The Department of Justice released a 20-page long opinion Wednesday morning detailing the legality of President Trump's appointment of former U.S. Attorney Matthew Whitaker as acting attorney general. The appointment came last week after Attorney General Jeff Sessions was asked to resign.
According to attorneys at DOJ, Whitaker's appointment is valid and legal under the Vacancies Reform Act, the Appointments Clause and complies fully with the U.S. Constitution.
"As we have previously recognized, the President may use the Vacancies Reform Act to depart from the succession order," the memo states. "We also advised that Mr. Whitaker's designation would be consistent with the Appointments Clause of the U.S. Constitution, which requires the President to obtain 'the Advice and Consent of the Senate' before appointing a principal officer of the United States. Although an Attorney General is a principal officer requiring Senate confirmation, someone who temporarily performs his duties is not. 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 acting official has not been confirmed by the Senate."
The memo has been released by DOJ after legal questions arose when Deputy Attorney General Rod Rosenstein was not chosen to take over for Sessions. Whitikar was appointed by President Trump instead after serving as Sessions' chief-of-staff at the Department. He now oversees Robert Mueller's Special Counsel investigation into the 2016 presidential election. Whitikar was Senate confirmed years ago when he served as U.S. Attorney for the Southern District of Iowa under President George W. Bush, but not for his current position.
DOJ is also arguing there is plenty of precedent to justify Whitaker's appointment.
“The one thing the opinion makes clear is that we provide a wealth of history that demonstrations that over 150 persons were designated as acting officers as heads of departments,” a senior DOJ official told reporters on a phone call Wednesday morning. “There’s a long history of this...President Trump has done this five times before, so did President Obama.”
"There have been just dozens and dozens of examples going back," the official continued. "We found Thomas Jefferson exercising authority that had been given to George Washington designating acting power to the Secretary of War...There have been acting Secretaries of State that have not been Senate confirmed."
In compliance with the law, Whitaker can serve as acting attorney general for as long as 210-days.