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DOJ says Matt Whitaker appointment is legal, similar to Bush and Obama picks

November 14, 2018

President Trump’s designation of acting Attorney General Matthew G. Whitaker is legal, and similar appointments have happened more than 160 times over the country’s history, including once in the Bush administration and twice under President Barack Obama, the Justice Department’s Office of Legal Counsel said Wednesday.

A senior department official said Mr. Trump had sought an opinion before Attorney General Jeff Sessions was asked to resign last week, and the OLC the government’s chief internal legal voice said the president could choose a senior official, even if he or she hadn’t been confirmed by the Senate.

The OLC then published 20-page opinion Wednesday giving more detail on that decision.

“What we’re talking about here is the constitutional question. The question is, can Congress provide the president with this authority,” the official said, briefing reporters. “The Vacancies Reform Act unequivocally does provide the president with that authority.”

Mr. Whitaker’s designation has become a major flashpoint in the week since it happened.

Congressional Democrats fear he will curtail the ongoing special counsel’s investigation into the 2016 election, Russian meddling, and Trump campaign figures’ behavior.

Maryland Attorney General Brian Frosh, a Democrat, has already filed a motion in an ongoing case asking a judge to invalidate Mr. Whitaker’s designation and to proactively install Deputy Attorney General Rod Rosenstein as the acting attorney general, blocking Mr. Trump from making a pick.

Mr. Frosh and other Trump opponents say that laws governing the Justice Department list the deputy attorney general as the natural successor if the attorney general is no longer in office.

But the OLC opinion says those laws aren’t exclusive. The OLC said it’s opined as far back as 2007, well before Mr. Trump was president, that the Vacancies Reform Act could also be used to designate an acting chief. The OLC concluded at that time, and still maintains today, that the president can trigger the VRA.

Trump critics say a bigger question than the law is the Constitution.

The point to a clause that suggests principal officers must be confirmed by the Senate.

“We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design,” Neal K. Katyal, a former high-ranking Obama administration litigator, and George T. Conway III, husband to White House advisor Kallyanne Conway, wrote in a New York Times op-ed last week.

“Constitutionally, Matthew Whitaker is a nobody. His job as Mr. Sessions’s chief of staff did not require Senate confirmation. ... For the president to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document,” the two lawyers wrote.

The OLC, though, found more than 160 instances before the Civil War of officials who didn’t have Senate confirmation still serving as secretaries of State, Treasury, War and Interior. They also found an assistant attorney general, who was not Senate-confirmed, serving as acting attorney general in 1866.

“Mr. Whitaker’s designation is no more constitutionally problematic than countless similar presidential orders dating back over 200 years,” wrote Steven A. Engle, the assistant attorney general who signed the OLC opinion.

He also pointed to three instances during the Obama administration when the president elevated a chief of staff at a federal agency to be acting head, placing them over another Senate-confirmed official.

Mr. Obama also named non-Senate-confirmed people in 2009 to serve as acting secretary at the Labor Department and acting administrator at the Small Business Administration, the OLC said.

And President George W. Bush named someone without Senate confirmation to serve as acting director of the White House Office of Management and Budget, the opinion says.

None of those actions sparked the debate Mr. Whitaker’s designation has. Nor did they implicate an ongoing investigation that’s already earned guilty pleas from some former Trump campaign figures.

The senior Justice Department official briefing reporters declined to speak about whether there were any limitations on Mr. Whitaker’s powers as acting attorney general, such as whether he can claim oversight of special counsel Robert Mueller’s investigation.

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