For the past month, I’ve been wondering how we got to the point that Matthew Whitaker, not nominated let alone confirmed for any position in this administration, could be serving as the acting attorney general of the United States. Here’s what I’ve found: buzzfeednews.com/article/chrisg… 
"The fight over the legality of Donald Trump’s appointment of Acting Attorney General Matthew Whitaker began with the death of J. Edgar Hoover nearly five decades ago." buzzfeednews.com/article/chrisg…
From Nixon to Reagan to Clinton to Trump, there have been big moments of big standoffs between Congress and the president on the issue of "acting" appointments. More often than not, they involved Robert Byrd (and William Proxmire) buzzfeednews.com/article/chrisg…
Meet L. Patrick Gray, the acting FBI director after Hoover died. Learn how Nixon's acting appointment of him started this mess: buzzfeednews.com/article/chrisg…
Then, Watergate happened, and Gray — a Nixon loyalist — remained as acting FBI director, with no nominee (him or anyone else) submitted to Congress. Members of Congress began to push back. buzzfeednews.com/article/chrisg… / Here's Sen. Proxmire:
Thus began a fight between the Justice Department (representing the executive branch) and the comptroller general (representing the legislative branch) that has rippled over time to today. buzzfeednews.com/article/chrisg…
So, the fight starts with the Appointments Clause, which affects how officers serve in government. The tl;dr is that "so-called principal officers must receive Senate confirmation, while inferior officers may not require it, if Congress permits." buzzfeednews.com/article/chrisg…
Congress had passed the Vacancies Act to deal w vacancies. It allowed first assistants to take over or for the president to name acting officers from among other Senate-confirmed folks. They could serve for 30 days. ... But that wasn't good enough for DOJ. buzzfeednews.com/article/chrisg…
DOJ said its ~general~ statute, setting forth the broad authority of the AG, allowed him to name acting officers — with no time restriction. Effectively, an end-run around the Vacancies Act. Later, that logic was expanded to many dept's similar statutes. buzzfeednews.com/article/chrisg…
Congress and the comptroller general were like, "No, we don't think that's right!" But it continued. By the '80s, they basically acknowledged that presidents were pretty much ignoring the Vacancies Act restrictions. (Enter Proxmire again, btw.) buzzfeednews.com/article/chrisg…
In 1988, Congress tried to fix things, amending the Vacancies Act to give acting officials 120 days instead of 30 and making the case that the general statutes shouldn't apply. buzzfeednews.com/article/chrisg…
A Justice Department lawyer was like, "Nice try. We're still going to say the general statutes apply, so we can ignore the Vacancies Act time limits." His name: William P. Barr, Trump's nominee to be the next AG. buzzfeednews.com/article/chrisg…
So, the never-ending acting appointments continued. ... Until Bill Clinton and Janet Reno decided to stick with Clinton's pick to run DOJ's Civil Rights Division, Bill Lann Lee, in 1997. buzzfeednews.com/article/chrisg…
All hell broke loose, and Republicans in Congress — joined by Robert Byrd — decided enough was enough. It was time for real legislation that OLC couldn't get around. buzzfeednews.com/article/chrisg…
The White House, working with allies on the Hill, were preparing their opposition. The bill “too narrowly limit[ed] who can serve in an ‘acting’ capacity" — to just first assistants and other Senate-confirmed individuals — so more flexibility was needed. buzzfeednews.com/article/chrisg…
The Federal Vacancies Reform Act failed to achieve cloture, but Sen. Byrd was on the conference committee for an omnibus appropriations bill and got the FVRA into that bill—with changes, suggested by Dems, that helped alleviate the White House's concerns. buzzfeednews.com/article/chrisg…
Within days, Congress would approve the conferences appropriations bill and President Clinton would sign it — and the FVRA with it — into law. buzzfeednews.com/article/chrisg…
That didn't end things — how could it?! Lower-profile skirmishes (as in, they didn't lead to big legislative changes) have continued in the George W. Bush, Obama, and Trump administrations. buzzfeednews.com/article/chrisg…
But it was in a challenge in the Obama administration where Justice Thomas weighed in, suggesting a big part of the FVRA might be unconstitutional. Are "acting officers," when they're filling in for principal officers, principal officers themselves? buzzfeednews.com/article/chrisg…
Thomas's argument: If they are principal officers — and he thinks they are — then they have to be Senate-confirmed under the Appointments Clause. Period. No law can override the Constitution. ... BUT, that issue was avoided in that case, so we moved on. buzzfeednews.com/article/chrisg…
Until Whitaker's appointment — a non-Senate-confirmed person being named acting attorney general, clearly a position that normally is a "principal officer." buzzfeednews.com/article/chrisg…
IN SUM: "Matthew Whitaker's Appointment As Acting Attorney General Has A History. Here It Is." buzzfeednews.com/article/chrisg…
