President Trump has the legal and constitutional authority to name Matthew Whitaker as acting Attorney General, the Justice Department announced Wednesday.
The Justice Department’s Office of Legal Counsel released a 20-page memo detailing the precedent that allows Trump to appoint Whitaker, who served as Chief of Staff for outgoing AG Jeff Sessions, without Senate confirmation.
“This office had previously advised that the president could designate a senior Department of Justice official, such as Mr. Whitaker, as Acting Attorney General,” the memo reads.
“It is no doubt true that presidents often choose acting principal offers from among Senate-confirmed officers. But the Constitution does not mandate that choice. Consistent with our prior opinion and with centuries of historical practice and precedents, we advised that the president’s designation of Mr. Whitaker as Acting Attorney General on a temporary basis did not transform his position into a principal office requiring Senate confirmation.”
“Although an attorney general is a principal officer requiring Senate confirmation, someone who temporarily performs his duties is not,” the opinion continues.
“As all three branches of government have long recognized, the president may designate an acting official to perform the duties of vacant principal office, including a cabinet office, even when the acting official has not been confirmed by the Senate.”
The written legal opinion flies in the face of Democrat leadership who claim Whitaker’s appointment is unconstitutional, such as Rep. Adam Schiff, who is slated to chair the House Intelligence Committee in January.
“I think the court, a neutral court, and I hope that’s what we have, will find that it violates the requirement that a principal officer only be confirmed with the advice and consent of the Senate,” Schiff said Tuesday.
“And there’s some pretty powerful precedent and language from current members of the Supreme Court that I think indicates strongly that this will be struck down.”
Sens. Dianne Feinstein (D-Calif.) and Richard Blumenthal (D-CT) also demanded Whitaker and outgoing AG Jeff Sessions testify before a Senate panel over the law enforcement shakeup.
“The circumstances surrounding Attorney General Sessions’ departure raise serious questions, including whether the appointment is lawful and the possible impact on Special Counsel Mueller’s investigation,” Feinstein wrote in a letter to Senate Judiciary chairman Chuck Grassley (R-IA).
Blumenthal even threatened to sue the Trump administration over Whitaker’s appointment.
“We have been doing a deep dive on potential causes of action concerning the constitutional issues raised by the Whitaker appointment and also obvious obstacles that could be raised to any court initiative, not the least of them standing,” he said last week.
You can read the memo in full below: