Matthew Whitaker Can Legally Serve as Acting Attorney General, Justice Department Says

Trump’s DOJ says Whitaker can serve in acting role without Senate confirmation

By Sadie Gurman

Nov. 14, 2018 10:00 a.m. ET

Matthew Whitaker can properly serve as acting attorney general without Senate confirmation, the Justice Department said in a legal opinion released Wednesday, though the document is unlikely to end the debate over Mr. Whitaker’s installation as the country’s top law-enforcement officer.

The Justice Department argues Mr. Whitaker’s appointment was lawful under a statute called the Vacancies Reform Act, according to the 20-page opinion from the department’s Office of Legal Counsel, which offers advice to the executive branch but whose guidance doesn’t carry the force of law.

President Trump named Mr. Whitaker to replace Jeff Sessions, whom he ousted last week, in a move critics have said is a potentially invalid run around the Constitution’s provision that the Senate has the authority to provide “advice and consent” on senior executive-branch nominations.

The new document is unlikely to end the court challenges to the temporary appointment, which allows Mr. Whitaker to hold the position for 210 days, or roughly seven months, or potentially longer if a nomination for a permanent replacement has been made.

Department officials had previously advised the White House that Mr. Trump could designate Mr. Whitaker as acting attorney general, a senior Justice Department official said Wednesday.

“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 department wrote in its opinion.

In addition to debate about the legality of his appointment, Mr. Whitaker faces questions about his oversight of Special Counsel Robert Mueller’s investigation into alleged Russian interference in the 2016 elections. Mr. Whitaker criticized the investigation publicly before coming to the Justice Department as Mr. Sessions’ chief of staff.

Democrats have called for him to step aside from the investigation, and even some Republican lawmakers have urged him not to limit the scope of the Mueller probe.

The final decision on whether Mr. Whitaker’s appointment is permissible may ultimately rest with the Supreme Court and its view of the president’s appointment powers.

Sauce: https://www.wsj.com/articles/matthew-whitaker-can-legally-serve-as-acting-attorney-general-justice-department-says-1542207612