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Devlin Barrett
A journalist specializing in national security and law enforcement
The Justice Department on Wednesday issued a memorandum defending the legality of President Trump naming Matthew G. Whitaker as Acting Attorney General, dismissing criticism by some lawyers that the movement would violate the Constitution.
Since his appointment last week, some have accused Whitaker, who was chief of staff of former Attorney General Jeff Sessions, of not being legally empowered to head the Department of Justice because he was not not a confirmed official of the Senate. .
[Read the Justice Department memo about the Whitaker appointment]
On Tuesday, the Attorney General of Maryland, Brian E. Frosh, a Democrat, asked a federal judge to prevent Whitaker from acting as Acting Attorney General, arguing that Deputy Attorney General Rod J. Rosenstein should rather assume this role.
The Office of the Legal Counsel of the Department of Justice, which provides legal advice to the federal government, said in a 20-page memo that past practice, court decisions and legal analysis show Whitaker's appointment is lawful. In particular, the scenario is expressly authorized by the 1998 Federal Law on Vacancy Reform.
The note also notes that before sessions were forced to leave their post, the White House had sought advice from OLL and had learned that Whitaker could be named.
"As the three branches of government have long recognized, the president may appoint an acting head to assume the duties of a vacant head office, including a cabinet firm, even though the acting head n & # 39; 39, has not been confirmed by the Senate, "says the memo. .
The note notes that Trump has already done six times, while President Barack Obama has done it twice and that President George W. Bush has already done it once.
It is interesting to note that the legal opinion also concludes that even if Trump had dismissed sessions, he could have replaced him with a government employee not confirmed by the Senate for up to seven months, or longer if a appointment was pending. According to this reasoning, the President has the power to replace at will the members of the Cabinet and to entrust them with the main branches of government for six months or more.
[Maryland challenges legality of Whitaker appointment as attorney general]
Critics of the Whitaker selection argued that the federal law on vacancy reform should not take precedence over other statutes and the Constitution's formula to replace senior officials.
"Few positions are more critical than the US Attorney General's, an office that has tremendous power of repression and authority over the lives of all Americans," said Frosh, the Attorney General of Maryland, in a statement.
Trump has asked Whitaker to act as Acting Attorney General last week after the resignation of Sessions at the request of the President. The rise of Whitaker has raised concerns about his qualifications, his previous statements as a candidate in the US Senate and his business practices.
The legal challenge to Whitaker's appointment is part of the federal government's ongoing lawsuit in Maryland, which is attempting to force the Trump administration to enforce an essential provision of the Affordable Care Act.
Frosh's record contends that the Whitaker promotion violates the Constitution's nomination clause, which requires "senior" officials, such as the Attorney General, to be confirmed by the Senate. Maryland also contends that the appointment violates a federal law that defines the line of succession and gives power to the Deputy Attorney General when the highest position is vacant.
A number of government lawyers and former government lawyers have stated that while Whitaker had become unscrupulous and unprecedented Attorney General for 150 years, it was not illegal.
The OLC's legal analysis of practice revealed 160 cases of this kind – all of which occurred before 1860 – in which an untrained official in the Senate had become acting head of an agency. In 1866, a deputy attorney general not confirmed by the Senate served as Acting Attorney General, according to the memo.
"Mr. Whitaker's appointment is no more constitutionally problematic than countless similar presidential orders dating back more than 200 years," said the COL memo signed by Deputy Attorney General Steven A. Engel.
Concern over the appointment of Whitaker stems in part from unresolved questions about what the new Acting Attorney General could possibly do to try to guide the ongoing investigation into Russia's interference in the 2016 elections. The investigation also focused on whether Trump's associates conspired with Russia to interfere in the elections.
This investigation, led by special advocate Robert S. Mueller III, was overseen by Rosenstein, the Justice Department's official No. 2, as the sessions had been challenged while he was Attorney General.
According to his family, Whitaker does not intend to recuse himself from the investigation of Russia, although officials at the Justice Department said he would follow the normal procedures of the ministry for any possible problems with the investigation. 'ethics.
Concern over the independence of the Russian investigation prompted Congress to redouble its efforts to enact legislation that would prevent Mueller from being fired without cause.
Wednesday, Sen's helpers. Christopher A. Coons (D-Del.) And Jeff Flake (R-Arizona) said that they would try to force the vote on any of these measures, although the odds are slim a vote will occur because the legislative rules provide that only one senator could prevent it.
The Law on the Independence and Integrity of Special Advocates stipulates that Mueller can only be removed for just cause by a senior official of the Ministry of Justice confirmed by the Senate, specifying in writing the reasons for his appointment. impeachment. The bill would also allow the courts to review any decision to dismiss Mueller to determine whether the case was justified.
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