President Donald Trump’s appointment of Matthew Whitaker as Acting Attorney General is consistent with the U.S. Constitution and federal statutes, according to the Department of Justice (DOJ).
Trump appointed Whitaker after Attorney General Jeff Sessions resigned on November 7. The President, who has been disappointed in the attorney general for months, requested his resignation.
Arguments against the appointment of Whitaker
Since the announcement of Whitaker’s appointment, some legal experts including George Conway and Neal Katyal argued that the President’s move was illegal and unconstitutional. They noted that the acting attorney general never went through the process of Senate confirmation.
On Tuesday, Maryland Attorney General Brain E. Frosh filed a motion challenging Whitaker’s appointment. Frosh argued that the appointment was “illegal and unconstitutional” and requested the Court to name Deputy Attorney General Rosenstein as Acting Attorney General.
“The Constitution and Congress have established vitally important processes for filling high level vacancies in the federal government. Few positions are more critical than that of U.S. Attorney General, an office that wields enormous enforcement power and authority over the lives of all Americans. President Trump’s brazen attempt to flout the law and Constitution in bypassing Deputy U.S. Attorney General Rosenstein in favor of a partisan and unqualified staffer cannot stand,” said Frosh.
The legal challenge prompted the DOJ to release a memo providing legal justification for Whitaker to serve as acting attorney general.
DOJ’s legal justifications
According to the DOJ, Whitaker’s designation is consistent with the plain terms of the Vacancies Reforms Act. The agency noted that its “organic statute provides that the Deputy Attorney General (or others) may be Acting Attorney General in the case of a vacancy. However, it “does not displace the President’s authority to use the Vacancies Reform Act as alternative.”
Additionally, the Justice Department said Whitaker’s designation is consistent with the Appointments Clause of the U.S. Constitution since it is temporary. The agency noted that Presidents before 1860 appointed non-Senate confirmed persons to serve temporarily on high offices as Secretary of State and other Cabinet positions. In 1866, a “non-Senate-confirmed Assistant Attorney General served as Acting Attorney General.”