We need to zero in on this critical point. “Acting” cabinet secretaries are commonplace. They’re standard when someone resigns or leaves office without a confirmed replacement. Presidents have not infrequently used so-called recess appointments to install cabinet secretaries who could not get Senate confirmation or couldn’t even receive a vote — though the courts have now greatly restricted that power. Indeed, the Vacancies Act does give the President the power under certain circumstances to sidestep the ordinary order of succession in a department to make other people the “acting” secretary. But what happened yesterday is different from all those cases. This is perhaps the first time when a President has installed a cabinet secretary without senate confirmation for the specific purpose of committing a corrupt act.
However pliant and solicitous the Senate majority has been, a replacement for Jeff Sessions would have gotten close scrutiny in confirmation hearings and he or she almost certainly would have been asked to make specific commitments about the continuance of the Mueller probe. Even in the hours since his installation, we’ve learned that Whitaker is the ultimate loyalist, who seems to have gotten his job as Chief of Staff at the DOJ by repeatedly pledging his loyalty to President Trump and publicly attacking the Mueller probe. He even has some non-trivial connections to the Russia story itself.
Again, non-confirmed cabinet secretaries are not unprecedented. This use is unprecedented, with the possible exception — depending on how you want to define things — of the Saturday Night Massacre itself.