DOJ justifies appointment of unconfirmed AG by citing 1866 case that almost resulted in a president's impeachment

President Andrew Johnson appointed Henry Stanberry to attorney general without Senate approval, which was actually a major factor in his impeachment.

Matthew Whitaker (Image via screengrab)

The appointment of the unvetted, unconfirmed, and thoroughly unhinged Matthew Whitaker as acting attorney general has been declared unconstitutional by pretty much everyone who bothered to weigh in. Because it is. Except now it’s not. Because the Department of Justice has weighed in to say everything is cool. And to prove it they’ve cited an indictment that roiled the country and came close to destroying the government.

As reported by Buzzfeed, the DOJ’s Office of Legal Counsel had already told Donald Trump that he could appoint anyone he pleased, even someone who had not been confirmed by the Senate. The memo cites more than 160 examples of people being appointed to “acting” roles without Senate confirmation so … case closed. Only not so much, because the cases cited are not those of principle officers, or are short-term appointments made during a Senate recess. Neither of which applies in this case. It’s also not clear that any of those other appointments took place in conditions where a Senate-confirmed official was next in line and was bypassed in order to drop in a hand-picked, non-confirmed underling.

Actually, the only example in the memo that seemed applicable was one that went back a bit. Then a bit more. Then a whole lot more. To a point where the nation was on the brink of renewing the Civil War.

The official also noted that there was an acting attorney general appointed by President Andrew Johnson in 1866 who had not previously been confirmed by the Senate.

Johnson’s appointment would be Henry Stanbery—the man who defended Johnson at his impeachment trial. Johnson appointed Stanberry to attorney general without Senate approval. Which was actually a major factor in his impeachment. After surviving impeachment by a single vote, Johnson reappointed Stanberry to be AG as a way of delivering a final groin kick to his opponents in the Senate. He then put Stanberry up for the Supreme Court. Rather than watch Johnson bypass them again, the Senate moved to reduce the number of seats on the Supreme Court to keep Stanberry out. 

A near impeachment. A revolt in the Senate. Three Supreme Court seats sliced away. And that is the incident that Trump’s DOJ is citing to explain why it’s okay to make Matt Whitaker acting AG.

So … it’s all good now.

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Mark Sumner is the author of the nonfiction work "The Evolution of Everything" as well as several novels including "Devil's Tower."