Appointing Whitaker as Acting Attorney General Was Legal, Justice Dept. Says

November 14, 2018 Updated: November 14, 2018

The Justice Department issued a legal opinion on Nov. 14 which concludes that President Donald Trump acted lawfully and within his authority when he appointed Matthew Whitaker to serve as the acting attorney general.

Trump designated Whitaker to serve in place of Jeff Sessions, who resigned from the attorney general’s post at the president’s request on Nov. 7. Democrats challenged Trump’s move, arguing that he violated the Constitution.

The state of Maryland challenged Whitaker’s appointment in court on Nov. 13. Maryland’s legal filing argued in part that Trump violated the Constitution’s appointments clause because the position of attorney general, as a “principal officer,” must be confirmed by the Senate.

In a memorandum sent to the White House on Nov. 14, Steven Engel, an assistant attorney general at the Justice Department’s Office of Legal Counsel, wrote that the law doesn’t apply to temporary replacements.

“Although an Attorney General is a principal office requiring Senate confirmation, someone who temporarily performs his duties is not,” Engel wrote.

The memo reveals that Trump was advised by the Justice Department on who he may choose as an acting attorney general. The 20-page opinion (pdf) offers a methodical exploration of the laws and precedents related to the appointment to defend the legality of Trump’s decision.

“Mr. Whitaker has been designated based on a statute that permits him to serve as Acting Attorney General for a limited period, pending the Senate’s consideration of a nominee for Attorney General,” Engel wrote, adding that the designation is consistent with an opinion the department issued in 2003 and with “two centuries of practice.”

The Justice Department argued that the Federal Vacancies Reform Act allows Trump to appoint a non-Senate confirmed official to temporarily carry out the duties of a principal officer. According to Engel, there have been at least 160 instances before 1860 in which a non-Senate confirmed person performed the duties of high offices.

Congress took away a president’s power to appoint non-Senate confirmed officials into high offices in the late 1860s, but that authority was restored in 1998 with the Federal Vacancies Reform Act, the senior Justice Department official said.

The official said Republican former President George W. Bush used the law at least once and Democratic former President Barack Obama used it at least twice. Trump has now used it six times.

Whitaker served as the chief of staff for Sessions before he was designated to temporarily lead the department. Trump has said that he has not met Whitaker personally and chose him based on his reputation.

Sessions was part of Trump’s campaign before the president appointed him to lead the Justice Department. Sessions drew Trump’s ire by recusing himself from the Russia investigation.

Deputy Attorney General Rod Rosenstein oversaw the Russia investigation by special counsel Robert Mueller until Whitaker took over the reins. Trump frequently criticizes Mueller’s probe, calling it a “hoax.”

Mueller is tasked with investigating allegations of collusion between the Trump campaign and Russia, and other related matters. Although Mueller has indicted several Trump campaign associates, none have been accused of colluding with Russia.

Whitaker has previously taken issue with the scope of Mueller’s investigation, prompting Democrats to suggest that he may limit or end the probe. Rosenstein appointed Mueller in May 2017 after Trump fired FBI Director James Comey.

State of Maryland officials argued that Rosenstein should have succeeded Sessions under a federal law that vests full authority in the deputy attorney general should the office of attorney general become vacant. A hearing on Maryland’s litigation has been scheduled for Dec. 19. Days after Trump’s announcement, Democrats launched efforts to oppose Whitaker.

Democratic Senate Majority Leader Chuck Schumer demanded that Whitaker recuse himself from the Russia investigation.

“We’ve heard that Mr. Whitaker is meeting with DOJ ethics officials this week, and we expect that Congress will be notified about the results of those discussions,” Schumer wrote on Twitter on Nov. 13.

Senate Judiciary Committee Chairman Chuck Grassley dismissed calls for Whitaker’s recusal. Asked if he was concerned about Whitaker’s comments about the Russia probe, Grassley told ABC: “As long as he made them as a private citizen, no.”

A group of Democrats sent seven letters on Nov. 14 demanding information on Whitaker’s role with World Patent Marketing, a company that agreed to pay nearly $26 million to settle allegations that it deceived consumers and suppressed complaints.

Reuters contributed to this report.

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