Reporter focusing on national security and law enforcement
November 14 at 12:05 PM
The Justice Department released a memorandum Wednesday defending the legality of President Trump appointing Matthew G. Whitaker as acting attorney general — rejecting criticism from some lawyers that the move violates the Constitution.
Since his appointment last week, some have charged that Whitaker, who served as the chief of staff to the previous attorney general, Jeff Sessions, is not legally eligible to serve as the head of the Justice Department because he is not a Senate-confirmed official.
On Tuesday, Maryland Attorney General Brian E. Frosh, a Democrat, asked a federal judge to block Whitaker from serving as acting attorney general, arguing that Deputy Attorney General Rod J. Rosenstein should instead take on the role.
The Justice Department’s Office of Legal Counsel, which provides legal guidance to the federal government, said in a 20-page memo that past practice, court rulings and legal analysis show that the Whitaker appointment is legal. In particular, it says the scenario is expressly authorized by the 1998 Federal Vacancies Reform Act.
The memo also notes that before Sessions was forced out of the job, the White House had sought advice from the OLC and was told that Whitaker could be appointed.
“As all three branches of government have long recognized, the president may designate an acting official to perform the duties of a vacant principal office, including a Cabinet office, even when the acting official has not been confirmed by the Senate,” the memo said.
The memo notes that Trump has now done it six times, while then-President Barack Obama did it twice and that then-President George W. Bush did it once.
Interestingly, the legal opinion also concludes that even if Trump had fired Sessions, he could have replaced him with a non-Senate-confirmed government employee for a period of up to seven months, or more if a nomination was pending. By that reasoning, the president has the power to replace Cabinet-level officials at will and put them in charge of major government branches for half a year or more.
Critics of the Whitaker selection have argued that the Federal Vacancies Reform Act should not take precedence over other statutes and the Constitution’s formula for replacing senior government officials.
“Few positions are more critical than that of U.S. Attorney General, an office that wields enormous enforcement power and authority over the lives of all Americans,” Frosh, the Maryland attorney general, said in a statement Tuesday.
Trump tapped Whitaker to serve as acting attorney general last week after Sessions resigned at the president’s request. Whitaker’s elevation has raised concerns about his qualifications, his past statements as a U.S. Senate candidate and his business practices.
The legal challenge to Whitaker’s appointment is part of Maryland’s ongoing federal lawsuit that is trying to force the Trump administration to uphold a key provision of the Affordable Care Act.
Frosh’s filing argues that Whitaker’s promotion violates the appointments clause of the Constitution, which requires “principal” senior officials, such as the attorney general, to be confirmed by the Senate. Maryland also contends that the appointment violates a federal statute that lays out the line of succession and gives authority to the deputy attorney general when the top job is vacant.
A number of current and former government lawyers have said that while elevating Whitaker to attorney general was unwise and unprecedented in the last 150 years, it is not illegal.
The OLC’s legal analysis of the practice found 160 such instances — all of them occurring before 1860 — in which a non-Senate-confirmed official became the acting head of an agency. In 1866, a non-Senate confirmed assistant attorney general served as an acting attorney general, according to the memo.
“Mr. Whitaker’s designation is no more constitutionally problematic than countless similar presidential orders dating back over 200 years,” said the OLC memo signed by Assistant Attorney General Steven A. Engel.
Concerns about Whitaker’s appointment stem partly from unanswered questions about what, if anything, the new acting attorney general may do to try to steer the ongoing probe of Russian interference in the 2016 election. The investigation has also focused on whether any Trump associates conspired with Russia to interfere with the election.
That probe, led by special counsel Robert S. Mueller III, has been supervised by Rosenstein, the No. 2 Justice Department official, because Sessions had been recused from the case when he was attorney general.
Whitaker, according to people close to him, has no intention of recusing from the Russia probe, although Justice Department officials have said he will follow normal department procedures for any possible ethics issues.
Concerns about the Russia probe’s independence have prompted renewed efforts in Congress to pass legislation that would prevent Mueller from being fired without cause.
On Wednesday, aides to Sen s. Christopher A. Coons (D-Del.) and Jeff Flake (R-Ariz.) said they would attempt to force a vote on one such measure, though the chances are slim a vote will indeed occur because legislative rules say that an objection from a single senator could prevent it.
The Special Counsel Independence and Integrity Act states that Mueller could be removed only for good cause by a Senate-confirmed Justice Department official, with the reason for his removal put in writing. The bill would also allow for courts to review any decision to remove Mueller to determine if the cause was justified.
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