Whitaker Appointment by Trump Is Legal, Justice Department Says
(Bloomberg) -- The Justice Department issued a legal opinion Wednesday justifying President Donald Trump’s decision to bypass normal procedures and name Matthew Whitaker as acting attorney general.
The opinion from the department’s Office of Legal Counsel came after the state of Maryland asked a federal judge on Tuesday to rule that Whitaker’s appointment wasn’t legitimate because he hasn’t been serving in a government position that was confirmed by the Senate.
The 20-page legal opinion disputed that argument, which has been advanced by Democrats in Congress and some legal experts.
“It is no doubt true that Presidents often choose acting principal officers from among Senate-confirmed officers,” the opinion states. “But the Constitution does not mandate that choice."
The opinion written by Steven Engel, assistant attorney general for the Office of Legal Counsel, described Whitaker’s appointment as “consistent with our prior opinion and with centuries of historical practice and precedents.”
Whitaker, who was chief of staff to Attorney General Jeff Sessions, took control of the Justice Department on Nov. 7 after Trump pushed out Sessions the day after midterm elections.
Democrats have said their broader concern is that Trump named Whitaker, who has publicly criticized Special Counsel Robert Mueller’s Russia investigation, to restrict or end the probe. It includes whether anyone close to Trump colluded in Russia’s interference in the 2016 presidential campaign and whether the president sought to obstruct justice.
The department’s line of succession called for Deputy Attorney General Rod Rosenstein to serve as acting attorney general. Rosenstein appointed Mueller and has supervised and supported his investigation. Whitaker has said the investigation risks becoming a “witch hunt,” echoing Trump’s favorite term to denounced the probe.
Trump sidestepped Rosenstein by invoking a provision in the Federal Vacancies Reform Act to install Whitaker. That law lets a president name someone to a post on an acting basis if he or she served in a senior capacity within the department for at least 90 days. Whitaker came into the department in September 2017.
This is the first time since 1866 -- before the department was officially created -- that someone has been installed as acting attorney general who wasn’t already serving in a Senate-confirmed position, according to a Justice Department official.
Critics argue that Whitaker shouldn’t be permitted to serve as acting attorney general because he hasn’t been confirmed by the Senate during Trump’s presidency. He was confirmed in 2004 to serve as U.S. attorney for the Southern District of Iowa but left government service in 2009.
Senator Dianne Feinstein, the top Democrat on the Judiciary Committee, called Tuesday for hearings on Whitaker’s appointment.
“The circumstances surrounding Attorney General Sessions’s departure raise serious questions, including whether the appointment is lawful and the possible impact on Special Counsel Mueller’s investigation,” she said.
In the Maryland case, U.S. District Judge Ellen Hollander in Baltimore has scheduled a hearing for Dec. 19 on the state’s request to declare Whitaker’s appointment illegal. In a pending lawsuit over the Affordable Care Act, Maryland Attorney General Brian Frosh on Tuesday sought a ruling that Whitaker wasn’t appointed to the acting attorney general post in accordance with the law and that Rosenstein should oversee the department.
©2018 Bloomberg L.P.