WASHINGTON (AP) – The Justice Department on Wednesday released an internal legal opinion supporting the legality of Matthew Whitaker’s appointment as acting attorney general.
The 20-page opinion from the Office of Legal Counsel, which provides advice to executive branch agencies, is aimed at addressing concerns from Democrats and even some Republicans that President Donald Trump violated the law by naming Whitaker over Deputy Attorney General Rod Rosenstein.
Whitaker had been chief of staff to now-ousted Attorney General Jeff Sessions – a job that didn’t require Senate confirmation. The state of Maryland has challenged Whitaker’s appointment, arguing that the top Justice Department job must be held by someone such as Rosenstein who has been confirmed by the Senate.
A Justice Department official said the White House contacted the Office of Legal Counsel for advice, before Sessions was replaced, about options in the event of a vacancy. The department made the official available to brief reporters only on the condition that the official not be identified by name.
The office said Whitaker, even without Senate confirmation, could serve as attorney general on an acting capacity because he has been at the department for more than a year at a “sufficiently senior pay level.”
One statute laying out the department’s line of succession says a deputy attorney general may hold the top spot in the event of a vacancy. But the legal counsel’s office said a president is not bound by that, and that a different law, the Vacancies Reform Act, allows the president to elevate someone without Senate confirmation.
The opinion identified more than 160 times in which non-Senate officials were temporarily appointed to fill vacancies as Cabinet secretaries or equivalent jobs.
“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 opinion said.
The opinion didn’t address the question of whether Whitaker should step aside from overseeing the special counsel’s investigation into potential coordination between the Trump campaign and Russia.
Many Democrats have called Whitaker to withdraw from the probe being handled by Robert Mueller and his team of prosecutors, citing derogatory comments that Whitaker made about the inquiry before joining the department. The investigation until now had been overseen by Rosenstein.