'f J. ...... !• ~· .' ' l I ' .l . . !' UNITED STATES :- 1 • i FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, D.C. ~J!8 DEC 11 Mi II: 31 1: • • ' In re Appointment of Thomas C. Goldstein as Amicus Curiae Pursuant to 50 U.S.C. § l 803(i)(2)(B) MOTION OF THOMAS C. GOLDSTEIN FOR APPOINTMENT AS AMICUS CURIAE AND FOR LEAVE TO FILE AMICUS CURIAE BRIEF Thomas C. Goldstein Goldstein & Russell, P .C. 7475 Wisconsin Ave. Suite 850 Bethesda, MD 20814 (202) 362-0636 (Telephone) (800) 574-2033 (Fax) tgoldstein@goldsteinrussell.com December 7, 2018 . ~ '· ~- ~ ...... - ! - i • - \ Pursuant to 50 U.S.C. § l 803(i)(2)(B) and Foreign Intelligence Surveillance Court Rules of Procedure 6(d) and 7, Thomas C. Goldstein respectfully moves this Court to appoint him as amicus curiae to assist the Court in deciding whether the President's appointment of Matthew G. Whitaker as Acting Attorney General violates governing statutes and the U.S. Constitution. To ensure that the participation of amicus curiae would not delay any proceedings before the Court, attached to this motion is a proposed brief, together with a recent opinion of the Office of Legal Counsel and a brief filed by the Office of the Solicitor General expressing the contrary view. Also attached are certifications required by Rules 7 and 63 of the Court's Rules of Procedure. The Court is most likely aware of both the controversy over the lawfulness of Mr. Whitaker's appointment and the statutory authority of the Attorney General to certify applications to this Court under the Foreign Intelligence Surveillance Act of 1978 (FISA), codified as amended at 50 U.S.C. §§ 1801-1885c. That authority has especially fraught implications if Mr. Whitaker's appointment is unlawful. See David Kris, Whitaker's Appointment and Broader Risks at the Justice Department, Lawfareblog, https://tinyurl.com/y9hjqagq (Nov. 17, 2018). Amicus has not sought leave to participate with respect to a particular pending application, because the applications generally are secret. The Court may choose to address this question in the context of a FISA application already signed by Mr. Whitaker and appoint amicus to participate at that stage. But even if Mr. Whitaker has not personally authorized a FISA application, the issue remains significant for this Court. The Attorney General retains ultimate authority regarding the submission ofFISA applications. 50 U.S.C. § 1804. He not only may authorize an application, but also may refuse to authorize it. That is particularly relevant at a time when the Department of Justice is pursuing an investigation of whether the President or his campaign colluded with a foreign power. That investigation has involved the use of at least one FISA warrant. This question deserves the Court's urgent attention. There are grave doubts about Mr. Whitaker's appointment that could have significant implications for the Court's work, including with respect to unwinding official actions ifthe appointment is later invalidated. In particular, actions taken by an appointee named in violation of the Appointments Clause are not protected from later challenge by the de facto officer doctrine. See Nguyen v. United States, 539 U.S. 69, 77 (2003); Ryder v. United States, 515 U.S. 177, 182 (1995). As an Article III court, the Foreign Intelligence Surveillance Court (FISC) is imbued with the inherent authority "to protect the integrity of [its] proceedings." Giles v. California, 554 U.S. 353, 374 (2008); Davis v. Washington, 547 U.S. 813, 834 (2006); see United States v. Cavanagh, 807 F.2d 787, 791-92 (9th Cir. 1987). The Court's authorizing statute, the Foreign Intelligence Surveillance Act of 1978 2 (FISA), codified as amended at 50 U.S.C. §§ 1801-1885c, also recognizes ''the inherent authority of the court ... to determine or enforce compliance with an order or a rule" of the Court. 50 U.S.C. § 1803(h). Under the Court's Rules, moreover, FISC judges "may exercise the authority vested by the Act and such other authority as is consistent with Article ID of the Constitution and other statutes and laws of the United States, to the extent not inconsistent with the Act." FISA Ct. R. 5(a). And though the Court is one of specialized jurisdiction, "specialization says nothing about the inherent powers of lower federal courts qua Article III bodies." Brief of Amie us Curiae at 2, In re Opinions & Orders of This Court Addressing Bulk Co/leetion ofData Under the FISA, FISC Docket No. Misc. 13-08 (June 13, 2018) (citing United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812) ("Certain implied powers ... necessarily result to our Courts of justice from the nature of their institution/' powers "which cannot be dispensed with in a Court, because they are necessary to the exercise of all others."). Thus, it is within this Court's authority to protect its proceedings by ensuring that the correct Acting Attorney General appear and authorize actions before it. The relief urged by amicus curiae should not disrupt the work of this Court or strip it of its very important role in the administration of national security. Indeed, what amicus curiae is proposing does quite the opposite-it insulates from later collateral attack the important and sensitive work of the Executive and this Court. If 3 Mr. Whitaker's appointment is invalidated, Deputy Attorney General Rod J. Rosenstein remains an eligible official to approve PISA applications. See 50 U.S.C. §§ 1801(g), 1804. The Assistant Attorney General for the National Security Divi- sion, if appropriately designated, may also approve PISA applications. See id. And even if this Court determines that the President in fact validly appointed Mr. Whitaker as Acting Attorney General, that ruling would only benefit the administration of justice by seeking to remove the cloud of uncertainty over the appointment as soon as possible. For the foregoing reasons, Thomas C. Goldstein respectfully requests that the Court appoint him as amicus curiae to assist the Court in deciding the legality of the President's appointment of Matthew G. Whitaker as Acting Attorney General, grant leave to file the attached brief, and order any other relief as appropriate. Respectfully submitted, Thomas C. Goldstein Goldstein & Russell, P.C. 7475 Wisconsin Ave. Suite 850 Bethesda, :MD 20814 (202) 362-0636 (Telephone) (800) 574-2033 (Fax) tgoldstein@goldsteinrussell.com December 7, 2018 4 UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, D.C. In re Appointment of Thomas C. Goldstein as Amicus Curiae Pursuant to 50 U.S.C. § 1803(i)(2)(B) CERTIFICATION OF BAR MEMBERSHIP AND SECURITY CLEARANCE STATUS Pursuant to Foreign Intelligence Surveillance Court Rules of Procedure 7(h)(l), 7(i), and 63, Amicus Curiae Thomas C. Goldstein respectfully submits the following information: Thomas C. Goldstein is a member, in good standing, of the following federal courts: the Supreme Court of the United States; the United States Courts of Appeals for the First, Second, Third, Fourth, Sixth, Ninth, Eleventh, Federal, and District of Columbia Circuits; and the United States District Courts for the District of Columbia, and the District of Maryland. He is licensed to practice law by the bars of the District of Columbia and the State of Maryland. Thomas C. Goldstein does not currently hold a security clearance. Amicus respectfully submits that he may participate in proceedings related to this matter without access to classified information or a security clearance. The motion and brief do not contain classified information, and as the enclosed brief makes clear, this is not a question where access to classified information is "necessary to participate." 50 U.S.C. § 1803(i)(3)(B); see Foreign Intelligence Surveillance Court Rule of Procedure 63 (requiring counsel only to have "the appropriate security clearance"). Respectfully submitted, Thomas C. Goldstein Goldstein & Russell, P.C. 74 7 5 Wisconsin Ave. Suite 850 Bethesda, MD 20814 (202) 362-0636 (Telephone) (800) 574-2033 (Fax) tgoldstein@goldsteinrussell.com December 7, 2018 2 CERTIFICATE OF FILING AND SERVICE I certify that on December 7, 2018, the foregoing motion, including attached certification, proposed brief, and exhibits thereto, were submitted as described below. Pursuant to Foreign Intelligence Surveillance Court Rules of Procedure 7(a), 7(k), and 8(a), the undersigned received instructions from both the Clerk of the Foreign Intelligence Surveillance Court and the Security and Emergency Planning Staff, U.S. Department of Justice to effect filing in this manner. Hand delivered by courier to: Litigation Security Group U.S. Department of Justice 145 N Street, N .E. Suite 2W-115 Washington, DC 20002 Courtesy service by FedEx overnight delivery to: Matthew G. Whitaker Acting Attorney General Office of the Attorney General U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, DC 20530 John C. Demers Assistant Attorney General for National Security U.S. Department of Justice National Security Division 950 Pennsylvania Avenue, N.W. Washington, DC 20530 Thomas C. Goldstein Goldstein & Russell, P.C. 7475 Wisconsin Ave. Suite 850 Bethesda, MD 20814 (202) 362-0636 (Telephone) (800) 574-2033 (Fax) tgoldstein@goldsteinrussell.com December 7, 2018 UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT WASHINGTON, D.C. In re Appointment of Thomas C. Goldstein as Amicus Curiae Pursuant to 50 U.S.C. § l 803(i)(2)(B) BRIEF OF AM/CVS CURIAE THOMAS C. GOLDSTEIN Thomas C. Goldstein Goldstein & Russell, P.C. 7475 Wisconsin Ave. Suite 850 Bethesda, MD 20814 (202) 362-0636 (Telephone) (800) 574-2033 (Fax) tgoldstein@goldsteinrussell.com December 7, 2018 TABLE OF CONTENTS BRJEF OF AMJCUS CURIAE THOMAS C. GOLDSTEIN ..................................... 1 IDENTITY AND INTEREST OF AMICUS CURIAE .............................................. 1 BACKGROUND ....................................................................................................... 2 SUMMARY OF THE ARGUMENT ........................................................................ 3 ARGUMENT ............................................................................................................. 4 I. MATTHEW WHITAKER 'S APPOINTMENT VIOLATES THE APPOINTMENTS CLAUSE ............................................................................................................. 4 II. MATTHEW WHITAKER 'S APPOINTMENT VIOLATED THE ATTORNEY GENERAL SUCCESSION ACT ............................................................................ 10 CONCLUSION ........................................................................................................ 19 BRIEF OF AMICUS CURIAE THOMAS C. GOLDSTEIN Thomas C. Goldstein respectfully submits this brief to urge the Court to hold that the President's appointment of Matthew G. Whitaker as Acting Attorney General violates the U.S. Constitution and governing statutes, and that only Deputy Attorney General Rod J. Rosenstein can participate in proceedings before this Court as the Acting Attorney General. IDENTITY AND INTEREST OF AMICUS CURIAE Thomas C. Goldstein is a founding partner of the law firm Goldstein & Russell, P.C. He has served as counsel to parties in well over 100 merits cases at the Supreme Court, personally arguing 42. In addition to practicing law, Goldstein teaches Supreme Court litigation at Harvard Law School and previously taught the same subject at Stanford Law School. Goldstein is also the co-founder and publisher of SCOTUSblog. Proposed amicus curiae submits this brief in the public interest, as a friend of the Court and not on behalf of any party. He is not being compensated for this work and is not working in coordination with any other person or organization. He has no information indicating and no reason to believe that any of his firm's clients have an interest in any proceeding before this Court. BACKGROUND The Constitution's Appointments Clause provides that "Officers of the United States" may serve only "by and with the Advice and Consent of the Senate." U.S. Const. art. II, § 2, cl. 2. This requirement applies to "principal officers." Edmond v. United States, 520 U.S. 651, 660-63 (1997). The Attorney General, who reports only to the President and is in charge of federal law enforcement, is a paradigmatic principal officer. In 2017, the Senate confirmed Jeff Sessions as Attorney General. For months, the President criticized Mr. Sessions for recusing from the Department of Justice's investigation into whether the President and his campaign colluded with Russia and obstructed justice. E.g., Devlin Barrett, John Wagner & Seung Min Kim, Trump and Sessions Feud Over the Direction of the Justice Department, Wash. Post (Aug. 23, 2018), https://wapo.st/2RHxLWC. It was widely reported that the President would force out Mr. Sessions promptly after the 2018 midterm elections. E.g. Alexandra Hutzler, Donald Trump Will Fire JeffSessions After Midterms, Republicans Say, Newsweek (Aug. 24, 2018), http://bit.ly/2rrHQLM. He did. The Attorney General Succession Act provides that other Senate-confirmed officials in the Department will serve if the Attorney General is unavailable. 28 U.S.C. § 508. The Deputy Attorney General may serve; if the Deputy is unavailable, other officials shall do so. Id. If those officials are all unavailable, an Executive 2 Order issued under the Vacancies Reform Act specifies other Senate-confirmed officials who will serve as Acting Attorney General. Exec. Order No. 13787 (Mar. 31, 2017), available at http://bit.ly/2BVYNnw. The Deputy Attorney General is Rod Rosenstein. Due to Mr. Sessions' recusal, Mr. Rosenstein had supervised the Russia investigation. The President has criticized Mr. Rosenstein for not limiting that inquiry. See Kevin Johnson & Maureen Groppe, Sessions Ouster Fuels Fear Trump is Trying to Impede Robert Mueller's Probe, USA Today (Nov. 7, 2018), http://bit.ly/2UpVw7a When the President forced out Mr. Sessions, Mr. Rosenstein was available to serve as Acting Attorney General. But the President instead chose Matthew Whitaker. Mr. Whitaker was then serving as the Attorney General's Chief of Staff, a non-confirmed position. Previously, Mr. Whitaker was best known for publicly arguing that the Russia investigation should be narrowed or closed. See, e.g., Matthew Whitaker, Mueller's Investigation of Trump is Going Too Far, CNN Opinion (Originally Published Aug. 6. 2017), https://cnn.it/2QEa9ol. SUMMARY OF THE ARGUMENT The President's appointment of Matthew Whitaker as Acting Attorney General violates the Appointments Clause. Mr. Whitaker is exercising all the powers of the Attorney General, but has not been confirmed. The Supreme Court has held that a non-confirmed official may exercise the authority of a principal officer only in 3 response to temporary and special circumstances. Both the first Vacancies Act and the early history of temporary appointments reflect those limitations. Without them, the Appointments Clause is essentially meaningless, because otherwise the President could remove any principal officer and appoint a non-confirmed successor. That is what happened here. The President did not appoint Mr. Whitaker in response to any temporary and special circumstance. Instead, the President planned in advance to remove Mr. Sessions and then refused to allow the other Senate-confirmed officials designated by Congress to serve as Acting Attorney General. The appointment was accordingly unconstitutional. The Court can avoid the constitutional question by holding that the President's appointment of Mr. Whitaker violated the Attorney General Succession Act. The Government concedes that, as enacted, that statute would make the Deputy Attorney General the Acting Attorney General. There is no merit to the Government's argument that Congress changed that result by enacting the Vacancies Reform Act. ARGUMENT I. MATTHEW WHITAKER'S APPOINTMENT VIOLATES THE APPOINTMENTS CLAUSE. The Constitution requires that the Senate confirm a principal officer. The Supreme Court held in United States v. Eaton, 169 U.S. 331 (1898), that Congress could create an office that would exercise a principal officer's powers temporarily in response to special circumstances. The Court reasoned that such a position was 4 necessary to maintain the government's unbroken operations. Id. at 339, 343. Further, a stricter rule would make it unconstitutional for a principal officer to delegate responsibilities to a subordinate. Id. at 343-44. In Eaton, the Court upheld the non-confinned position of"vice-consul." The vice-consul exercised the powers of the consul general-a Senate-confinned principal officer--only in the special circumstances that the consul general became sick, left the consulate, or died. Id. at 338-39. The vice-consuPs powers were temporary because they ended when the consul recovered, returned, or was replaced. Id. The facts of Eaton demonstrate the statute in action. The consul-general in Siam-now Thailand-got very sick and left for the United States. Id at 331. The vice-consul stepped in and perfonned the consul-general's responsibilities. Id. at 331-33. Travel to and from the United States in the late-nineteenth century was arduous and lengthy. The vice-consul ultimately served roughly ten months before the consul-general's sick leave expired and he was replaced. Id. Under Eaton, the President's appointment of Mr. Whitaker was unconstitutional. Mr. Whitaker exercises all of the Attorney General's powers. But there are no special circumstances here and the President was not ensuring the uninterrupted operations of the Department of Justice. The President both planned and created the vacancy in the Office of the Attorney General; and the President refused to permit succession by the Deputy Attorney General, who Congress placed in the direct line 5 of succession to fill that vacancy Gust as a vice-consul would temporarily perfonn the functions of the consul general). Rod Rosenstein was not on the other side of the planet in Thailand; he was in the office directly below Mr. Sessions. If their windows opened, they could lean out and talk to each other. Eaton's holding that service by a non-confirmed official must respond to special circumstances is essential. If the appointment of Mr. Whitaker is constitutional, a President can remove and replace any confinned principal officer with a non-confinned individual, at any time. The President's lawyers would only have to intone that the appointment is "temporary." And by that, they mean that the appointee will never be confirmed and the service is limited only by statute. If that is the law, then the Appointments Clause basically means nothing. But the Supreme Court has made clear that the Appointments Clause is essential to the separation of powers. Freytag v. Comm'r, 501 U.S. 868, 882 (1991). In fact, it was tailor made for these circumstances: The President has given someone all the powers of a principal officer, for the President's own personal reasons, who the Senate almost certainly would not confinn. Compare Edmond v. United States, 520 U.S. 651, 659-60 (1997) ("The President's power to select principal officers of the United States was not left unguarded," and "Advice and Consent .... serves both to curb Executive abuses of the appointment power and 'to promote a judicious 6 choice of (persons] for filling the offices of the union."') (quoting The Federalist No. 76, at 386-87, internal citations omitted). According to the Government-which is to say, the Department of Justice under Mr. Whitaker's control-Mr. Whitaker's appointment is supported by history. See generally Memorandum for Emmet T. Flood, Counsel to the President, from Steven A. Engel, Assistant Attorney General, Office of Legal Counsel, Re: Designating an Acting Attorney General (Nov. 14, 2018) (OLC Memorandum), Exhibit D infra. It recognizes that Congress's adoption of the first Vacancies Act-enacted in 1792-best shows the founders' understanding of the Appointments Clause. Id. at 11. But that law permitted the President to name acting officials temporarily only when the officeholder died, or was sick or absent. Act of May 8, 1792, ch. 37, § 8, 1 Stat. 279, 281. It did not allow the President to make an appointment if he removed a department head. The Government also points to the early practices of the Executive Branch. OLC Memorandum at 8-9. But in the most-relevant period, between 1789 and the War of 1812, non-confirmed officials served as principal officers only in temporary and special circumstances. Almost always, the department's second-in-command stepped in temporarily while the Secretary was briefly sick or away. In that time, there were also 21 vacancies in the cabinet and the Office of Postmaster General. See Exhibit A, infra (citing Robert Brent Mosher, Executive 7 Register of the United States: 1789-1902 (1903)). At least two were created when the President forced out the officer. Overwhelmingly, the President either left the position vacant (12 times) or appointed another Senate-confirmed official (8 times). The President temporarily filled the vacancy with a non-confirmed official only one time, at most. That was a special circumstance, too. With only two weeks left in the Jefferson Administration, the Secretary of War (Henry Dearborn) resigned. See Exhibit B at I, infra. The President appointed the department's secondin-command (Chief Clerk John Smith). Id. at 2-3. It would have made no sense for Jefferson to nominate someone who could not be confirmed before Madison took office. It was also difficult for any other confirmed Secretary to step in while the cabinet turned over. And Smith's service was limited by the fact that Madison would pick a permanent nominee. (In fact, the official biographies of both Congress and the Army state that Dearborn actually continued to serve until the Senate confirmed his permanent successor. Id. at 4, 9-10.) The Government therefore has to rely on later appointments. See OLC Memorandum at 9-10. Those would not be evidence of the Appointments Clause's original meaning. But they don't support the Government's position anyway. Even stretching all the way to 1860, outside of appointments authorized by the Recess Appointments Clause, the President temporarily appointed non-confirmed officials a total of 23 times. Exhibit C at 9-11. Each responded to special circumstances: the 8 President's term ended (14 times); the principal officer resigned or died in office (8 times); or the Senate rejected a permanent nominee (once). The President maintained the department's unbroken operations by appointing the second-in-command, except once for 2 days. Also notably, the temporary appointment almost always lasted less than one week. Mr. Whitaker's service is already longer than every example but one. The sole exception arose from special circumstances as well. President Tyler's cabinet resigned to protest his policies. The Senate (controlled by Whigs) strongly resisted the President's nominees, rejecting 7 out of 20 during his presidency. In one instance, it took 43 days to find and confirm an acceptable permanent secretary. The history of the vacancies specifically in the Office of Attorney General is even worse for the Government. Between 1789 and 1860, presidents repeatedly left the Office vacant-once for seven months-rather than attempting to install a nonconfirmed official, just as presidents had in the founding quarter century. In American history, there was only one time that the President ever named a non-confirmed official as Acting Attorney General. That was in 1866. Again, there were special circumstances. Andrew Johnson's Attorney General (James Speed) had resigned in protest of the President's policies. But the country badly needed someone to serve during the ongoing fight over the first civil rights law protecting African Americans. Johnson appointed the second-in-command (Assistant Attorney General J. Hubley 9 Ashton) for six days, apparently while the permanent successor traveled to Washington, D.C. But even those few, limited examples were too much for Congress. In 1868, it enacted a new Vacancies Act. Act of July 23, 1868, ch. 227, 15 Stat. 168. That statute only allowed the President to name Senate-confirmed officials as acting appointees. And it strictly limited their service to ten days. Id. II. MATTHEW WHITAKER'S APPOINTMENT VIOLATED THE ATTORNEY GENERAL SUCCESSION ACT. This Court can avoid the obvious constitutional doubt over the President's appointment of Mr. Whitaker by holding that it violated the Attorney General Suecession Act. 5 U.S.C. 508(a). Zadvydas v. Davis, 533 U.S. 678, 689 (2001) ("it is a cardinal principle" of statutory interpretation that when an interpretation of a statute raises "a serious doubt" as to its constitutionality, "this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided," and adopt that interpretation instead) (quoting Crowell v. Benson, 285 U.S. 22, 62 ( 1932)). The Government believes that the President validly appointed Mr. i Whitaker under the Vacancies Reform Act, which Congress enacted in 1998. OLC Memorandum at 3-6. When that statute applies, an officer's "first assistant" will serve in an acting capacity by default. 5 U.S.C. § 3345(a){l). But the President may i'• I t' t ! •' instead appoint a Senate-confirmed official or established senior employee. Id. 10 § 3345(a)(2)-(3). The acting official's service is generally limited to 210 days. Id. § 3346. The Vacancies Reform Act is "the exclusive means for temporarily authorizing an acting official to perform the functions and duties of [a Senate-confirmed office] ... , unless ... a statutory provision expressly ... design.ates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity." 5 U.S.C. § 3347(a)(I)(B) (emphases added). For essentially the reasons set out in Part I, supra, the Government's reading of the Vacancies Reform Act violates the Appointments Clause, or at the least creates grave constitutional doubt. It permits the President to remove a principal officer and appoint a hand-picked, non-confirmed official for a long period in the absence of any special circumstances. The Government argues that when an office is subject to a specific "designation" statute, the Vacancies Reform Act remains fully applicable, but is merely "non-exclusive." That means, it continues, that the President can choose the appointment authority of the Vacancies Reform Act whenever he wants. OLC Memorandum 4-6. On that view, the President may remove critical principal officers-such as the Attorney General, the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, and the Director of National Intelligence-whenever he or she likes and replace them with non-confirmed employees like Mr. Whitaker rather than the Senate-confirmed officials designated by Congress. Most important, on the 11 Government's reading, the President may do so in the absence of any special circumstances, as Mr. Whitaker's appointment illustrates. The Government's reading therefore renders the Vacancies Refonn Act unconstitutiona1, because it cannot be reconciled with the Supreme Court's decision in Eaton. There are two other readings of the statutory scheme that are more consistent with the text and also constitutional. Under either, Mr. Whitaker's appointment was illegal. First, assume that the Government is right that the Vacancies Refonn Act is "non-exclusive." It does not follow that the President can choose between that statute and the Attorney General Succession Act. Congress elsewhere authorized the President to choose between the general Vacancies Reform Act and a specific designation statute, but not for the Attorney General. 1 So, both statutes would apply. Under ordinary rules of statutory construction, to the extent the two conflict, the more-specific provision governing the particular office controls. See, e.g., RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645-46 (2012). Here, there is a conflict because the two statutes provide irreconcilable rules. Under the Attorney General Succession Act, the Deputy Attorney General "may exercise all the duties of that office," subject to no time limits and automatically succeeded by another Senate-confirmed Department official, and with no authority for 1 See, e.g., 7 U.S.C. §§ 2210-11 (Deputy Secretary of Agriculture). 12 the President to choose someone else. 28 U.S.C. § 508(a), (b). That rule conflicts with the Vacancies Reform Act, under which the Deputy serves for a maximum of 210 days (with no automatic successor), unless the President selects someone else. 5 U.S.C. § 3345(a)(l)-(3). Given the conflict, the Attorney General Succession Act governs. Notably, in other circumstances, there would be no conflict and the Vacancies Reform Act could in fact be "non-exclusive." The officers designated by the Attorney General Succession Act may not be available. That may happen, for example, during the transition between presidential administrations when political appointees resign or are removed. In that circumstance, the Attorney General Succession Act is silent on who will serve as Acting Attorney General. The President could then rely on the authority provided by the Vacancies Reform Act. Indeed, the Executive Order governing succession in the Office of the Attorney General reconciles the two statutes exactly that way. Exec. Order No. 13787 (Mar. 31, 2017), available at http://bit.ly/2BVYNnw. Second, the constitutional violation can be avoided by holding that the Vacancies Reform Act does not apply at all. The statute's "exclusivity" clause is inapplicable whenever a statute "designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity." 13 5 U.S.C. § 3347(a)(l){B) (emphasis added). To "designate" is to "choose (someone or something) for a particular job or purpose." Black's Law Dictionary 541 (10th ed. 2014). Hence, the Vacancies Reform Act itself recognizes that the office-specific statute chooses the successor-in this case, the Deputy Attorney General. Indeed, soon after Congress passed the Vacancies Reform Act, the White House Counsel coneluded that it did not apply to the Attorney General. See Memorandum for the Heads of Federal Executive Departments and Agencies and Units' of the Executive Office of the President, from Alberto Gonzales, Counsel to the President, Re: Agency Re- porting Requirements Under the Vacancies Reform Act 2 (Mar. 21, 2001). That reading is much more consistent with the purpose of the "exclusivity" clause. Congress adopted it to reject the Office of Legal Counsel's position that the President could appoint an official in the Department of Justice under either the predecessor vacancies act or the Department's own organic statute. See generally Morton Rosenberg, Cong. Research Serv., Validity of Designation of Bill Lann Lee as Acting Assistant Attorney General for Civil Rights (Jan. 1998). When the bill was being debated, the Department of Justice insisted that Congress use the word "exelusive" in the statute itself, whereas before it had merely appeared in a congressional report. Oversight of the Implementation of the Vacancies Act: Hearing on S. 1764 Before the S. Comm. on Governmental Affairs, 1OSth Cong. 25, 122, 129 (1998) (1998 Hearing). Thus, the Government's reading of the Vacancies Reform 14 I fF Act would do the opposite of what Congress intended, by allowing the President to use either statute to appoint an acting official. By contrast, the Government's view requires reading the exclusivity clause in an unusual way to render ineffective dozens of statutes that Congress enacted over more than 100 years with the specific purpose to limit the President's unilateral appointment authority. 2 That would mean Congress adopted the Vacancies Reform Act to allow the President to terminate the heads of vital departments (the Attorney General, the Secretary of Defense, the Chairman of the Joint Chiefs of Staff, the Administrator of the Environmental Protection Agency, and so on) and replace them with any of thousands of unqualified employees or other Senate-confirmed officials (such as the seven members of the Social Security Advisory Board, the two trustees of the Federal Old-Age and Survivors Trust Fund, the nine Directors of the Corporation for Public Broadcasting, and so on), with no present intent to even nominate a permanent replacement. The Executive Branch did not even request that authority. 1998 Hearing at 138. If Congress nonetheless intended to gift it, some legislator would have mentioned it. But none did. The courts will decline to read oblique language in statutes to change the law so dramatically. Whitman v. Am. Trucking Ass 'n, 531 U.S. 457, 2 See, e.g., 10 U.S.C. § 132(b) (automatic succession by Deputy Secretary of Defense); 10 U.S.C. § 154(d) (Vice Chairman of Joint Chiefs of Staff); 50 U.S.C. § 3026(a) (Principal Deputy Director of National Intelligence). 15 468 (2001) (Congress does not fundamentally alter regulatory schemes "in vague terms or ancillary provisions"). Congress does not put "elephants in mouseholes." Id.; see Branch v. Smith, 538 U.S. 254, 273 (2003) (presumption that statutes are not repealed by implication). Congress specifically knows how to use clear language to give the President the power to override the designation of a default successor, and courts do not stretch statutory language when it is obvious that Congress knew how to accomplish the same result much more directly. See, e.g., Mississippi ex rel. Hood v. AV Optronics Corp., 571 U.S. 161, 169 (2014); Whitfield v. United States, 543 U.S. 209, 216 (2005). Elsewhere, Congress expressly allowed the President to use the authority provided by the Vacancies Reform Act instead. Supra n.1. Congress also allowed the President to override the designated successor for specific offices. 3 The Vacancies Reform Act itself provides that the President may override the default rule for those offices to which it applies. See 5 U.S.C. § 3345(a) (the "first assistant" will 3 See 38 U.S.C. § 304 ("Unless the President designates another officer of the Government, the Deputy Secretary shall be Acting Secretary of Veterans Affairs during the absence or disability of the Secretary or in the event of a vacancy in the office of Secretary"); 40 U.S.C. § 302(b) ("The Deputy Administrator is Acting Administrator of General Services during the absence or disability of the Administrator and, unless the President designates another officer of the Federal Government, when the office of Administrator is vacant."); 42 U.S.C. § 902(b)(4) ("The Deputy Commissioner shall be Acting Commissioner of the Administration during the absence or disability of the Commissioner and, unless the President designates another officer of the Government as Acting Commissioner, in the event of a vacancy in the office of the Commissioner."). 16 I I ! [ f !I serve by default under paragraph ( 1), but the President may select another official "notwithstanding paragraph (1)"). None of those provisions applies to the Attorney General. The Government's contrary arguments are not persuasive. It notes that a provision of the Vacancies Reform Act excludes certain multi-member bodies. Id. § 3347c (excluding, for example, a body "composed of multiple members" and "any commissioner of the Federal Energy Regulatory Commission"). But that provision is not exclusive; it does not say that those are the "only" excluded offices. Instead, those bodies do not have their own office-specific succession statutes. Congress addressed multi-member bodies separately because they can continue to operate without an interim appointment of a single officer. See 144 Cong. Rec. S12823 (Oct. 21, 1998) (Sen. Thompson); id. at S 12824 (Sen. Byrd). The Government also would draw a negative inference from the fact that the predecessor vacancies act expressly excluded only the Office of the Attorney General. 5 U.S.C. § 3347 ( 1966). But that inference makes no sense, when Congress in the Vacancies Reform Act instead adopted a broader exclusion for all the statutes that "designate[]" a successor for a specific office. 5 U.S.C. § 3347(a)(l)(B). The Government also notes that the Attorney General Succession Act has always provided that "for the purpose of section 3345 of title 5 the Deputy Attorney General is the first assistant to the Attorney General." 28 U.S.C. § 508(a). But that 17 provision never had any substantive effect. It was enacted together with the prior vacancies act, which expressly did not apply to the Attorney General. 5 U.S.C. § 3347 (1966). And the Government itself believes that clause has no effect today even on its reading, because automatic appointments under the Attorney General Succession Act are not subject to the Vacancies Reform Act, which restricts the appointee 's length of service. Finally, the Government relies on a few decisions of other courts. OLC Memorandum at 6 (citing Hooks v. Kitsap Tenant Support Servs., Inc., 816 F.3d 550, 55556 (9th Cir. 2016); English v. Trump, 279 F. Supp. 3d 307, 323-24 (D.D.C. 2018)). One district court did conclude in dictum that the appointment of Mr. Whitaker was lawful, albeit with very truncated briefing. United States v. Valencia, No. 5: 17-CR882, ECF No. 175 (W.D. Tex. Nov. 27, 2018). But the two other cases relied on by the Government are distinguishable or unpersuasive. The Ninth Circuit has stated in brief dictum that the Vacancies Reform Act is "non-exclusive." Hooks, 816 F.3d at 555-56. But it was undisputed that the President could choose the official in that case (the Acting General Counsel of the National Labor Relations Board). Id. The Ninth Circuit also rested its decision on one sentence in one Report discussing the Senate version of the Vacancies Reform Act, without realizing that Congress did not adopt that bill. Id. Even as to that bill, the Report actually stated that "statutes that themselves stipulate who shall service in a 18 specific office" were "express exceptions." S. Rep. No. 105-250, at 2. The sentence quoted by the Ninth Circuit instead referred to what "would" occur if Congress were "to repeal those statutes in favor of the procedures contained in the Vacancies Act." Id. at 17. A district court upheld the President's appointment of an Acting Director of the Consumer Financial Protection Board when the Director resigned. English, 279 F. Supp. 3d at 323-24. But that decision is easily distinguishable as well. The court itself distinguished the Attorney General Selection Act as a statute that would displace the Vacancies Reform Act. Id. The court also indicated that only the President had any statutory authority because the Deputy Director could serve in an acting capacity only in cases of the Director's "absence or unavailability," not a resignation. Id. The court finally reasoned that its holding result was more consistent with the President's own constitutional authority to participate in selecting principal officers, because the Deputy Director was chosen by the Director. Id. That reasoning does not apply to the Deputy Attorney General, who is selected by the President. CONCLUSION For the foregoing reasons, the Court should hold that Matthew Whitaker may not participate in matters before this Court as Acting Attorney General of the United States. 19 Respectfully submitted, Thomas C. Goldstein Goldstein & Russell, P.C. 7475 Wisconsin Ave. Suite 850 Bethesda, MD 20814 (202) 362-0636 (Telephone) (800) 574-2033 (Fax) tgoldstein@goldsteinrussell.com December 7, 2018 20 l r ! I t ! l INDEX OF EXHIBITS EXHIBIT DESCRIPTION A Founding Era Appointments B Historical documents concerning the resignation of Secretary of War Henry Dearborn: Letter from Henry Dearborn to Thomas Jefferson (Feb. 16, 1809), Founders Online, National Archives, https ://founders.archives.govIdocuments/Jefferson/99-0 1-029810 ............................................................................................ l Letter from Thomas Jefferson to the War Department (Feb. 17, 1809), Founders Online, National Archives, https ://founders.archives.govI documents/}efferson/99-01-029824 ............................................................................................ 2 Letter from John Smith to Thomas Jefferson (Feb. 17, 1809), Founders Online, National Archives, https://founders.archives.gov/documents/Jefferson/99-01-029825 ............................................................................................ 3 Dearborn, Henry - Biographical Information, Biographical Directory of the U.S. Congress: 1774-Present, http://bioguide.congress.gov/scripts/biodisplay.pl?index= dOOOl 78 ...................................................................................... 4 William Gardner Bell, Secretaries of War and Secretaries of the Army 28 (1992) (updated electronically May 22, 2001), https://history.army.mil/books/Sw-SA/SWSAFm.htm ........................................................................................ 5 Letter from James Madison to William Eustis (Mar. 7, 1809), Founders Online, National Archives, https ://founders.archives.gov/documents/Madison/03-01-020028 .......................................................................................... l O Letter from William Eustis to James Madison (Mar. 18, 1809), Founders Online, National Archives, https://founders.archives.gov/documents/Madison/03-01-020070 .......................................................................................... 11 c Historical Appointments D Memorandum for Emmet T. Flood, Counsel to the President, from Steven A. Engel, Assistant Attorney General, Office of Legal Counsel, Re: Designating an Acting Attorney General (Nov. 14, 2018) EXHIBIT A . .1. a. 1.3.7 $3.22 2.. .. FOUNDING ERA APPOINTMENTS* Gaps left vacant (12) 1. Secretary of the Treasury Alexander Hamilton, resigned l /31 /1795 - Oliver Wolcott, Jr. nominated 2/2/1795; confirmed 2/3/1795; commissioned and entered upon duties 2/211795 (1 day gap). 2. Secretary of War Henry Knox, resigned 12/28/1794 and served until 12/31/1794Timothy Pickering nominated, confirmed, commissioned, and entered upon duties 1/2/1795 (1 day gap). 3. Attorney General Edmund Randolph, commissioned Secretary of State 1/211794 William Bradford nominated 1/24/1794; confirmed and commissioned 1127/1794; entered upon duties 1/29/1794 (27 day gap). 4. Attorney General William Bradford, died 8/23/1795 - Charles Lee nominated 12/9/1795; confirmed, commissioned, and entered upon duties 12/10/1795 (3 month, 17 day gap). 5. Postmaster General Timothy Pickering, commissioned Secretary of War 112/1795 Joseph Habersham nominated 2/24/1795; confirmed and commissioned 2/25/1795 (54 day gap). 6. Secretary of the Navy, newly created post 4/30/1798, declined by George Cabot on 5111/1798, who was nominated 5/1 /1798, and confirmed and commissioned 5/3/1798 to new post, declined - office vacant until Benjamin Stoddert nominated 5/18/1798; confirmed and commissioned 5/21/1798; and entered upon duties 6/18/1798 (49 day gap). 7. Secretary of the Treasury Samuel Dexter, resigned 4/20/1801, and served until 5/6/1801 Albert Gallatin recess appointed and commissioned 5/14/180 l (8 day gap). 8. Attorney General Levi Lincoln, resigned 12/28/1804 and served until 12/31/1804 Robert Smith (Secretary of the Navy) nominated and confirmed 3/2/1805, commissioned 31311805, but never took office - post remained vacant until next administration - next President left the post vacant until John Breckenridge was recess appointed and commissioned, and entered upon duties 817/1805 (7 month, 7 day gap). 9. Postmaster General Joseph Habersham, resigned 11/2/180 l - Gideon Granger recess appointment, commissioned, and entered upon duties 11/28/1801 (26 day gap). 10. Attorney General John Breckenridge, died 12/14/1806- Caesar A. Rodney nominated I/15/1807; confirmed and commissioned 1/20/1807 (37 days later). This appendix is compiled from information found in Robert Brent Mosher, Executive Register ofthe United States: 1789-1902 (1903). 11. Secretary of State James Madison, inaugurated President 3/4/1809 - Robert Smith nominated, confirmed, commissioned, and entered upon duties 3/6/ 1809 (1 day gap). 12. Attorney General Caesar A. Rodney, resigned 12/5/1811 - William Pinkney nominated 12/10/1811; confirmed and commissioned 12/11/1811; and entered upon duties 1/6/1812 (32 day gap). Gaps where Senate-confirmed officer was appointed to serve (8) 1. Secretary of State Edmund Randolph, resigned 8/2011795 - Timothy Pickering (Secretary of War) served ad interim until he was nominated 12/9/1795 and confirmed and commissioned 12/10/1795. 2. Secretary of War Timothy Pickering, commissioned Secretary of State 12/10/1795 Pickering (now Secretary of State) served ad interim until James McHenry was nominated, confirmed, and entered upon duties 2/6/1796. 3. Secretary of State Timothy Pickering, fired 5112/1800-Charles Lee (Attorney General) served ad interim unti1 John Marshall was nominated 5/12/1800; confirmed and commissioned 5/13/1800; and entered upon duties 6/6/1800. 4. Secretary of State John Marshall, commissioned Chief Justice l /31/1801, served until 2/4/1801 John Marshall (now Chief Justice) began ad interim service 2/4/1801 (3 day gap) and served until the end of the administration. 5. Secretary of War James McHenry, was asked by President Adams to resign, and he did 5/31 /1800 - Benjamin Stoddert (Secretary of the Navy) served ad interim until Samuel Dexter was nominated 5/12/1800; confirmed and commissioned 5/13/1800; and entered upon duties 6/12/1800. 6. Secretary of War Samuel Dexter, commissioned Secretary of the Treasury 1/1/1801 Samuel Dexter (now Secretary of Treasury) served ad interim until the end of the administration. 7. Ad interim Secretary of State John Marshall (Chief Justice), replaced by Levi Lincoln (Attorney General) on 3/4/1801 as ad interim Secretary of State, at the start of the Jefferson Administration, until James Madison was nominated and commissioned 3/511801, and entered upon duties 5/2/ 1801. 8. Secretary of the Navy Benjamin Stoddert, resigned 2/18/1801 and served until 3/31/1801 - Henry Dearborn (Secretary of War) served ad interim until Robert Smith was recess appointed and commissioned 711511801, and entered upon duties 7/27/1801. 2 Non-Senate-confirmed officer sening during exigency (1) I. Secretary of War Henry Dearborn, resigned 2/16/1809-John Smith (Chief Clerk) served ad interim for the final two weeks of the Jefferson administration, and continued until William Eustis was nominated 3/611809; confirmed and commissioned 31711809 (3 days after the start of the Madison administration); and entered upon duties 4/8/ 1809. 3 I an I 1 11/2812018 To Thomas Jefferson from Henry Dearborn, 16 February 1809 Founders Online [Beclc to normal view] To THOMAS JEFFERSON FROM HENRY DEARBORN, 16 FEBRUARY 1809 Sia, Washington Pebruy. 16th. i8o9 nr I accept with gra11'full reeUngs the recent merit your rrlendahlp, end having taken the requisite lleps for authorising my entering on the duties or my new office, I hereby resign the office of Seaetary of the Department of War.-be pleMecl Sir lo accept my inost since"' thanks for the many obligations )'OU have conferee! on me. and belie-Ye lo be with the highest reapect le esteem your sincere rriend. H. OKAllllOIUI DLC: Papers of Thomas Jefferson. EARLY ACCESS LINK https://founders.an:ht•....gov/doeomenll/Jefferson/99-01-02-98•0 Whal'1 lhls? SOURCE PROJECT TITL£ AtrrHOR RECIPIENT DATE CITE AS Jefferson Papers To Tbomu Jefferson from Henry Dearborn, 16 February 1809 Dearborn, Henry Jefferson, ThomRS 16 February 1!1o9 "To Thomas Jefferson from Henry Dealbom, 16 February 1809,• Foundrn Online, National Ardlh... , Jut modified June 13, 2018, bttp://founders.arclilwo.gov/documonts/Jefferson/99-Q1-02-C)810. [Thil ii an Early Acees8 document from The Papen ofTbomu Jefferson. It ii not an authoritative final version.] The Notional HiQqrk;aJ P!abJic;etiom and BcrPnk r.pmmiutqn (NHPRC) ii part of the National Att.hiYa. Through its grant.I program, the NHPRC nppoN a wide range of act191tlea to p._..., pablilh, and enc:ounge the use of docwnentary aources, relating to the hiltory of the United StatH. and """rch and development projecb to bring historical n!COnb 10 the public. 1 https://founders.archives.gov/?q=%20Period%3A%22Jefferson%20Presldencyo/o22&s=1111311111 &sa=dearbom&r=345&sr=#print_vlew 1/1 11/28/2018 From Thomas Jefferson to War Department, 17 February 1809 Founders Online FROM THOMAS JEFFERSON TO WAR DEPARTMENT, 17 FEBRUARY 1809 Whereas, by the reoignation of Heruy Dearbome, late Secretary 11 War, that office ii become vacant. I therefon do hereby authorue John Smith, chief dork of the offit"e of the Department of War, to perform the duties of the uid offite, until a suttess0r be appointed. Given under my hand ot Washington this 171h. day of February 1809. TH: J.una&ON DNA: RG 107-LRUS-Letters Received by the Seaetary of War, Unregistered Serles. l!ARLY ACCESS LlNX https://founden.ardtiv...gov/documents/Jeffenon/99-01-02-9824 Whot'•tllio? SOURCE PROJECT lTTLI! AlfiliOR RECIPIENT DATE CITE AS Jelferoon Papers From Thoma• Jelfenon to War Department, 17 February 1809 Jefferson, Thomas War Department 17 February 18o9 "Prom Thomas Jefferson to War Department, 17 February 1809," Found•rs Online, National Arcbnu, last modified June 13, 2018, http://founde1urchnu.gov/documents/Jeffenon/99-01-02-9824. (This ill an Early"- docwnent frvm The Papers ofThomu Jefferson. 11 ls not an authoritative final version.] The Nltlonal Hiltwjcal PubliqtjQDI ond Becgn!s Commlg!on (NHPRC) is part of the National Archiwa. Through its &nnts program, the NHPRC tupports •wide ronge of ldlvltles to prnerw, publish, and enmunse the use of documentary aourcn, n!leting to the history of the United Slates, and nosearcli 1111d deftlopment projects to bring historical n!COrds to the public. founden ODllne b an offidlll w.bslt• uf lbir l!.S. gawmmmt, .dmlnb:teftd by Ull' National Arcbk'n. .nd R900rdt AdmlniJt1f.don tNnugb. the> NHPRC, ln partnttthipwhk tM Untnnity o(Vlrgln'9 Preu., w.bkb b baslin1 this ~t.ltll!.. 2 https:h'founders.archives.gov/documents/Jefferson/99-01-02-9824 1/1 11/28/2018 To Thomas Jefferson from John Smith, 17 February 1809 Founders Online [Back to nowa! viewl TO THOMAS JEFFERSON FROM JOHN SMITH, 17 FEBRUARY 1809 SIR, Feb: 171h. t8o9 I hlYe hod the honor of .-mng your oommission to perfonn the duties of Secmary at War until a • - o r be appointed lo General Dearborn late $e(retary.-Permit me to~ to you my gratitude for this evldenoe of your eonlidmce, and to usure you that, whUe I nogret that some one more competent lnid not recen...t the commission, u far u I am capable Ill dudea shall be faithfully executed I have the honor to be, Sir, with perfect raped I: esteem Your Ob. Sevt. JNo.SMITH ~: RG 59-LAR-Letters of Appllcetlon and Recommendation. l!AllLY ACCESS LINK https://founden.ardilwl.gov/documents/Jefrel'IOll/99-01-02"9825 What'• this? SOURCE PROJECI' 11TLE AUTHOR RECIPIENT DATE CTTI! AS Jefferson Papen To Thomas Jefferson from John Smith, 17 February 1809 Smith, Jobn Jeffmian, Thomas 17 Pebniary 1809 "To Thomas Jeffanon from John Smith, 17 Febniuy 1809,• Found•rs Onlin., National An:hlws, tut modified June 13, 2018, http://foundeis.an:hifts.gov/domigjM (NHPRC) is part of the NationaJ Archivel. Through ill gr.nts program, the NHPRC suppor!I a wide range ol llC!ivllla to preserve, publish, and encourage !he - of documentary sources, relating to lbe hbtory of the United Statea, and raearch and development projects to bring historical records to the public. 3 https://founders.archives.govnq=Reclplent%3A%22Jefferson%2C%20Thomas%22%20Period%3A%22Jefferson%20Presidency%22%20Author%3A... 1/1 DEARBORN, Henry- Biographical Information 11/28/2018 DEARBORN, Henry, (1751-1829) DEARBORN, Henry, (father of Henry Alexander Scammell Dearborn), a Representative from Massachusetts; born in North Hampton, N.H., February 23, 1751; attended the public schools; studied medicine; commenced practice in Nottingham Square in 1772; during the Revolutionary War was a captain in Stark's Regiment and participated in the Battle of Bunker Hill; accompanied Arnold's expedition lo Canada and took part in the storming of Quebec; was taken prisoner, but was released on parole in May 1776; joined Washington's staff in 1781 as deputy quanermaster general with rank of colonel, and served at the siege of Yorktown; moved to Monmouth, Mass. (now Maine), in June 1784; elected brigadier general of militia in 1787 and made major general in 1789; appointed United States marshal for the district of Maine in 1789; elected as an Anti· Administration candidate from a Maine district of Massachusetts to the Third Congress and reelected as a Republican to the Fourth Congress (March 4, 1793-March 3, 1797); appointed Secretary of War by President Jefferson and served from Mm:h 4, 1801, to March 7, 1809; appointed collector of the pon of Boston by President Madison in 1809, which position he held until January 27, 1812, when he was appointed senior major general in the United States Anny; was in command at the capture of York (now Toronto) April 27, 1813, and Fon George May 27, 1813; recalled &om the frontier July 6, 1813, and placed in command of the city of New York; appointed Minister Plenipotentiary to Portugal by President Monroe and served from May 7, 1822, to June 30, 1824, when, by his own request, he was recalled; returned to Roxbury, Mass., where he died June 6, 1829; interment in Forest Hills Cernclery, Boston, Mass. Bibliography Erney, Richard Alton. The Public Life ofHent}' Dearborn. 1957. Reprint, New York: Arno Press, 1979. 4 http://bioguide.congress.gov/scripts/blodisplay.pl?index=d000178 1/1 11/28/2018 Secretaries of War & Secretaries of the Army This document Is based on the 1992 version of the Secretaries of War and Secretaries ofthe Army book. Mr. West and Mr. Caldera were added the last time we updated this electronic document. Future updates will be accomplished as resources permit. SECRETARIES OF WAR ---AND--- SECRETARIES OF THE ARMY Portraits & Biographical Sketches by William Gardner Bell CENTER OF MILITARY HISTORY UNITED STATES ARMY WASHINGTON, D.C., 1992 - - - - - - - - - - - --·-···--·--·------- Library of Congress Cataloging in Publication Data Bell, William Gardner. Sccn:tarics of war and secretaries of the anny. Bibliography: p. Includes index. I. United States. Dept. of the Army+Officials and employees+ Biography. 2. United States. War Dcpt.+Officials and employees+Biography. 3. Cabinet officers+ United States+Biography. I. Title. E176.B42 353.62.092+2 [BJ 80-20122 First Printed 1981 +CMH Pub 10+ 12 FOREWORD THE AUTHOR PREFACE TO THE FJRST PRINTING -- -----·--" -- - INTROQUCTJON -----· ---- -----·- ------- -- - - - --------------------------- Secretaries of War 5 https://hlslory.army.miVbooks/Sw-SNSWSA-Fm.htm 1/4 11/28/2018 Secrelaries of War & Secrelaries of the Anny &w:y...K.nwi; 20 Ii.mmhx fis.:kcring 22 Jam~ 24 Mi:l:lenrr. Samucl Dlll'tcr 26 lknry, Ilcarbom 28 W:illiillll Eus1is 30 Jgbn Anns1mng 32 lJmi:s M1mw1: 34 W:illiam Hmis CDm:fQrd 36 llilin Cald~s:ll Calhgun 38 James El11mo1.1c 40 fl:ll:I Eluel) f!Hl!:C 42 John Hi:ozy...Eilgn 44 l&»:ia Cass 46 ~I 48 Jghn B.obcm e2i11ss::n so Bell John Canfield s~ 52 James Mi!disoo E!lI1c£ 54 W:illiam W:ilkios 56 Willi11m Lemu:d Mm:kY. 58 !l.e.w"gc W:11shing12n CraYr:fi.ml 60 Ch11d~ 62 Milgill C2orad Ji:ffei:sim Da~is 64 John Bui:hanan Eloy.d 66 ~phJiQU 68 Siman C11mCI120 70 Edwin Mi:MBSlcr.s Slallton 72 JWin Mi:Allis~ Siget. 'Thro\llh its grants program, I.he NH PRC 1uppnrts a wid• range of ac:tivitla top.......,..,, publish, .00 encourage the""" of documenta:y ..........,., nollling to the history of the United States, and rescatth and 4-!opme.nt pl'OjecU to bring hut,,dw rec:orda to the wblic. IO https:/Jfounders.archlves.govnq=eustis%20Author%3A%22Madison%2C%20James%22%20Reeipient%3A%22Eustis%2C%20W1Ulam%22&s=111131.,. 1/1 1112812018 To James Madison from WIHlam Eustis, 18 March 1809 Founders Online [Back to norroal yiew) To JAMES MADISON FROM WILLIAM EUSTIS, 18 MARCH 1809 From William Eustis llom>N March (18th 18119.) S11t, l.ltio,g absent from town l did not (rec.)eive 1111tiU the IM!lllng of the 15th. )'Ctlr Letter of the 7lh Instant -paniecl with • Commission of Secmary lo the war depllrtmcn1.l 1m.,._..i with a just sense of the honor CQQ{erred on me by tllil distinguiahed mark of your confideru:e, and by the very obligill1 mllDl1CO' In whkh It was ~h!d. I have delayed an answer no longer lhlln ....., 11t'C1!11111')' lo rontemplate the lmportan<:e and high miponaiDilll;y of the mlion, the inadequacy or my own powen and the Implied cllangc in my occup11laD and hablta of life. An apprebemlon tbat my health could bOI be preK1V«l thro' a rummor-raldenoe at Washinglon pramted il5elf u a principal objection. Tniatmg lo lhe pn>htbillt)< lhal lhe exigendea of the public ll!Mce may render ncli a ll!9ldenoe nnt indltpensable I will come to Ilse dQtlel of tbe office with such meam and talent& as I pcllM!*" and with the hope that In the ........., of their application there may arise llO just tauae for ~R$!lre from the public and nn repel on your pan that the appointment lw been Ihm hettowed. ln •very few days It ia my Intention to leavethia pla<.o-1oecqulrf illto theatateoftht public worb at N. York agreeably to an injunction oon""'lf"d to .,.. by!M Sec:mary ofSt&tt aod to proo. [Original sou""" The Papers ofJam• M11dllon, Presklentlal Serlell, vol.1, 1 M11rth-30 September 1809, td. Robert A. Rutland, 11iomu A. Muon, Robert J. Brugger, Susannah H. Jon.., Jeanne K. ll!sxm, and Fmlrlka J. Teute. Charlottesville: Univenlity Prus of Virginia, 1984. p. 66.) CITEAS Madlaon, James The Na!lQDal Histgriql Pphljqt!Ms end Rcmg!sl)npm!plqp (NHPRC) la pan oftl!eNatiomlAtclitm. Tluoughlts gnnLs program, the NH PRC npPOJU a wide ranp of IC!hltla le praer'l'e, publiah, abd ~ tlie - of documental)' '""'"""• ltlad111 to the hlatory of Ille U11ilml St&tes. md raean:h and de'velopme:nl p'DjeclB lo bring historical remrds lo tht !"'l>lk. 11 https://founders.archives.govnq=eustls%20Author"A.3A%22Eustis%2C%20Wllliam%22%20Reciplent%3A%22Madlson%2C%20James%22&s-111131... 111 n. .. .3, EXHIBIT HISTORICAL APPOINTMENTS 1 Recess Appointments (5) 1. 10/22/ 1816 to 12/ 1011817: George Graham, Chief Clerk, temporarily appointed Secretary of War. (BD) 2 2. 09/01/1823 to 09/16/1823: John Rodgers, Commodore (Navy) and President of the Board of Navy Commissioners, temporarily appointed Secretary of the Navy. (BD) 3. 05/12/1831 to 05/23/1831: John Boyle, Chief Clerk, temporarily appointed Secretary of the Navy. (BD) 4. 06/20/1831 to 07/21/1831: Phillip G. Randolph, Chief Clerk, temporarily appointed Secretary of War. (BD) 5. 06/21 /1831 to 08/07 /1831: Asbury Dickins, Chief Clerk, temporarily appointed Secretary of Treasury. (AD) Acting Appointment While Secretary Is Indisposed (145) 1. 02/17 /1809 to 04/08/1809: John Smith, Chief Clerk, temporarily acting as Secretary of War. (BD) New administration 3/04/1809; successor nominated 3/06/1809 (2 days later); confirmed 3/07/1809 (1 day after nomination); entered upon duties 4/08/1809. 2. 03/08/1809 to 05/15/1809: Charles W. Goldsborough, Chief Clerk, temporarily appointed Secretary of the Navy. (BD) 3. 11/23/1819: Christopher Vanderventer, Chief Clerk, temporarily acting as Secretary of War. (AJ) 4. 04/24/1829 to 05/26/1829: Asbury Dickins, Chief Clerk, temporarily acting as Secretary of Treasury. (AD) 5. 07/07/1829: William B. Lewis temporarily acting as Secretary of War. (AJ) 6. 07/08/1829: Richard H. Bradford temporarily acting as Secretary of the Navy. (AJ) 7. 08/19/1829: William B. Lewis temporarily acting as Secretary of War. (AJ) This appendix is compiled from information found in the following sources, cited by the Government, with abbreviations used herein noted in parentheticals: Trial of Andrew Johnson, President of the United States, Before the Senate of the United States, on Impeachment by the House of Representatives for High Crimes and Misdemeanors (Gov't Printing Office 1868) (AJ); Biographical Directory ofthe American Congress: 1774-1971 (Gov't Printing Office 1971) (BD); In re Asbury Dickins, 34th Cong., 1st Sess., Rep. C.C. 9 (Ct. Cl. 1856) (AD); In re Cornelius Boyle, 34th Cong., 3d Sess., Rep. C.C. 44 (Ct. CL 1857) (CB). 2 Full date ranges are provided when contained in the source material. Otherwise, only start dates of the temporary appointment are shown. 8. 11 /07 /1829: Phillip G. Randolph, Chief Clerk, temporarily acting as Secretary of War. (AJ) 9. 06/12/1830: Phillip G. Randolph, Chief Clerk, temporarily acting as Secretary of War. (AJ) 10. 03/08/1831: Phillip G. Randolph, Chief Clerk, temporarily acting as Secretary of War. (AJ) 11. 03/21/1831 to 04/14/1831: John Boyle, Chief Clerk, temporarily acting as Secretary of the Navy. (CB) 12. 06/16/1831 to 06/23/1831: John Boyle, Chief Clerk, temporarily acting as Secretary of the Navy. (CB) 13. 08/10/1831: Daniel Brent, Chief Clerk, temporarily acting as Secretary of State. (AJ) 14. 08/10/1831 to 09/20/1831; John Boyle, Chief Clerk, temporarily acting as Secretary of the Navy. (CB) 15. 10/18/1831 to 10/26/1831: Asbury Dickins, Chief Clerk, temporarily acting as Secretary of Treasury. (AD) 16. 03/15/1832 to 03/30/1832: Asbury Dickins, Chief Clerk, temporarily acting as Secretary of Treasury. (AD) 17. 06/08/1832: John Robb, Chief Clerk, temporarily acting as Secretary of War. (AJ) 18. 07/16/1832: John Robb, Chief Clerk, temporarily acting as Secretary of War. (AJ) 19. 07/18/1832: Asbury Dickins, Chief Clerk, temporarily acting as Secretary ofTreasury. (AJ) 20. 07/21/1832: Daniel Brent, Chief Clerk, temporarily acting as Secretary of State. (AJ) 21. 07/23/1832: John Boyle, Chief Clerk, temporarily acting as Secretary of the Navy. (CB) 22. 10/01/1832 to 10/10/1832: Asbury Dickins, Chief Clerk, temporarily acting as Secretary ofTreasury. (AD) 23. 11/08/1832 to 11/17/1832: Asbury Dickins, Chief Clerk, temporarily acting as Secretary of Treasury. (AD) 24. 11112/1832: John Robb, Chief Clerk, temporarily acting as Secretary of War. (AJ) 25. 03/28/1833: John Boyle, Chief Clerk, temporarily acting as Secretary of the Navy. (CB) 26. 05/06/1833 to 05/09/1833: Asbury Dickins, Chief Clerk, temporarily acting as Secretary ofTreasury. (AD) 27. 05/06/1833: John Robb, Chief Clerk, temporarily acting as Secretary of War. (AJ) 28. 05/29/1833 to 05/31/1833: Asbury Dickins, Chief Clerk, temporarily acting as Secretary ofTreasury. (AD) 29. 06/13/1833: Daniel Brent, Chief Clerk, temporarily acting as Secretary of State. (AJ) 2 30. 06/05/1833: John Boyle, Chief Clerk, temporarily acting as Secretary of the Navy. (CB) 31. 06/05/1833: Daniel Brent, Chief Clerk, temporarily acting as Secretary of State. (AJ) 32. 06/06/1833: John Robb, Chief Clerk, temporarily acting as Secretary of War. (AJ) 33. 06/13/1833: Daniel Brent, Chief Clerk, temporarily acting as Secretary of State. (AJ) 34. 07/18/1833: Asbury Dickins, Chief Clerk, temporarily acting as Secretary of Treasury. (AJ) 35. 07 /21/1833: Daniel Brent, Chief Clerk, temporarily acting as Secretary of State. (AJ) 36. 08/10/1833 to 08/24/1833: Asbury Dickins, Chief Clerk, temporarily acting as Secretary of State. (AD) 37. 09/28/1833: John Robb, Chief Clerk, temporarily acting as Secretary of War. (AJ) 38. 11/11/1833 to 11/15/1833: Asbury Dickins, Chief Clerk, temporarily acting as Secretary of State. (AD) 39. 05/08/1834: Mahlon Dickerson temporarily acting as Secretary of War. (AJ) 40. 07/05/1834: John Boyle, Chief Clerk, temporarily acting as Secretary of the Navy. (CB) 41. 07/08/1834: Asbury Dickins, Chief Clerk, temporarily acting as Secretary of State. (AJ) 42. 10/11/1834 to 10/31/1834: Asbury Dickins, Chief Clerk, temporarily acting as Secretary of State. (AD) 43. 05/02/1835 to 06/13/1835: Asbury Dickins, Chief Clerk, temporarily acting as Secretary ofState. (AD) 44. 05/07 /1835 to 06/17/1835: John Boyle, Chief Clerk, temporarily acting as Secretary of the Navy. (CB) 45. 05118/1835: Carey A. Harris, Chief Clerk, temporarily acting as Secretary of War. (AJ) 46. 07/01/1835: McClintock Young, Chief Clerk, temporarily acting as Secretary of Treasury. (AJ) 47. 07/06/1835 to 07/13/1835: Asbury Dickins, Chief Clerk, temporarily acting as Secretary of State. (AD) 48. 08/31/1835 to 09/08/1835: Asbury Dickins, Chief Clerk, temporarily acting as Secretary of State. (AD) 49. 09/28/1835 to 10/19/1835: Asbury Dickins, Chief Clerk, temporarily acting as Secretary of State. (AD) 50. 10/20/1835: McClintock Young, Chief Clerk, temporarily acting as Secretary of Treasury. (AJ) 51. 10/23/1835: Carey A. Harris, Chief Clerk, temporarily acting as Secretary of War. (AJ) 52. 04/29/1836: Carey A. Harris, Chief Clerk, temporarily acting as Secretary of War. (AJ) 3 53. 05/19/I 836 to 05/23/1836: Asbury Dickins, Chief Clerk, temporarily acting as Secretary of State. (AD) 54. 05/27/1836: Carey A. Harris, Chief Clerk, temporarily acting as Secretary of War. (AJ) 55. 07/07/1836 to 08/29/1836: Asbury Dickins, Chief Clerk, temporarily acting as Secretary of State. (AD) 56. 07/0911836: John Boyle, Chief Clerk, temporarily acting as Secretary of the Navy. (CB) 57. 09/27/l 836 to 11/09/1836: Asbury Dickins, Chief Clerk, temporarily acting as Secretary of State. (AD) 58. 06/28/1837: Aaron 0. Dayton, Chief Clerk, temporarily acting as Secretary of State. (AJ) 59. 07/13/1837 to 07/31/I 837: John Boyle, Chief Clerk, temporarily acting as Secretary of the Navy. (CB) 60. 10/20/1837: McClintock Young, Chief Clerk, temporarily acting as Secretary of Treasury. (AJ) 61. 10/27/1837: John Boyle, Chief Clerk, temporarily acting as Secretary of the Navy. (AJ) 62. 07/01/1838: McClintock Young, Chief Clerk, temporarily acting as Secretary of Treasury. (AJ) 63. 07/21/1838: Aaron Vail, Chief Clerk, temporarily acting as Secretary of State. (AJ) 64. 07/21/1838: John Boyle, Chief Clerk, temporarily acting as Secretary of the Navy. (AJ) 65. 10/06/1838 to 11/05/l 838: John Boyle, Chief Clerk, temporarily acting as Secretary of the Navy. (CB) 66. 04/24/1839: McClintock Young, Chief Clerk, temporarily acting as Secretary of Treasury. (AJ) 67. 06/08/1839: Aaron Vail, Chief Clerk, temporarily acting as Secretary of State. (AJ) 68. 06/15/1839: McClintock Young, Chief Clerk, temporarily acting as Secretary of Treasury. (AJ) 69. 08/28/1840: J.L. Martin, Chief Clerk, temporarily acting as Secretary of State. (AJ) 70. 10/16/1840: J.L. Martin, Chief Clerk, temporarily acting as Secretary of State. (AJ) 71. 03119/1841: John D. Simms, Chief Clerk, temporarily acting as Secretary of the Navy. (AJ) 72. 04/27/184 I: Daniel Fletcher Webster, Chief Clerk, temporarily acting as Secretary of State. (AJ) 73. 08/20/1841: William S. Derrick, Chief Clerk, temporarily acting as Secretary of State. (AJ) 4 74. 09/13/1841 to 09113/1841: McClintock Young, Chief Clerk, temporarily appointed Secretary of Treasury. (BD) 75. 09/14/1841 to 10/13/184 I: Selah R. Hobbie, First Assistant Postmaster General, temporarily appointed Postmaster General. (BD) 76. 10/20/1841: William S. Derrick, Chief Clerk, temporarily acting as Secretary of State. (AJ) 77. I 0/30/1841: McClintock Young, Chief Clerk, temporarily appointed Secretary of Treasury. (AJ) 78. 05/14/1842: McClintock Young, Chief Clerk, temporarily acting as Secretary of Treasury. (AJ) 79. 06/07/1842: McClintock Young, Chief Clerk, temporarily acting as Secretary of Treasury. (AJ) 80. 06/30/1842: McClintock Young, Chief Clerk, temporarily acting as Secretary of Treasury. (AJ) 81. 0712011842: McClintock Young, Chief Clerk, temporarily acting as Secretary of Treasury. (AJ) 82. I 2/14/1842: McClintock Young, Chief Clerk, temporarily acting as Secretary of Treasury. (AJ) 83. 11/01/1842: McClintock Young, Chief Clerk, temporarily acting as Secretary of Treasury. (AJ) 84. 05/31/1843: Samuel Hume Porter temporarily acting as Secretary of War. (AJ) 85. 06/08/1843: McClintock Young, Chief Clerk, temporarily acting as Secretary of Treasury. (AJ) 86. 06/08/1843: William S. Derrick, Chief Clerk, temporarily acting as Secretary of State. (AJ) 87. 06/2111843 to 06/24/1843: William S. Derrick, Chief Clerk, temporarily appointed Secretary of State. (BD) 88. 08/17 /1843: William S. Derrick, Chief Clerk, temporarily acting as Secretary of State. (AJ) 89. 08/28/1843: McClintock Young, Chief Clerk, temporarily acting as Secretary of Treasury. (AJ) 90. 09/28/1844: Richard K. Cralle, Chief Clerk, temporarily acting as Secretary of State. (AJ) 91. 03/31 /1846: Nicholas P. Tri st, Chief Clerk, temporarily acting as Secretary of State. (AJ) 5 92. 09/02/1846: Nicholas P. Tri st, Chief Clerk, temporarily acting as Secretary of State. (AJ) 93. l 0/0711846: McClintock Young, Chief Clerk, temporarily acting as Secretary of Treasury. (AJ) 94. 03/04/1847: Nicholas P. Trist, Chief Clerk, temporarily acting as Secretary of State. (AJ) 95. 03/31/1847: Nicholas P. Trist, Chief Clerk, temporarily acting as Secretary of State. (AJ) 96. 07 /21/1847: McCJintock Young, Chief Clerk, temporarily acting as Secretary of Treasury. (AJ) 97. 08/04/1847: William S. Derrick, Chief Clerk, temporarily acting as Secretary of State. (AJ) 98. 10/15/1847: McClintock Young, Chief Clerk, temporarily acting as Secretary of Treasury. (AJ) 99. 12/09/1847: McClintock Young, Chief Clerk, temporarily acting as Secretary of Treasury. (AJ) 100. 04110/1848: John Appleton, Chief Clerk, temporarily acting as Secretary of State. (AJ) 101. 05/26/1848: Archibald Campbell, Chief Clerk, temporarily acting as Secretary of War. (AJ) 102. 08/1711848: McClintock Young, Chief Clerk, temporarily acting as Secretary of Treasury. (AJ) 103. 10/01/1849: William S. Derrick, Chief Clerk, temporarily acting as Secretary of State. (AJ) 104. 10/0811849: John D. McPherson, Chief Clerk, temporarily acting as Secretary of War. (AJ) l 05. 06/20/1850: John McGinnis, Chief Clerk, temporarily acting as Secretary of Treasury. (AJ) 106. 10/04/1850: William S. Derrick, Chief Clerk, temporarily acting as Secretary of State. (AJ) 107. 10/07/1850: Allen A. Hall temporarily acting as Secretary of Treasury. (AJ) 108. 12/0611850: William S. Derrick, Chief Clerk, temporarily acting as Secretary of State. (AJ) 109. 12/23/1850: William S. Derrick, Chief Clerk, temporarily acting as Secretary of State. (AJ) 110. 03/01/1851: WiUiam L. Hodge, Assistant Secretary, temporarily acting as Secretary of Treasury. (AJ) 6 111. 03/31 /1851 : William S. Derrick, Chief Clerk, temporarily acting as Secretary of State. (AJ) 112. 05110/1851: William S. Derrick, Chief Clerk, temporarily acting as Secretary of State. (AJ) 113. 06/16/1851: William L. Hodge, Assistant Secretary, temporarily acting as Secretary of Treasury. (AJ) 114. 06/20/1851: William S. Derrick, Chief Clerk, temporarily acting as Secretary of State. (AJ) 115. 07 /14/1851: William S. Derrick, Chief Clerk, temporarily acting as Secretary of State. (AJ) 116. 08/04/1851: William L. Hodge, Assistant Secretary, temporarily acting as Secretary of Treasury. (AJ) 117. 09/13/1851: William L. Hodge, Assistant Secretary, temporarily acting as Secretary of Treasury. (AJ) 118. 11 /26/1851 : William L. Hodge, Assistant Secretary, temporarily acting as Secretary of Treasury. (AJ) 119. 02/20/1852: William S. Derrick, Chief Clerk, temporarily acting as Secretary of State. (AJ) 120. 02/21/1852: William L. Hodge, Assistant Secretary, temporarily acting as Secretary of Treasury. (AJ) 121. 03/01/1852: William L. Hodge, Assistant Secretary, temporarily acting as Secretary of Treasury. (AJ) 122. 03/19/1852: William Hunter, Chief Clerk, temporarily acting as Secretary of State. (AJ) 123. 04/26/1852: William L. Hodge, Assistant Secretary, temporarily acting as Secretary of Treasury. (AJ) 124. 0510 I/1852: William Hunter, Chief Clerk, temporarily acting as Secretary of State. (AJ) 125. 05/24/1852: William L. Hodge, Assistant Secretary, temporarily acting as Secretary of Treasury. (AJ) 126. 06/10/1852: William L. Hodge, Assistant Secretary, temporarily acting as Secretary of Treasury. (AJ) 127. 07/06/1852: William Hunter, Chief Clerk, temporarily acting as Secretary of State. (AJ) 128. 08/27/1852: William L. Hodge, Assistant Secretary, temporarily acting as Secretary of Treasury. (AJ) 129. 10/04/1852: William L. Hodge, Assistant Secretary, temporarily acting as Secretary of Treasury. (AJ) 7 130. 10/28/l 852: William L. Hodge, Assistant Secretary, temporarily acting as Secretary of Treasury. (AJ) 131. 12/31/1852: William L. Hodge, Assistant Secretary, temporarily acting as Secretary of Treasury. (AJ) 132. 01/15/1853: William L. Hodge, Assistant Secretary, temporarily acting as Secretary of Treasury. (AJ) 133. 03/03/1853: William L. Hodge, Assistant Secretary, temporarily acting as Secretary of Treasury. (AJ) 134. 07/11/1853: Peter G. Washington, Assistant Secretary, temporarily acting as Secretary of Treasury. (AJ) 135. 09/23/l 853: Peter G. Washington, Assistant Secretary, temporarily a