Conway's husband in op-ed: Trump's appointment of Sessions replacement 'unconstitutional'

George Conway, husband of White House counselor Kellyanne ConwayKellyanne Elizabeth ConwayGeorge Conway forms group to encourage conservative lawyers to 'speak out' against Trump Trump’s new strategy: Chummer-in-Chief Kellyanne Conway responds to idea of Clinton 2020 campaign MORE, has co-authored an op-ed calling President TrumpDonald John TrumpMeet the lawyer Democrats call when it's recount time Avenatti denies domestic violence allegations: 'I have never struck a woman' Trump names handbag designer as ambassador to South Africa MORE’s move to replace ex-Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsCongress is going to make marijuana moves Trump throws support behind criminal justice bill Bill to protect Mueller blocked in Senate MORE “unconstitutional.”

The piece, published Thursday in the New York Times, asserts that Trump’s decision to appoint Matthew Whitaker as acting attorney general is in violation of the Appointments Clause of the Constitution, which stipulates that principal officers must be confirmed by the Senate.

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“President Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional,” wrote Conway, along with lawyer Neal Katyal. “It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.”

Trump announced Wednesday that Whitaker, Sessions’s chief of staff, would take over for the attorney general. Sessions submitted a letter of resignation Wednesday at Trump’s request.

Whitaker’s appointment has raised eyebrows due to his past criticism of the Russia investigation. Whitaker will oversee the special counsel probe, despite calls for him to recuse himself, as Sessions did.

Conway and Katyal’s op-ed cites a Supreme Court decision that ruled the appointment of a lawyer at the National Labor Relations Board invalid because he had not been confirmed by the Senate. Though that ruling was based on a statute, Supreme Court Justice Clarence Thomas also pointed to the Appointments Clause in a separate writing.

“What goes for a mere lawyer at the [National Labor Relations Board] goes in spades for the attorney general of the United States, the head of the Justice Department and one of the most important people in the federal government,” Conway and Katyal write.

The op-ed suggests that Trump should have appointed a previously confirmed official to serve as acting attorney general.

“For the president to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document,” they write.

Conway is a frequent critic of Trump and has paired up with Katyal in the past to question the constitutionality of Trump’s actions.