases , Allen v. Wright 468 U.S. 737 (1984) ... 4 , English v. Trump 279 F. Supp. 3d 307 ... 29 (D.D.C. 2018) Freytag v. Comm’r , ... 2, 5, 7 501 U.S. 868 (1991) Glassroth v. Houston , (M.D. Ala. 299 F. Supp. 2d 1244 )... 3 2004 Glidden Co. v. Zdanok , ... 5 370 U.S. 530 (1962) Support Services, Inc. , Hooks v. Kitsap Tenant 816 F.3d 550 (9th Cir. 2016) ... 29 Marbury v. Madison , 5 U.S. (1 Cranch) 137 (1803) ... 7 Morrison v. Olson , 487 U.S. 654 (1988) ... 6 , Nguyen v. United States 2003) ... 7, 8 539 U.S. 69 ( NLRB v. Noel Canning , (2014) ... 6 134 S. Ct. 2550 , Raines v. Byrd 521 U.S. 811 (1997) ... 10 Ryder v. United States , 515 U.S. 177 (1995) ... 7, 8 Terminiello v. Chicago , 337 U.S. 1 ... 14 (1949) United States v. Eaton , 169 U.S. 331 (1898) ... 15, 16, 17, 19 United States v. Windsor , 570 U.S. 744 (2013) ... 4 Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc. , ... 4 454 U.S. 464 (1982) ii

4 Constitutional Provisions passim U.S. Const. art. II... passim U.S. Const. art. II, § 2, cl. 2 ... U.S. Const. a rt. II, § 3 ... 14 U.S. Const. a rt. III ... 2, 4 Statutes 5 U.S.C. § 3347 ... 2 7 5 U.S.C. § ) ... 29 3347(a)(1 5 U.S.C. § 3349c ... 28 508 ... 28 U.S.C. § 13, 25 508(a) ... 26 28 U.S.C. § 28 U.S.C. § ... 26 508(b) 28 U.S.C. § 1292(b) ... 10 50 U.S.C. § 1804 ... 9 Regulations 28 C.F.R. pt. 600 ... 11 Rules 35.3 ... 2, 3 Sup. Ct. R. R. 35.4 ... 3 Sup. Ct. Other Authorities Sir Arthur Conan Doyle, The Adventure of the Beryl Coronet , in The Adventures of Sherlock Holmes cs 1996) ( 1892) ... 13 (Wordsworth Classi Memorandum for the Heads of Federal Executive Departments and Agencies and Units of the Executive Office of the President, from Alberto Gonzales, Counsel to the President, Re: Agency Reporting Requirements Under the Vacancies Reform Act (Mar. 21, 2001) ... 27 S. Rep. No. 105-250 (1998) ... 25 iii

5 REPLY IN SUPPORT OF THE MOTION TO SUBSTITUTE This is a constitutional crisis. It is a constitutional crisis even if we are dis- the Constitution requires that principal tracted from and dulled to it. Article II of officers including the Attorney General be confirmed by the Senate. For the first time in the Nation’s history, the President has forced out a principal officer and replaced him with a non-confirmed app ointee, indeed refusing to submit him or anyone else r was best known for his views that the for confirmation. That hand-picked successo down an active criminal investigation into Department of Justice should limit or shut whether the President and his campaign colluded with a foreign power and ob- structed justice. That appointee now controls the investigation. The President made the appointment in a fashion calculated to prevent the Constitution’s enforcement, because the Special Counsel leading the inve stigation is barred by law from raising the issue and because it will be mooted before any other case can reach the Court. See Part II, . infra The President has gone well past dishea rtening tweets. This is a power grab. It is a power grab designed to protect the President personally by evading the author- ity and responsibility of the Senate and this Court under the Constitution. Yes, the Court can blink at that reality, decline to act, and move on. But history will regret that it did. The Nation is thankful not mer ely for a judiciary that forcefully articulates its independence and neutrality, but even mo re so for one that adapts to the circum- stances as required to protect our liberty by responding to assaults on the separation of powers. 1

6 This Court has held, in terms, that it will decide an Appointments Clause chal- by a lower court, indeed even where the lenge in the first instance — without a ruling the separation of powers. claim has been forfeited — because it is foundational to Freytag v. Comm’r , 501 U.S. 868, 879 (1991). The Court should apply that principle here, promptly set the Motion for argument and, after due consideration, grant it. I. This Court Has The Power To Grant The Motion To Substitute. cannot The Government’s first argument is frivolous. It says that the Court grant the Motion. So, for example, even if the Government conceded that the Presi- dent acted illegally and that Mr. Rosenstein is the Acting Attorney General as a mat- ter of law, the Court would be forbidden to substitute him. That is obviously wrong. There is no merit to the Government’s asse rtions that (a) the Court’s Rules require it to accept without question the President’ s contested assertion of who lawfully holds the office, and (b) the Constitution forbids the Court to act because petitioner has not suffered any Article III injury from th e substitution of Mr. Whitaker. a. Just as the Court’s Rules don’t allow the Government to designate an incor- rect successor, they don’t preclude this Court from granting a Motion to Substitute to correct an error. The relevant Rule provides t hat “any successor in office is automat- ically substituted as a party.” Sup. Ct. R. 35.3; see Gov’t Mem. in Opp. 4 (Mem.). But “automatically” is an adverb that modifies “substituted” — i.e. , it describes the pro- cess of substitution. The antecedent quest ion is “who is the successor?” The Court certainly could have written a Rule that made the President’s des- ignation definitive: “Upon designation of the appointing authority, any successor in 2

7 office is automatically substituted.” But it di dn’t; in fact, it didn ’t give the act of ap- it calls on “[t]he pointment (or even the Government’s views) pri ority at all. Instead parties” to “notify the Clerk in writing of any such successions.” Sup. Ct. R. 35.3. In the great majority of cases, of cour se, a court doesn’t adjudicate substitution because it isn’t contested. But in the rare case that it is, this Court is not required to just accept the Government’s representation and ignore the issue. In fact, multiple individuals can claim simultaneously to hold an office. Courts have to resolve such disputes, and they properly do so in the context of a motion to substitute. See, e.g. , Glassroth v. Houston , 299 F. Supp. 2d 1244, 1245-46 (M.D. Ala. 2004). So, the Government’s assertion that Mr. Whitaker is the Acting Attorney Gen- eral doesn’t have the force of law; it is just that: an assertion. The identity of the actual lawful officer is the classically resolves. The fact kind of legal question a court that Mr. Whitaker got there first on the docket is not an entitlement that eliminates the dispute and precludes other candidates. This is a court proceeding, not musical chairs. The Government also says that it is the real party in interest, so that even if Mr. Whitaker was erroneously substituted, pe titioner will still ge t all the relief to which he is entitled. Mem. 5-6. That’s true. But it doesn’t mean the Court has no power to grant the Motion. If that princip le were controlling, the Rules wouldn’t pro- vide for substitution at all. But they do. They insist on either identifying the correct only the office itself. Sup. Ct. R. 35.4. person holding the office or on designating 3

8 There isn’t a third option: naming whoever the Government designates, even if wrongly. b. The Government next briefly argues that the Constitution forbids this Court from substituting Mr. Rosenstein un less petitioner has Article III standing to make the request. Mem. 9-10. That’s also wr ong. Standing goes to the Court’s power to grant relief on a request that it change the status quo. United States v. Windsor , Allen v. Wright , 468 U.S. 737, 751 (1984) (citing 570 U.S. 744, 757 (2013); Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc. , 454 U.S. 464, 472 (1982)). The Government does not doubt t hat petitioner has standing to bring his underlying lawsuit. Although the federal courts must issue thousands of procedural orders a day, and millions a year, the Government couldn’t find one case holding that a procedural request like this requires Article III standin g. There is a reason . A litigant doesn’t need to identify a concrete d by the court taking an ad- injury that will be redresse ministrative action like granting its lawyer pro hac vice status, scheduling a hearing, expanding the ordinary page limits — or subs tituting an official. We know that: if the Court were required to find a justiciable co ntroversy to exercise the power of substi- tution, it couldn’t have substituted Mr. Whitake r in the first place. But it did, and it 1 obviously has the power to substitute someone else now. 1 To be clear, we believe that this Court’s ruling on the substitution motion will also have real consequences in this case. As we said in the Moti on (at 1), formally, the Acting Attorney General’s supervision of this case is just like any other. But as a practical matter, there is a realistic chance that Mr. Whitaker has been or will become personally involved in determining the position of the United 4

9 II. This Court Should Decide The Motion To Substitute. can use the Motion to Substitute to The real debate is not whether the Court should . Oddly, the Gov- decide who is the Acting Atto rney General, but whether it ernment spends only two pages on that issu e. Mem. 10-12. As the Motion anticipated, the Government asserts that the Court’s “general practice,” id. 10, is to allow an issue to be addressed first in the lower courts and that it “typically,” 11, would not do id. 2 so in a context like this. Preliminarily, the Government fails to recognize that the ordinary rule does not apply to an Appointments Clause challenge. resolved a challenge to the Freytag assignment of cases by the Tax Court. Th e petitioners consented to the assignment. When they raised an Appointments Clause challenge on appeal, the court of appeals held that it was waived. So the merits we re addressed in the first instance in this Court, over the Government’s thorough objection. The Court reasoned that “the dis- ruption to sound appellate process entailed by entertaining objections not raised be- Harlan called ‘the strong interest of the low does not always overcome what Justice federal judiciary in maintaining the constitu tional plan of separation of powers.’” 501 Glidden Co. v. Zdanok , 370 U.S. 530, 536 (1962)). U.S. at 879 (quoting States. We seriously doubt, for example, that he is agnostic on this Motion. He is not recused. The petition for a writ of certiorari it self raises a significant Second Amendment issue, on which the circuits are divided. It is realistic that th an active role on that issue, e Acting Attorney General will play especially if certiorari is granted. 2 We were struck but not surprised by the Admi nistration’s unblushing insistence that this Court follow normal order and refuse to decide this critical issue. The bright contrast between the Government’s position here and the one it articula tes in its own applications risks making the Court l practices only to help this Administration. appear unbalanced, as if it departs from its usua 5

10 The Court would not be writing on a blank slate here. See Mem. 17 (arguing that the proper construction of the Vacanc ies Act was fully considered and resolved in its favor by a court of appeals and distri ct court). But in any event, this Court’s close to an ordinary question in an ordinary intervention is required because this isn’t context. The importance of the issue is astoni shing. A motion to substitute is likely to be the only context in which the Court can decide the question. The applicable prin- e Court will take actions necessary to pro- ciple of practice is therefore instead that th tect its own ability to resolve such a foundational dispute. The Motion presents a legal question that requires a ruling by this Court. It is an epic inter-branch conflict over the powe rs of each one; checks and balances are everywhere. The President forced out a Senat e-confirmed principal officer. He then issued an order personally selecting someon e else who he refused to nominate. That order seeks to evade not only the Senate’s right and obligation under Article II of the Constitution to decide whether to consent, but also an on-point statute enacted by Congress — the Attorney General Succession Act. On these weighty issues relating to the validity of an appointment, the author- ity of an important government official to act, and the separation of powers between the branches, the buck stops here. See, e.g. , NLRB v. Noel Canning , 134 S. Ct. 2550 (2014) (holding that Recess Appointments Cl ause only includes intra-session recesses of substantial length, extend s to vacancies arising before recesses, and President’s appointments made in three-day period be tween two pro forma sessions of the Senate g that the Ethics and were invalid); Morrison v. Olson , 487 U.S. 654 (1988) (holdin 6

11 Government Act did not violate the Appoin tments Clause, did not violate Article III, doctrine). The Court has resolved those ques- and did not violate separation of powers tions, even when the question is not first decided in the lower courts, not only in Freytag , but in a ruling that almost all regard as not only historic but rightly decided. Marbury v. Madison , 5 U.S. (1 Cranch) 137 (1803) (petition for a writ of manda- See mus to this Court). Critically, the Government does not dispute that a prompt ruling on the ap- pointments challenge would benefit the admini stration of justice nationally. It does not doubt that unwinding Mr. Whitaker’s unl awful acts as Acting Attorney General would be enormously disruptive. Important ly, those acts are subject to later, collat- eral challenge because the de facto officer doctrine does not apply to challenges under the Appointments Clause. , 539 U.S. 69, 77 (2003); Ryder See Nguyen v. United States v. United States , 515 U.S. 177, 182 (1995). A thousand fires are beginning to bloom in the lower courts, right now. Conversely, if the Government is correct on the merits, the country would benefit too from a ruling upholding the appointment, ending all that unnecessary litigation, and removi ng the cloud that hangs over it. Still, the Government suggests that the Court should only decide the question if it arrives here in the usual way: in a peti tion for a writ of certiorari, after consider- ation in the lower courts. The problem is that it won’t — either because there isn’t another context in which it can be raised, or because it will become moot before it arrives here. In fact, the Solicitor General makes that very p oint repeatedly. His need to be addressed,” Mem. 12, doesn’t statement that “[t]he question may never 7

12 actually describe whether the issue is impo rtant enough to require this Court’s at- t is instead a back handed acknowledgment tention; it indisputably is. That statemen that “the Court probably will never get anoth er chance.” And the Administration is taking full advantage of the assumption th is Court cannot do anything about it. Mr. Whitaker’s role is vital in authority and sweeping in scope, but its nature ge to his appointment, or at the very least is such that it will evade a judicial challen review in this Court. This Court has co nsidered Appointments Clause challenges to adjudicators, because in those cases a pa rty to the adjudication can challenge the Ryder E.g. , Nguyen , 539 U.S. at 77; , 515 U.S. at 182. But the Attorney decisionmaker. General is different. The Government itself stresses that courts may ultimately never decide the lawfulness of the appointment because “the Department’s litigation is conducted and supervised by officers whose litigation auth ority does not depend on the validity of Mr. Whitaker’s designation as Acting Attorn ey General.” Mem. 12. In fact, the Gov- ernment has already made that exact argument in the lower courts opposing a chal- lenge to Mr. Whitaker’s appointment. See Gov’t Resp. in Opp. to Mot. to Dismiss In- dictment, United States v. Valencia , No. SA-17-CR-882-DAE (W.D. Tex. Nov. 19, 2018) (ECF No. 196). Mr. Whitaker also sets the Department of Justice’s enforcement priorities, but he does so at such a high level of abstracti on that it’s hard to see how someone would have standing to bring a challenge to th e appointment. On the Government’s view, raise” an appointments challenge is if she the only way a litigant even “could seek to 8

13 can show she was “adversely affected by an action personally taken by Mr. Whitaker while serving as Acting Attorney General.” Mem. 12. Mr. Whitaker has the final say on numerous other questions every day. But those decisions aren’t public. Take the co ncrete responsibility of authorizing FISA warrants. Mr. Whitaker must do that, 50 U.S.C. § 1804, but they are secret. So the target does not know to challenge them. Just as important, this question will probably evade this Court’s review forever . Yes, other challenges to the appointment are now being if it doesn’t act very soon briefed in the lower courts. But even assumi ng the parties can establish standing, the issue is going to be mooted. Again, it is striking that the Solicitor General notes the pendency of that litigation (citing just a few of the examples) but never even obliquely suggests to the Court that any of those case s will provide this Court with a vehicle to decide the issue. If he could have, he would have. Sometime within a year, the President is surely going to nominate and the Senate is going to confirm a permanent Atto rney General. He will then make all the motions to substitute in the lower courts moot, instantly; the new, undisputed Attor- ney General will be substituted automatically. Don’t just believe us. The Solicitor General puts it in lights: “The question coul d also become moot if the Acting Attorney General is succeeded by another official be fore these cases are resolved.” Mem. 12. In fact, the Solicitor General does not id entify any way for cases in the lower ent moots the issue. A district court’s rul- courts to reach this Court before the Presid 9

14 ing on a motion to substitute is not a fi nal, appealable judgment. Nor is there prece- a court of appeals could choose to hear dent deeming it a “controlling” question that under 28 U.S.C. § 1292(b). According to the in a discretionary, interlocutory appeal Government, the question has no practical consequence at all. Just as important, the Government doesn’t even need to appeal if it loses in the district court or court of appeals. Mr. Whitaker can step aside in the individual case and decline to authorize power) that puts his authority nationally an appeal (another example of his personal at stake. A lawsuit directly challenging the appointm ent has been filed by three isolated Democratic Senators. Blumenthal v. Whitaker , No. 1:18-cv-02664 (D.D.C. Nov. 19, 2018) (ECF No. 1). But they have not yet submitted briefing on how they can over- come the obvious argument that under Raines v. Byrd , 521 U.S. 811 (1997), they lack standing on the basis of being deprived of th e right to vote on the nomination of the Attorney General. And of course, the district court has n’t even begun adjudicating their claim. There is another very weighty example that truly places this Motion in historic context. See supra at 1. The Department of Justice is investigating whether the Pres- ident of the United States and his campa ign colluded with a foreign power and ob- structed the investigation. Mr. Whitaker’s appointment displaced Mr. Rosenstein, who previously oversaw the investigation. Mr. Whitaker’s credentials for the position are unconventional. It is widely accepted that at least one reason the President chose investigation should be ended altogether him is that Mr. Whitaker thinks that this 10

15 or at least limited much more than Mr. Ro senstein has directed. The President has now empowered Mr. Whitaker to put those opinions into practice while the President himself bitterly attempts to undermine public confidence in the investigation almost daily. Every day now, Mr. Whitaker is overseei ng decisions about the scope of the investigation. Among other things, after a ppointing Mr. Whitaker, the President re- versed himself and said he would not sit vo luntarily for an interview with the Special Counsel; now the President will not provide testimony unless Mr. Whitaker allows the Department to subpoena him. Obviously, it would be better if this dispute over the appointment were pre- sented in the course of the investigation itself. We recognize that. But — and this is absolutely essential to understand — that won’t happen. The Department of Justice’s position that Mr. Whitaker was validly appointed binds the Special Counsel in charge of the investigation; by law, he cannot challenge it. See 28 C.F.R. pt. 600. Indeed, in response to a specific Order to address the appointment, the Special Counsel just filed a brief in the D.C. Circuit (also signed by a Deputy in the Office of the Solicitor Gen- eral, which represents Mr. Whitaker here) ta king “the government’s view” and reit- erating the Department’s position (i tself controlled by Mr. Whitaker). See U.S. Supp. Br. 1-2, Miller v. United States , No. 18-3052 (D.C. Cir. Nov. 8, 2018); see also id. 8 (“The Office of Legal Counsel has determined that the designation of the Acting At- torney General is valid as a statutory and constitutional matter.”). 11

16 No one else implicated in the investig ation would challenge Mr. Whitaker’s ll those people want the investigation nar- replacement of Mr. Rosenstein either. A same brief, the Special Counsel explained rowed, not expanded. For example, in that that a witness challenging a grand jury s ubpoena wouldn’t benefit from a hypothet- ical motion seeking to have Mr. Whitaker removed and replaced by Mr. Rosenstein, e subpoena in the first place. Id. because Mr. Rosenstein oversaw th The investigation will almost definitely close before this Court would decide this question in a different case next Term. There is no way to re surrect it if this Court later concludes in a se parate case that Mr. Whitaker’s appointment was illegal or unconstitutional. Again, who would make the argument? How would they do it? Even assuming that some other vehicle outside the Russia investigation could present the issue later, what are the benefi ts of the Court declining to exercise its discretion to decide the question now? Th e Solicitor General has no serious argument on that point. As the Motion explains, and the Solicitor General does not doubt, the legal issues are well developed and fully pre sented. Often the Court will allow even a developed question to percolate in the lower courts, to see if a conflict meriting its review develops. But here, th e issue is so weighty and g oes to the fundamental sepa- ration of powers in our government. The Co urt’s intervention seems inevitable, if it is possible. The Court would merely be wait ing to count up lower court judges as they took sides. We will close this discussion by putting the point starkly. If there is a realistic prospect of this question reaching the Court in a timely fashion in some other way, 12

17 deny the Motion. But if there is not, it mu st be decided on the merits. The question is ave. “[W]hen you have excluded the im- too important. The circumstances are too gr possible, whatever remains, however i mprobable, must be the truth.” Sherlock Holmes, in Sir Arthur Conan Doyle, The Adventure of the Beryl Coronet , in The Ad- 257, 270 (Wordsworth Classics 1996) (1892). ventures of Sherlock Holmes III. Rod Rosenstein Is The Acting Attorney General. We assume that this Court’s decision wh ether to exercise its discretion to re- solve this dispute here and no w will depend in part on its sense of the merits. The Court is more likely to intervene promptly if the President has a cted in serious viola- tion of Article II and 28 U.S.C. § 508. Th e Government treats those requirements like the law’s vestigial nuisance, along the lines of an impacted wisdom tooth, inflamed appendix, or bruised coccyx: They may have served some purpose generations ago, but now we would just be better off with out them. That is not how law works. A. The appointment of Mr. Whitaker is unconstitutional under the Appointments Clause. The Framers saw Donald Trump coming al most 250 years ago. They had King George to work from. Among the limits they imposed on the presidency was the Ap- pointments Clause. Given that all now agree that “the Attorney General is surely a principal officer for purposes of the Appoin tments Clause,” Mem. 21, there is no way to reconcile the designation of Mr. Whitaker with its text: The President “shall nom- inate, and by and with the Advice and Cons ent of the Senate, shall appoint . . . Offic- Const. art. II, § 2, cl. 2. ers of the United States.” U.S. 13

18 The Appointments Clause is a command, not a notion. Even if soliciting the Senate’s “advice” is precatory, securing its “consent” is mandatory. But not as a prac- tical matter, according to the Government, which recognizes constitutional limit no on the President forcing out a Senate-conf irmed principal officer to install a hand- picked successor with all the same powers as his predecessor. Rather, the Govern- ment merely intones the words “temporary ” and “temporarily” — 29 times in total — as if that will convert Mr. Whitaker’s open-ended, plenary control of the Nation’s law enforcement apparatus into a short-term stay. The Government specifically asserts that the appointment is valid under one precedent and in light of history. That is wrong. Sometimes principal officers are tem- porarily unable to perform their duties. Somet imes the office its elf becomes vacant and there is a gap in time before the conf irmation of a successor. The President still must “take care” to ensure that the Nation’s laws are faithfully executed. U.S. Const. art. II, § 3. So this Court has recognized that in those special circumstances a non- confirmed official may temporarily perform the functions of the principal officer. Cf. Terminiello v. Chicago , 337 U.S. 1, 37 (1949) (Jackson, J., dissenting) (The Constitu- tion isn’t a suicide pact.). But it has neve r suggested — and no President in history has ever taken the position — that the Pr esident may evade advice and consent by forcing out a principal officer and substi tuting a hand-picked, non-confirmed choice to serve while affirmatively disavowing any intention to nominate a permanent suc- cessor. 14

19 1. The Government relies on United States v. Eaton , 169 U.S. 331 (1898), which rejected an Appointments Clause challenge to the position of vice-consul. The consul-general was a representative of the United States in a foreign nation and thus a principal officer, confirmed by the Senate. Congress recognized, however, that the consul-general might become ill or otherwise unavailable to serve in a post far away sending a replacement abroad was time con- from the United States, at a time that suming and perilous, seriously disrupting ou r foreign relations. So it provided for “the who would be a consular officer who could designation in advance” of a vice-consul, ul-general in the case of exigency. Id. at 339. exercise the responsibilities of the cons The statute creating the position limited the service of the vice-consul to the period of the exigency: “Vice- consuls . . . shall be deemed to denote consular officers, who shall be substituted, temp orarily, to fill the places of consuls-general . . . when they shall be temporarily absent or relieved from duty.” 169 U.S. at 336 (quoting Rev. Stat. 1674). The vice-consul could only “be called upon to discharge the duties” when the consul-general himself “ceased temporarily to perform his duties.” Id. at 340. In- deed, the designated vice-consul was not even paid for the role, except to the extent he performed the consul-general’s responsi bilities during that temporary exigency. Id. at 336-37 (citing Rev. Stat. 1703); see also id. at 338-39. The strict statutory limits on the vice-consul’s service tracked Congress’s goal “to prevent the continued performance of consular duties from being interrupted by any temporary cause, such as absence, sickness or even during an interregnum could be appointed.” 169 U.S. at 339. The caused by death and before an incumbent 15

20 point was to “secure an unbroken performanc e of consular duties by creating the nec- e qualified to perform them, free from any essary machinery to have within reach on vicissitude which might befall” the consul-general. Id. Under this scheme, even when the vice-consul performed the consul-general ’s responsibilities, he remained the lat- ter’s “subordinate.” Id. at 339. Eaton demonstrate the system at work . The consul-general in what The facts of very sick and left for the United States. was then known as Siam (now Thailand) got Eaton served as vice-consul and performed the consul-general’s responsibilities in his absence. The Government later argued that Eaton shouldn’t be paid. As is relevant here, the Attorney General argued that anyone exe rcising the responsibilities of a principal officer was himself a principal officer re quiring Senate confirmation under the Ap- pointments Clause, “whether temporarily acti ng or temporarily in office or perma- nently.” U.S. Br. 14; see also id. 15 (“Within the meaning of the Constitution an am- bassador, temporary or permanent, could not be an inferior officer any more than a judge of the Supreme Court could.”); id. 19 (“No practice or act of Congress can make an officer so defined anything but a consular officer within the meaning of the Con- stitution. The President must app oint and the Senate confirm him.”). This Court rejected that argument. It held that the exercise of a principal of- ficer’s authorities was not ipso facto sufficient to require Senate confirmation, so long as the service was a temporary response to specific, short-term circumstances: Because the subordinate officer is charged with the performance of the for a limited time and under special and temporary duty of the superior 16

21 conditions , he is not thereby transformed into the superior and perma- er void any and every delegation of nent official. To so hold would rend power to an inferior to perform under any circumstances or exigency the duties of a superior officer, and the discharge of administrative duties would be seriously hindered. The manifest purpose of Congress in clas- s to so limit the sifying and defining the grades of cons ular offices . . . wa the vice-consuls and thereby deprive period of duty to be performed by them of the character of consuls in the broader and more permanent sense of the word. 169 U.S. at 343 (emphasis added). The Court determined that vice-consuls we re inferior officers. But its holding was not limited to those offi cials. 169 U.S. at 343-44. It cited approvingly the practice at the time of the founding of private indi viduals performing the functions of a consul temporarily, including a consul’s son right af ter the consul died. For that period, they were regarded as lawful, de facto consuls and paid as such. at 344. Id. Matthew Whitaker is no vice-consul to Siam. And Jeff Sessions did not depart for the other side of the planet by steams hip, gravely ill, leaving no other Senate- confirmed official behind. He was at his post at the Department of Justice in Wash- ington, D.C. His Senate-confirmed Deputy, Rod Rosenstein, was in the office directly below. If their windows opened, they coul d open them and talk to each other. But put the particular facts of Eaton to the side. The Government admits that Eaton only approves a position that conforms to “the limits of the then-existent stat- utory and regulatory procedures” in that case. Mem. 24. But Mr . Whitaker’s appoint- ment looks nothing like those. The Presiden t himself created the vacancy in the prin- the need for someone to perform the princi- cipal office by forcing out the incumbent; 17

22 pal officer’s responsibilities did not arise fr om external circumstances. That is a crit- ical distinction, because it determines whether the President can remove a Senate- confirmed officeholder and avoid the App ointments Clause in selecting the replace- ment. But there is more. The President is not trying to ensure the unbroken ordinary, pre-determined operations of the Department of Justice; he’s trying to break them, by not allowing the Senate-confirmed Deputy to serve as Acting Attorney General. any respect defined by a limited exigency, Mr. Whitaker’s service is open ended, not in such as absence, illness, or death. And Cong ress did not create his position (Chief of Staff) in anticipation that he would perform the responsibilities of the principal officer in any circumstances, much less these. 2. The Government next leans heavily on the Nation’s early history. We pause on the fact that it claims in 2018 to have di scovered the Constitution’s original mean- ing, when there is a much more contemporaneous source: the Attorney General’s just- quoted brief in Eaton . That brief’s broad reading is irreconcilable with the Govern- ment’s current characterization of the supposedly narrow limits of the Appointments Clause. Nonetheless, the Government now says that there were 160 times between 1809 and 1860 when a non-Senate confirmed official performed the responsibilities of a cabinet secretary. Mem. 23. Based on the sources the Office of Legal Counsel cites, we think the correct number is actually 191. But that is only because it is counting , we detail all of them.) The history totally irrelevant examples. (In Appendix A, infra 18

23 is actually terrible for the Government, be cause there are zero times when the Pres- to install a non-confirmed successor, or ident forced out a Senate-confirmed official al in the absence of some exigency re- even appointed a non-Senate confirmed offici quiring the appointment. For those and othe r reasons, there are zero cases that re- 3 motely resemble this one. A sure sign of the weakness of the Government’s position is that it has to resort e great majority of th e instances that it to inaugural-crowd-level math. Off the top, th cites are irrelevant. To begin with, a doze n were appointments made during a con- gressional recess, expressly authorized by Article II. We don’t understand how the Government could possibly have counted these. In a massive proportion of the remaining instances — 153 of 179 — there wasn’t an appointment at all . These were like the facts of Eaton . The incumbent was still in office. A chief clerk or assistant se cretary served briefly, apparently when the s then-known as an “acting” appointment, incumbent was sick or away. (This wa whereas service during a vacancy when the office was actually open was known as ad interim .”) For most of this period of our hi story, the telegraph hadn’t even been “ invented. So someone had to be present, conscious, and in charge at the relevant De- partment. The incumbent retained the power to reject or countermand any act of the person who briefly stood in fo ty of these short periods of r him. (Also, the great majori 3 So far as can be determined, the closest the Nation came was Andrew Johnson’s failed attempt to remove Secretary of War Edwi n Stanton and replace him with Ge neral Lorenzo Thomas. But Stan- ton refused to leave office. The entire episode was part of the basis for the Articles of Impeachment of Johnson. That is hardly a historical endorsement of the practice. 19

24 service — 117 — themselves began during a congressional recess, making it doubly wrong for the Government to include them because if the President actually did ap- point someone, it would have been a recess appointment.) That leaves only 26 appointments. All of them were for exigencies. ad interim Fifteen times, a Cabinet Secretary resigned in the transition between presidential administrations. It would have made no se nse for the outgoing President to nominate a successor who wouldn’t be confirmed bec ause the incoming President would just nominate someone else. The acting appointment was almost always limited to the 4 brief transition period — less than a week. 4 The Office of Legal Counsel cherry-picks one example to create the false impression that there were regular lengthy appointments of non-confirmed officials. With two weeks left in the Jefferson Administration, Secretary of War Henry Dearborn stated his intention to resign and the President named the War Department’s second -in-command (the Chief Clerk, Jo hn Smith) as Acting Secretary. The Government says that Smith served for 50 days. In fact, that is slippery math and the history is more complicated. See Appendix B, infra (collecting the releva nt source material). When Jefferson appointed Smith, he actually serv ed in an acting capacity while Dearborn re- mained in office, so we list it in that category in the Appendix. The initial letters by Dearborn and Jefferson indicate that Dearborn intended to resi gn immediately. But that apparently didn’t happen. Instead, Dearborn formally retained his position and left Washington to also serve as the Collector of the Port of Boston. Dearborn’s absence was an obvious exigency. Even if Dearborn had actually resigned his position, the end of Jefferson’s term was an exigency too. Madison then took office and immediately nominated William Eustis as the next Secretary of War. The Senate confirmed him the next day. According to the official records of both the Congress and the Army, that is when Dearborn actually resigned. But Madison hadn’t even told Eustis that he was being nominated. Eustis was away from his home in Massachusetts, didn’t learn he had been confirme d for eight days, and didn’t even bother to write Madison back for three more. He then delayed leav ing for Washington and did not arrive for some time. Given the exigency that the confirmed Secr etary wasn’t in Washingt on, D.C., Madison under- standably kept Smith as a holdov er — still in an acting, not ad interim capacity — until Eustis arrived and took charge. 20

25 Four others were unexpected emergencies. Three times, the cabinet officer died 6 5 in office. In the fourth, the Senate rejected a cabinet nominee, for the first time ever. ad in- That leaves seven. They are the category most analogous to this one: appointments of non-Senate-confirmed officials when Cabinet officials resigned terim during the President’s term. Tellingly, the Government (including the Office of Legal because they look nothing like the appoint- Counsel) does not discuss them. That is never in history forced out a Cabinet Secretary ment of Mr. Whitaker. The President and replaced him with a hand-picked, non- confirmed appointee from outside the De- partment’s chain of authority, much less one who is acting effectively indefinitely with no effort to confirm a successor. • Twice, the Secretary of the Navy resigned during the War of 1812. The Presi- dent appointed the second-in-command and submitted nominations 5 and 17 days later. • Twice, a cabinet member resigned to protest the President’s policies. Both times, the President appointed the se cond-in-command and nominated a suc- cessor two days later. 5 For example, the Secretary of the Navy was killed during an ill-fated demonstration of “The Peacemaker,” which was then the world’s largest naval weapon. The Senate-confirmed Secretary of State regrettably could not step in to take over the position, because he was killed too. 6 It was Roger Taney, who had been serving a re cess appointment as Treasury Secretary. Jack- for two days, until Levi Woodbury was confirmed instead. son appointed the Chief Clerk ad interim 21

26 • Two involved the cabinet of President Tyler, which carried over from President Harrison, who had died of pneumonia after only a month in office. Every mem- ber of the cabinet but one resigned in protest of Tyler’s treatment of en masse Whig initiatives, just a few months into his term. Tyler waited to make recess appointments for some, but needed Secretaries of War and the Navy immedi- ately, so he appointed the seconds-in-command on an acting basis. Tyler then faced enormous resistance from the Senate, which was controlled by the Whigs, and which ultimately rejected 7 of 20 of his nominations. Finding candidates that the Senate would accept was difficult. Still, Tyler submitted successful nominations for permanent Secretaries only 2 and 30 days later. • In the final instance, at the very be ginning of the Administration, a Cabinet official immediately regretted accepting and resigned, citing his nervous dis- position. The President appointed the Department’s second-in-command and submitted a permanent nominee 16 days later. The history is even worse for the Gove rnment with respect to the Attorney General specifically. From the Nation’s founding until Congress created Senate-con- firmed officials below the Attorney Genera l in 1868, there were 18 gaps between At- torneys General in which a President coul d have named acting officials. The Presi- dent did so only three times. Twice, th e President named a Senate-confirmed Secre- tary from another Department (as there were no such officials who were subordinate to the Attorney General himself). 22

27 There is only one example of a non-confirmed person serving as ad interim General James Speed (a Lincoln holdover Attorney General, ever. In 1866, Attorney ’s best friends) left office. He wasn’t under President Johnson, and one of Lincoln forced out. Instead, he resigned as a matter of conscience, to protest Johnson’s veto of the first federal legislation to protect African Americans, the Civil Rights Act of 1866. Congress overrode the veto, passing the law. The country badly needed an Attorney General to enforce it. The President appointed the second-in-command — Assistant Attorney General J. Hubley Asht on — for a grand total of six days, probably while the new nominee, Henry Stanbery, tra veled to Washington. Ashton was no slouch: he was the first person confi rmed when Congress in 1868 created a Senate- confirmed subordinate to the Attorney General. Three members of this Court served as honorary pallbearers at his funeral. None of the historical examples cited by the Government — with respect to Cabinet officials generally or the Attorney General specifically — remotely approach the circumstances of Mr. Whitaker’s appoin tment. None of them involve the Presi- dent creating the vacancy and thus the need for the appointment, much less creating it after months of advance planning. Non e involve an indeterminate and open-ended appointment to fill a vacancy. None involv e the selection of a non-confirmed successor over a Senate-confirmed official within th e agency, or even ov er the second-in-com- mand who was knowledgeable and ready to se rve. Put simply, none of them involve an attempt to evade the constitutional requirement that a principal officer be con- firmed by the Senate. 23

28 In sum, there is no basis in precedent or history to depart from the text of ppointments Clause. taker violates the A Article II. The appointment of Mr. Whi B. The appointment of Mr. Whitaker is illegal under the Attorney General Succession Act. This Court can avoid the constitutional question by recognizing that the Pres- ident’s appointment of Mr. Whitaker violated the Attorney General Succession Act. should be construed to preclude the ap- Worst case, the statute is ambiguous and pointment. Before we turn to the argume nts the Government does make, we start with the points that it does no t contest. They are devastating. The Solicitor General does not dispute the wild implausibility of the claim that Congress intended the Vacancies Act to be read as the Government now says. Sup- posedly, Congress acted to permit the Pres ident to install any Senate-confirmed offi- cial — say, the Librarian of Congress — fo r seven months as not just the Attorney General, but the Secretary of Defense, Chai rman of the Joint Chiefs of Staff, or Di- rector of the CIA — skipping over Senate-conf irmed deputies in the process. Also, every GS-15 or above — more than 6,000 la wyers in the Department of Justice, for example — could be put in charge of the agency. That would risk havoc, gut the Sen- ate’s appointments power, and overturn succe ssion rules that have been set forth in ces for over a century. And Congress suppos- statutes specifically tailored to those offi 24

29 edly made that extraordinary change without one whisper, by any member, any- where, ever regarding legislation that we nt through multiple iterations, hearings, 7 floor statements, and reports over a significant period of time. The Government also does not dispute either (1) that Congress enacted the nt depends to address a totally different “exclusivity” provision on which its argume problem, or (2) that the Vacanc her relevant statutes) shows ies Act itself (as well as ot that Congress wouldn’t use such ham-fisted verbiage because it knows perfectly well how to write a clear provision that gives the President an optional appointment amicus power. In fact, as explained by the excellent brief of Morton Rosenberg (who Court has recognized as authoritative), the wrote the Report on the statute that this Government’s reading inverts the purpose of the “exclusivity” provision. Congress reject the Office of Legal Counsel’s position that the Presi- specifically adopted it to dent could make appointments under eithe r the Vacancies Act or the Department’s organic statute. See Rosenberg Amicus Br. 5-12. The Government’s unstated but unavoidable position is thus that Congress dangerously upended existing law to give the President this extraordinary power, by 7 The Government quotes one sentence in one Senate Report regarding one Senate bill. Mem. 18. That bill was not adopted. Bu t in any event, that sentence could not have meant that Congress intended that bill to make the Vacancies Act optional. The Report said the exact opposite, in terms: that the bill “retains” all the agency-specific appointment statutes, including specifically the Attorney General Succession Act. S. Rep. No. 105-250, at 17 (1998); see also id. at 2 (“The bill applies to all vacancies . . . with a few exceptions . . . [including ] statutes that themselves stipulate who shall serve in a specific office in an acting capacity.”). Most important, the Government omits that the Report says that, under that bill: “With respect to a vacancy in the office of Attorney Ge neral, 28 U.S.C. § 508 will remain applicable. That section ensures that Sena te confirmed Justice Department officials will be the only persons eligible to serve as Acting Attorney General.” See generally Rosenberg Amicus Br. 15- 16. 25

30 mistake. Particularly given the principle of constitutional avoidance, it would take nclude it was required to reach that re- especially clear language for the Court to co sult. But even if the Government’s reading is possible, it is no t the better one; cer- tainly, it is not clearly right. The Attorney General Succession Act dictates that the Deputy Attorney Gen- eral succeeds the Attorney General, and that other Senate-confirmed officials in the Department succeed the Deputy. 28 U.S.C. § 508(a), (b). The Government agrees: es’” the Acting Attorney General. Mem. 15. “Section 508(a) is a statute that ‘designat But it then tries to sow some doubt by glancing in the direction of two provi- sions. Neither of those could make the A ttorney General Succession Act optional. Both were already in the statute before th e separate 1998 legislation, at a time that even the Government admits it was mand atory. Congress didn’t somehow change the meaning of those provisions by failing to amend the Attorney General Succession Act to delete them. as Acting Attorney General, whereas One says that the Deputy “may” serve the other officials “shall” if the Deputy does not. Mem. 15. That merely reflects the prospect that the Deputy may be unavailab le. At most, it means the Deputy has a choice. The Government somehow reads th e language as if it says that the statute itself “may apply.” But it doesn’t say an ything like that. Among other things, the succession of other officials — wh o “shall” serve — is mandatory. The Attorney General Succession Act also designates the Deputy as the “first ss inserted that provision when both of assistant” under the Vacancies Act. Congre 26

31 the statutes were recodified together and they both produced the same result. Con- elete it. The critical point is that this clause incorporated gress simply failed to d never the Vacancies Act. The Government doesn’t argue otherwise. If it did, then appoint- ments under the Attorney General Succession Act would have always been subject to the Vacancies Act’s restrictions, including its time limits. It has never been under- stood that way. So the Attorney General Succession Act makes Mr. Rosenstein the Acting At- Vacancies Act changes that result. When torney General unless a provision of the Congress adopted the 1998 Vacancies Act, the White House Counsel issued a memo- randum to the entire executive branch interpreting the statute, concluding that its provisions do not apply to the Attorney Ge neral. Memorandum for the Heads of Fed- eral Executive Departments and Agencies and Units of the Executive Office of the President, from Alberto Gonzales, Counsel to the President, Re: Agency Reporting Requirements Under the Vacancies Reform Act 2 (Mar. 21, 2001). Times have obvi- ously changed, even if the statute has not. The arguments the Government now makes are not persuasive. First, the Vacancies Act provides that it is “exclusive . . . unless . . . a statutory provision expressly . . . designates an office r or employee to perform the functions and duties of a specified office temporarily in an acting capacity.” 5 U.S.C. § 3347. The better reading of that provision is that it gives way to the specific statute, which “ des- ignates ” the official. Manifestly, it does not a ffirmatively say that in such a case “the Vacancies Act is non-exclusive.” 27

32 At most, the word “unless” could be stre tched so that, when there is a specific designation statute, the entire exclusivity clause does not apply. But the result is the same. Then the two statutes conflict because they produce two different appointees, and the more specific one controls. That is obviously the Attorney General Succession Act. In any event, even if the two statutes are non-exclusive, you would not recon- cile them as the Government supposes. The two would work togeth er differently. The Attorney General Succession Act would de nate-confirmed succes- signate specific, Se sors. But if those officers were not ava ilable, the President would have appointment authority under the Vacancies Act. That can happen during presidential transitions, for example. As the Motion explained, and the Government ignores, the President has issued an executive order that reconciles the statutes in exactly that way. Mot. 12-13 n.2. ies Act “shall not apply” to a class of Second, a provision states that the Vacanc offices. 5 U.S.C. § 3349c; see Mem. 16. But nothing says th at list is exclusive or is intended to override other statutes, impliedly repealing more than three dozen pro- visions of the U.S. Code. Nor does it suggest that reading, because all of the offices are of a very specific kind not addresse d elsewhere — members of multimember bod- ies for which there are no succession rules. 5 U.S.C. § 3349c (excluding, inter alia , a body “composed of multiple members” and “ any commissioner of the Federal Energy Regulatory Commission”). It is perfectly understandable that Congress adopted a pro- vision to address them, because those bodies can continue to function without acting 28

33 appointments. And the Government does not even believe the negative inference its reading would create: that the Vacancies Act “shall” apply to every office not specified, hat would make the Vacancies Act non -optional. including the Attorney General. T cancies Act’s drafting history. The At- Third, the Government points to the Va torney General was expressly exempted from the prior version of the Act and a draft The reason is obvious: Congress in- bill, but not the final 1998 statute. Mem. 19-20. all of the roughly 40 statutes stead replaced it with a broader, general exception for that “designate[] an officer or employee to perform the functions and duties of a spec- ified office.” 5 U.S.C. § 3347(a)(1). The Atto rney General-specific provision would have 8 been meaningless and would only have generated confusion. For those reasons, the President’s appointment of Mr. Whitaker violated the Attorney General Succession Act. At the very least, the statute is ambiguous and should be construed to bar the appointment in light of the grave doubts about the appointment’s constitutionality under the Appointments Clause. CONCLUSION The Motion to Substitute should be granted. 8 The Rosenberg amicus brief (at 17-19) addresses the Government’s misplaced reliance on Hooks v. Kitsap Tenant Support Services, Inc. , 816 F.3d 550 (9th Cir. 2016), and English v. Trump , 279 F. Supp. 3d 307 (D.D.C. 2018). 29

34 Respectfully submitted, Michael E. Zapin Thomas C. Goldstein Counsel of Record Tejinder Singh 20283 State Rd. 7 Charles H. Davis Suite 400 Daniel H. Woofter Boca Raton, FL 33498 Erica Oleszczuk Evans (561) 367-1444 , OLDSTEIN & R USSELL P.C. G [email protected] 7475 Wisconsin Ave. Suite 850 Bethesda, MD 20814 (202) 362-0636 [email protected] November 28, 2018 30

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