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

George Conway, husband of White House counselor Kellyanne ConwayKellyanne Elizabeth ConwaySantorum: Trump should 'send emails to a therapist' instead of tweeting Conway says reading accused mosque shooter's manifesto 'in its entirety' will show he wasn't inspired by Trump Kellyanne Conway says she doesn't share husband's concerns on Trump's mental fitness MORE, has co-authored an op-ed calling President TrumpDonald John TrumpWarren: 'White supremacists pose a threat to the United States like any other terrorist group' National Enquirer paid 0,000 for Bezos texts: report Santorum: Trump should 'send emails to a therapist' instead of tweeting MORE’s move to replace ex-Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsJuan Williams: Don't rule out impeaching Trump O'Rourke on impeachment: 2020 vote may be best way to 'resolve' Trump House Judiciary Dem, Republican clash over details of Whitaker testimony 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.