In most of those cases, the official who was being replaced was out only temporarily, or left voluntarily. Never, Goldstein wrote, had a president "forced out a Cabinet Secretary and replaced him with a hand-picked, non-confirmed appointee from outside the Department's chain of authority."
And Goldstein agreed that the question could soon become irrelevant, writing that the "question will probably evade this Court's review forever if it doesn't act very soon." But that was a reason for the court to rule promptly on Whitaker's appointment, not to let the issue percolate, he said.
"There is no way to resurrect it if this Court later concludes in a separate case that Mr. Whitaker's appointment was illegal or unconstitutional. Again, who would make that argument? How would they do it?"
The special counsel itself would be prohibited from making such an argument, he said. And it is unlikely that any of Mueller's targets would challenge Whitaker's appointment because they are likely to want the probe narrowed, not expanded.
Several other major cases against Whitaker's appointment are pending before lower courts. More than a dozen states and the District of Columbia joined onto a suit in Maryland earlier this month demanding that Whitaker's appointment be scrapped. And last week, Democratic Sens. Richard Blumenthal of Connecticut, Mazie Hirono of Hawaii and Sheldon Whitehouse of Rhode Island filed suit in Washington.
Goldstein expressed doubts about whether those cases would be resolved in a timely fashion, if at all, and urged the justices to void Whitaker's appointment promptly because of the urgency of the matter.
"The Framers saw Donald Trump coming almost 250 years ago," Goldstein wrote. "They had King George to work from."