DOJ Argues Trump Has Authority To Appoint Whitaker As Acting Attorney General

WASHINGTON, DC - AUGUST 29:  (L-R) Department of Justice Chief of Staff Matt Whitaker, the FBI's Kristi Johnson and  U.S. Attorney General Jeff Sessions participate in a round table event with the Joint Interagency Task Force - South (JIATF-S) foreign liaison officers and  at the Department of Justice Kennedy building August 29, 2018 in Washington, DC. Based in Key West, Florida, the JIATF-S  is tasked with stopping the flow of illicit drugs with the cooperation of other agencies and international partners, including Brazil, Canada, Chile, Colombia, Dominican Republic, Ecuador, El Salvador, France, Honduras, Mexico, the Netherlands, Panama, Peru, Spain, Trinidad and Tobago and the United Kingdom.  (Photo by Chip Somodevilla/Getty Images)
Chip Somodevilla/Getty Images North America

The Justice Department’s Office of Legal Counsel on Wednesday released a memo arguing that President Trump’s decision to appoint Matthew Whitaker as acting attorney general did not violate the Constitution.

Whitaker served as ousted Attorney General Jeff Sessions’ chief of staff before stepping into the acting attorney general role, which is not a position confirmed by the Senate, prompting some to question whether Trump had the authority to appoint Whitaker to the position. The state of Maryland has challenged Whitaker’s appointment in court.

In the memo, the Office of Legal Counsel (OLC) argues that Trump has the power under the Vacancies Act to appoint someone other than the deputy attorney general to serve as the acting attorney general. Even though there’s a clear line of succession at the Justice Department, the memo argues that the Vacancies Act allows the President to choose someone other than the deputy attorney general.

The Vacancies Act offers three categories of officials a President can appoint to a Cabinet role. Though Whitaker did not fit the description for the first two categories since he was neither the first assistant to the attorney general nor Senate confirmed, the memo says that the law allows a president to appoint an official who has worked in the agency for at least 90 days at a senior pay level.

“Mr. 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 sufficient senior pay level for over a year,” the memo reads.

The memo also argues that Trump had the authority under the Appointments Clause of the Constitution to appoint Whitaker to the role. The clause requires “principal officers” to be confirmed by the Senate, but the memo argues that because Whitaker is only serving in an acting capacity, he should not be considered a principal officer. The memo also cites Supreme Court cases that the OLC says back up its interpretation of the law surrounding principal officers.

Read the entire memo below:

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