DOJ defends Whitaker’s appointment as constitutional

The Department of Justice (DOJ) in a memo Wednesday defended the legality of Matthew Whitaker’s appointment as acting attorney general.

The 20-page memo comes in the wake of one legal challenge to President Trump’s decision to name Whitaker, who served as former Attorney General Jeff Sessions’s chief of staff, to the interim role after Sessions submitted his resignation at the president’s request last week.

Assistant Attorney General Steven Engel said in the document that the Department of Justice’s Office of Legal Counsel had advised that the president could designate a senior DOJ official, such as Whitaker, as acting attorney general before Sessions resigned on Nov. 7.

{mosads}Maryland Attorney General Brian Frosh and other legal scholars have argued that Whitaker’s appointment is unlawful under a department statute that vests the full authority of the office to the deputy attorney general if the office of attorney general becomes vacant.

But Engel said in the memo that the statute does not displace the president’s authority to use the Vacancies Reform Act as an alternative. He added that Whitaker’s designation as acting attorney general “accords with the plain terms of the Vacancies Reform Act, because he had been serving in the Department of Justice at a sufficiently senior pay level for over a year.”

Maryland and other critics also argue Whitaker’s designation violates the appointments clause of the Constitution, which requires the president to obtain the advice and consent of the Senate before appointing a principal officer.

In the DOJ memo, Engel said Senate confirmation is not required of someone who temporarily performs the duties.

“As all three branches of government have long recognized, the President may designate an acting official to perform the duties of a vacant principal officer, including a Cabinet office, even when the acting official has not been confirmed by the Senate,” he said.

Engel said that while presidents often choose acting principal officers from among Senate-confirmed officers, the Constitution does not mandate it.

He further argued that Whitaker’s appointment is supported by a 1898 Supreme Court ruling. In that case, the court could temporarily appointment someone who has not been confirmed by the Senate for a limited time under special and temporary conditions.

In a court filing on Tuesday, Maryland said that Supreme Court ruling was reasonable, because no one else who met the appointments clause requirements could possibly temporarily fill the vacancy of a consular post in what is now Thailand.

DOJ, however, argued that decision was not limited to the circumstances of a specific case, but instead reflected a broad consensus about the status of an acting principal officer that the Supreme Court has continued to rely on in appointments clause decisions.

“To say that the appointment clause now prohibits the president from designating Mr. Whitaker as Acting Attorney General would mean that the Vacancies Reform Act and a dozen statutes were unconstitutional, as were the countless prior instances of temporary service going back to at least the Jefferson Administration,” Engel said.

–This report was updated at 12:05 p.m.