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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 calls for thorough Lincoln Project probe: 'The lying has to stop' Claudia Conway advances on 'American Idol,' parents Kellyanne, George appear The swift death of the media darlings known as the Lincoln Project MORE, has co-authored an op-ed calling President TrumpDonald TrumpTrump State Department appointee arrested in connection with Capitol riot Intelligence community investigating links between lawmakers, Capitol rioters Michelle Obama slams 'partisan actions' to 'curtail access to ballot box' MORE’s move to replace ex-Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsTanden withdraws nomination as Biden budget chief Manchin flexes muscle in 50-50 Senate Udalls: Haaland criticism motivated 'by something other than her record' 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.