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WASHINGTON – Justice Canada should issue a legal opinion in support of the installation of Matthew Whitaker as Acting Attorney General on Tuesday, said one person aware of the problem, after asking if he could legally perform his duties.
The office of the ministry's legal adviser should say that President Trump had the ability to appoint Mr. Whitaker, the person said. Mr. Whitaker took over last week as interim replacement for former Attorney General Jeff Sessions, following Mr. Trump's overthrow of Mr. Sessions.
The notice should support the Trump administration's position that the President's authority over Mr. Whitaker's recruitment is confirmed by the office's guidelines issued in 2003. On that date, the office concluded that President George W. Bush could appoint an unconfirmed employee from the Office of Management and Budget as acting director of the agency.
The director of the OMB, like the Attorney General, is one of the principal agents of the federal government. The 2003 notice avoided this problem by defining an acting director as a "lower officer" who, under a Supreme Court precedent, does not need the approval of the Senate to be appointed.
Critics from all walks of life have argued that Mr. Whitaker's appointment constitutes a potentially invalid bar to the ability of the Senate to provide advice and consent to senior appointments. Others said Mr. Whitaker's appointment was legal under a law called the Vacancy Reform Act.
In addition, others claim that Mr. Whitaker's relationship with a witness in Specialist Robert Mueller's investigation into Russia's interference in the 2016 elections and his critical comments about this inquiry raise questions about her impartiality and ability to supervise her. The special council is designed to be isolated from political considerations.
The opinion of the Office of the Legal Counsel is not likely to stifle the debate about Mr. Whitaker's leadership. The appointment could still be the subject of a court challenge that, if successful, could invalidate the actions that Mr. Whitaker takes as Acting Attorney General. Acting officials are often seen as substitutes who do not pursue any political initiative until the Senate confirms a permanent staff member.
Although it was short-lived, the appointment of Mr. Whitaker, who was Mr. Sessions' chief of staff, could have serious consequences, including for the Mueller investigation.
Congressional Democrats on Monday urged the Justice Department to detail any ethics advice Mr. Whitaker had asked for or received since taking office, including questions about his control of the Russia inquiry.
"The officer in charge of the special advisor's investigation must be – in fact and apparently – independent and impartial. Unfortunately, Mr. Whitaker's statements reveal a clear bias against the investigation that would cause a reasonable person to question his impartiality, "the Democrats wrote.
The Department of Justice did not respond to requests for comments on the letter.
Congress is preparing to return to Washington on Tuesday for the first time since the mid-term elections on November 6, when Democrats took control of the House and Republicans maintained a slim majority in the Senate. With the control of a chamber, Democrats will be able to conduct investigations and issue subpoenas. Several party leaders have announced plans to investigate Mr. Whitaker's appointment.
Many Republicans say they are not very concerned about the appointment of Mr. Whitaker or his earlier comments critical of the Mueller probe. "I am confident that Mr. Mueller will be allowed to do his job without interference," said Sunday Senator Lindsey Graham (R., S.C.), a senior member of the Senate Judiciary Committee, at CBS.
The Democrats' letter was signed by Representative Nancy Pelosi of California and Senator Chuck Schumer of New York, respectively by Democratic leaders in the House and Senate. The leading Democrats on the Judiciary and Intelligence Committees of the House and Senate also signed the letter, as did the Democrat's main House oversight and reform committee.
A challenge to Mr. Whitaker's appointment could land in the Supreme Court. In recent years, the court has struck down several appointments to the leadership of the National Labor Relations Board, including the appointments of President Obama to the board of directors during a brief break in the Senate in 2012, and his decision to appoint in 2011 the general counsel of the board continued to hold this position on an acting basis.
These decisions have called into question hundreds of decisions made by current officials and forced the agency to review them. Legal experts said the Justice Department probably kept these decisions in mind when it informed Mr. Whitaker of any action he could take. A spokeswoman for the Department of Justice declined to say whether the legal counsel's office had asked if Mr. Whitaker's actions could be invalidated.
The Federal Bureau of Investigation is conducting a criminal investigation against a Florida company, World Patent Marketing Inc., accused of defrauding millions of customers during the period when Mr. Whitaker was a paid member of the Wall Street Journal. reported. As Attorney General, Mr. Whitaker has authority over the FBI, which is a component of the Department of Justice. The Department of Justice said Whitaker was not aware of any fraudulent activity.
Mr. Whitaker headed a conservative non-profit political organization and frequently appeared on cable television as a legal commentator before becoming Mr. Sessions' chief of staff.
Mr. Trump praised Mr. Whitaker but also moved away from him.
-Aruna Viswanatha contributed to this article.
Write to Sadie Gurman at [email protected] and Byron Tau at [email protected]
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