Justice Department memo says Trump had legal authority to appoint Whitaker as acting AG
President Donald Trump/Albert H. Teich (Shutterstock.com).
The appointment of Matthew Whitaker as acting attorney general complied with federal law and the Constitution’s appointments clause, according to a memo written by the chief of the Department of Justice’s Office of Legal Counsel.
The Nov. 14 memo by Steven Engel says the Office of Legal Counsel had previously advised the White House that a senior Justice Department official such as Whitaker could be appointed to temporarily take the place of Attorney General Jeff Sessions, who resigned at the president’s request on Nov. 7. The Washington Post, the National Law Journal, BuzzFeed News, the Wall Street Journal and the New York Times have coverage.
Whitaker’s appointment was authorized by the Federal Vacancies Reform Act of 1998, a federal law governing the appointment of temporary officers in the executive branch, according to the memo.
The law allows the president to designate any person to fill a department vacancy on an acting basis if the person had a senior position in the department for at least 90 days in the prior year, the memo said. The official generally can serve for up to seven months, or longer if a nomination for a permanent replacement has been made, according to the Wall Street Journal.
The memo acknowledged that a different federal law, the Attorney General Succession Act, also governed the appointment of an acting attorney general. Engel said Trump could make the appointment under either law.
Engel also said the appointment did not violate the appointments clause, which generally requires “principal officers” of the United States who report directly to the president be appointed with the advice and consent of the Senate.
Engel said the acting attorney general is not a “principal officer” within the meaning of the clause. “Although an attorney general is a principal officer requiring Senate confirmation,” Engel wrote, “someone who temporarily performs his duties is not.”
Before he became acting attorney general, Whitaker was Sessions’ chief of staff, a job that did not require Senate confirmation.
Engel said all three branches of government have long recognized that the president can temporarily designate an acting official to perform the duties of a vacant office—even a cabinet-level office—when the official has not been confirmed by the Senate.
The state of Maryland challenged the appointment of Whitaker in a motion filed Tuesday in a lawsuit seeking to uphold key provisions of the Affordable Care Act. Maryland argued Whitaker is a principal officer, and he should not be appointed because he wasn’t confirmed in his chief of staff job. The state also says the Attorney General Succession Act trumps the broader Federal Vacancies Reform Act.
Maryland contends that Deputy Attorney General Rod Rosenstein should be the acting attorney general under the Attorney General Succession Act. Rosenstein went through the Senate confirmation process for the deputy attorney general position.
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