Acting Attorney General Matthew Whitaker's appointment was constitutional, the Justice Department argues
The Department of Justice on Wednesday released a memo defending President Trump's appointment of Acting Attorney General Matthew Whitaker as constitutional.
When Trump forced Jeff Sessions out of the administration last week and replaced him with Whitaker, it set off some debate over whether the decision was actually legal, with the key concern being that Whitaker has not been confirmed by the Senate. On the one hand, some have argued Whitaker's appointment violates the Appointments Clause of the Constitution, which says principal officers of the United States must be confirmed by the Senate. Others, however, have argued Whitaker's appointment is constitutional and that as long as he's only there on a temporary basis, he doesn't qualify as a "principal officer."
Now, the DOJ's Office of Legal Counsel has weighed in, saying that while "presidents often choose acting principal officers from among Senate-confirmed officers ... the Constitution does not mandate that choice," reports Bloomberg. The memo also argues that Whitaker's appointment is consistent with the Vacancies Reform Act because he was serving in a senior position at the Department of Justice for over a year before Trump selected him, CNN reports. Whitaker was Sessions' chief of staff at the Justice Department up until last week.
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CNN also reports that Trump sought out legal advice about appointing a senior DOJ official as acting attorney general before he fired Sessions, although it's unclear when that conversation took place. Whitaker's appointment is the first time since 1866 that an acting attorney general has been appointed without Senate confirmation, Bloomberg reports.
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