DOJ: Acting Attorney General Matthew Whitaker 'unquestionably' authorized to lead department

Kevin Johnson and Bart Jansen | USA TODAY

Show Caption Hide Caption Who is interim attorney general Matthew Whitaker? Matthew Whitaker was previous Jeff Sessions' chief of staff. Sessions submitted his resignation on Wednesday, one day after the 2018 midterm elections.

WASHINGTON – The Justice Department defended President Donald Trump's appointment of acting Attorney General Matthew Whitaker, asserting Wednesday that his senior executive status at the department “unquestionably” authorized him to serve despite his lack of Senate confirmation.

The 20-page opinion issued by Justice’s Office of Legal Counsel based its findings on provisions of the Vacancies Reform Act, which allows for the appointment of a senior staffer who had been in office for at least 90 days. Before his appointment, Whitaker served as chief of staff to Attorney General Jeff Sessions, who was fired Nov. 7.

The opinion was released after Whitaker’s appointment was attacked by Democrats and some Republicans who argued that even an interim replacement for Sessions requires Senate confirmation.

Two Republican former U.S. attorneys general – Michael Mukasey and Alberto Gonzales — questioned the propriety of the appointment because Whitaker hadn't served in a Senate-confirmed position.

Although Justice’s own line of succession provides for the deputy attorney general or other confirmed officials to serve as acting attorney general in the event of a vacancy, the Justice opinion argued that the internal provision for succession “does not displace the president’s authority to use the Vacancies Reform Act as an alternative.”

The opinion said Whitaker’s designation was in keeping with the Constitution, which requires the president to obtain Senate approval before appointing “principal” officers.

“Although an attorney general is a principal officer requiring Senate confirmation, someone who temporarily performs his duties is not,” the opinion said. “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 last time an acting attorney general served without Senate confirmation was in 1866, when Assistant Attorney General J. Hubley Ashton served for six days after the resignation of Attorney General James Speed, according to the report.

The opinion said presidential authority to make such designations dated to the early years of the government, citing 160 appointments before 1860 in which “non-Senate-confirmed persons performed, on a temporary basis,” the duties of secretaries of state, treasury, war, Navy, interior and postmaster general.

“Mr. Whitaker’s designation is no more constitutionally problematic than countless similar presidential orders dating back over 200 years,” the opinion said.

Democrats contended that Whitaker, even if he is permitted to serve, should be recused from overseeing special counsel Robert Mueller's investigation into Russian meddling in the 2016 election. Whitaker was sharply critical of the inquiry and suggested it could be defunded before he joined the department a year ago.

The Justice opinion did not address any issues related to recusal or whether Whitaker’s authority is limited in any way.

Lawmakers criticized Whitaker's appointment and sought to protect Mueller.

Four House Democrats who are likely to lead committees when the new Congress convenes in January announced Wednesday they would investigate Whitaker's involvement with World Patent Marketing, a company that allegedly bilked customers of millions of dollars. Whitaker served on the company's advisory board.

The lawmakers – Elijah Cummings of Maryland on the Oversight and Government Reform Committee, Jerrold Nadler of New York on the Judiciary Committee, Frank Pallone of New Jersey on the Energy and Commerce Committee and Adam Schiff of California on the Intelligence Committee – said "serious questions are now arising about his fitness to serve in this position of trust" after the lack of Senate confirmation.

Sen. Christopher Coons, D-Del., said on MSNBC Tuesday, "Whitaker strikes me as a clear and present danger to the independence of the special counsel."

Sen. Dianne Feinstein, D-Calif., urged the Judiciary Committee to hold a hearing on Whitaker "to ensure that he will take no action to restrict or otherwise interfere" with Mueller's work.

Sen. Jeff Flake, R-Ariz., said he would ask Wednesday for a Senate vote on legislation that would prevent firing Mueller.

“He’s already expressed hostility toward the Mueller investigation," Flake said. "I think that’s a pretty good reason."

Senate Majority Leader Mitch McConnell, R-Ky., said Wednesday that Mueller's investigation is in "no danger" and Whitaker's appointment makes no difference.

“I don’t think any legislation is necessary," McConnell said. "We know how the president feels about the Mueller investigation, but he’s never said he wants to shut it down."

Contributing: Eliza Collins and Cat Hofacker

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