Interesting question
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President Trump’s personal lawyer—former New York City Mayor Rudy Giuliani—appears to have played a pivotal role in orchestrating the president’s designs with respect to Ukraine. Assuming the part of an unofficial diplomat, Giuliani reportedly met with a Ukrainian prosecutor and with a senior aide to Ukrainian President Volodymyr Zelensky in order to press for an investigation of former Vice President Joe Biden. In doing so, Giuliani appears to have sidelined the national security officials who manage U.S.-Ukraine relations, expressing views that do not reflect U.S. policy. Giuliani also may have facilitated the premature recall of U.S. Ambassador Marie Yovanovitch from her post in Kyiv. And while he kept Trump apprised of his activities, Giuliani apparently left other officials guessing about his agenda and the source of his authority.
Among many other legal issues, these developments raise a question about the Appointments Clause: Was it lawful for the president to dispatch an envoy to interface with a foreign government on his behalf, without first seeking the Senate’s advice and consent?
Some might suspect that the president’s reliance on Giuliani was unlawful. After all, the Constitution requires Senate confirmation for a broad range of diplomatic appointments—not only “Ambassadors” but also “other public Ministers.” Giuliani was not an ambassador, but if he was a “public Minister” in his role, then the unilateral manner in which Trump selected him would violate the requirement of Senate advice and consent.
