A thread about new Acting AG Matt Whitaker, from the law of his appointment to ethics questions to football to his twitter likes. 1/
Whitaker can serve for a long time -- at least 210 days, pursuant to the Vacancies Reform Act, 5 U.S.C 3346. 2/
Whitaker could actually serve much longer -- if Trump has nominated someone else to be AG and that nomination is still pending on day 210, he can stay on. If the nomination fails, he gets another 210 days. And if a *second* nomination fails, he gets *another* 210 days! 3/
He can't, however, be the acting AG and the nominee at the same time, which may be one of the reasons that his name hasn't been mentioned as a possible nominee. 4/
Sessions could have thwarted Trump's plan by firing Whitaker, who is eligible only because he's a senior DOJ official who has been there for 90 days. 5 U.S.C. 3345(a)(3). 5/
If Whitaker was out of a job -- or even if he was given a new non-Senate-confirmed administration job outside of DOJ -- he wouldn't be eligible. In that case, he could have kept Sessions, replaced him with Rosenstein, or installed someone else who was eligible. 6/
Alternatively, Sessions could have refused to resign, which might have been a problem because it's not clear whether the VRA can be used to replace someone who was fired. 7/
Trump might not have wanted to risk it, because any action taken by someone appointing in violation of the VRA "shall have no force or effect." 5 U.S.C. 3348(d). 8/
Sessions didn't do anything to make it harder for Trump to ease him out or to install Whitaker. Perhaps he's fine with Whitaker, or he simply DGAF anymore, or maybe he's just not a competent bureaucratic knife-fighter. 9/
Some have suggested that Sessions actually was fired, for purposes of the VRA. But people resign under pressure all the time, and if he and Trump both say he resigned -- even if he was asked to do so -- I don't believe a court would rule otherwise. 10/
There's a complicated argument that VRA is unconstitutional to the extent that it allows a non-Senate-confirmed official to serve as Acting AG. For more on that (and much else), see this by the invaluable @marty_lederman. 11/
Many people are saying (yikes that's Trump's phrase) that Whitaker should recuse because he's tight with Sam Clovis or because he's been *very* critical of the Mueller investigation . See, e.g., this piece by my former DOJ colleague John Bies: 12/ lawfareblog.com/matthew-whitak…
There's also a more fundamental ethics question -- shouldn't *anyone* Trump installs, especially without Senate confirmation, be recused from overseeing an investigation into him? See @Delavegalaw on this, back when we feared Scott Pruitt as acting AG. 13/
On Twitter, he's @MattWhitaker46. Does the 46 mean he intends to succeed Trump after succeeding Sessions? He's liked 922 tweets, mostly about football, but a good chunk about other stuff. 14/
After Charlottesville, Whitaker liked a tweet from @AshaRangappa passing along a cartoon of the White House in a KKK hood. (Caveat: he and Asha were fellow CNN contributors and he liked a lot of her tweets.) 15/
Whitaker also liked this tweet from @MikeSacksEsq, which isn't the sort of thing the GOP usually says out loud. 16/
Somewhat alarmingly, Whitaker tweeted an August 2017 article I wrote for @POLITICOMag in which I concluded that "it’s quite likely Trump can install an attorney general who is able and willing to fire Mueller." (h/t @Scott_H_Rome) 17/
Finally, Whitaker becomes (I assume) the first AG ever to have played in the Rose Bowl (Iowa, 1991). But he's nowhere near the best football player to serve as a top DOJ official. 18/
Byron White, who was Deputy AG under JFK (and would later join SCOTUS) was the Heisman Trophy runnerup in 1937 and took a leave from Yale Law School to play in the NFL where he led the league in rushing in 1940 and 1941. I'll end here -- it's better than the alternatives. 19/END
