Nov 14, 2018, 11:45 AM ET

DOJ defends Whitaker's appointment as acting attorney general as legal, constitutional

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A week after President Donald Trump forced Jeff Sessions to step down from heading the Justice Department and appointed Matthew Whitaker as acting attorney general, the DOJ has now authored a memo defending Whitaker's appointment as legal and constitutionally valid.

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The high-level appointment of Whitaker -- a frequent critic of special counsel Robert Mueller's probe who was not confirmed by the Senate before joining the Justice Department last year as chief of staff to Sessions -- has prompted both Democrats and even some Republicans to cry foul.

But in a 20-page memo Wednesday to White House counsel Emmet Flood, the Justice Department's Office of Legal Counsel says, "Mr. Whitaker's designation as Acting Attorney General accords with the plan terms of the Vacancies Reform Act," which states that when cabinet members and other senior government officials are "unavailable" to fulfill their duties, the president can appoint other government officials to temporarily serve in the positions if those replacements are sufficiently senior and have been employed by the government for at least 90 days.

Speaking to reporters Wednesday on the condition of anonymity, a senior Justice Department official said the Justice Department provided the legal analysis at the behest of the White House -- but the official refused to say when the White House asked if appointing Whitaker would be constitutional.

Further, the memo argues that Trump could have appointed Whitaker whether Sessions voluntarily resigned or was explicitly fired by Trump.

"Doesn't that mean that, in theory, the president under your interpretation could fire anyone he wants and ... just make anyone a Cabinet official?" a reporter asked the Justice Department official.

"I don't want to address hypotheticals," the official responded, "[but] it is correct that if the president terminates officials, that official is unavailable under the Vacancies Reform Act."

A lawsuit filed by the state of Maryland on Tuesday is challenging the constitutionality of Whitaker's appointment, insisting the Constitution and U.S. law require that someone acting as attorney general and other "principal" positions be confirmed by the Senate.

But the Justice Department disputes that.

"Although an Attorney General is a principal officer requiring Senate confirmation, someone who temporarily performs his duties is not," the head of the Office of Legal Counsel, Assistant Attorney General Steve Engel, wrote in the memo released Wednesday. "It is no doubt true that Presidents often choose acting principal officers from among Senate-confirmed officers. But the Constitution does not mandate that choice."

Engel's memo says that previous administrations, including under Presidents Barack Obama and George W. Bush, have similarly appointed non-Senate confirmed officials to positions that report directly to the president.

However, asked whether someone not confirmed by the Senate has ever been appointed acting attorney general, the Justice Department official, speaking on the condition of anonymity, said, "The best examples we found were in 1866" -- four years before the Justice Department was created.

The official would not say whether the Office of Legal Counsel has advised Whitaker over whether he should recuse himself from overseeing Mueller's investigation.

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  • james

    Well there you go folks. The acting head of the DOJ just said that it is perfectly legal and constitutional for him to be appointed as acting head of the DOJ. You just can't get a better legal decision than that.

  • Broken

    No other President has appointed an AG with no Senate confirmation.

  • Annie

    Whitaker is just another slime ball to add to the Washington Roach Parade.

  • Shakuntala

    So, he wrote a memo saying his appt was ok? huh?

  • Broken

    Any bets Whitaker wrote his own memo, declaring his appointment Constitutional?

  • Broken

    Yeah, the Constitution allows Senate confirmation to be skipped if your name is Donald Trump.

    Because you won by the most Electoral votes ever! Right?

    The fact that no other President has tried to install an unconfirmed AG is THEIR problem, right Donald?

  • jake

    Anything from a Trump appointed or controlled department is suspect by default. If Trump's DOJ said parking on this block is legal from 9pm to 6am, I would still park on another block. Mueller I would trust since he wasn't appointed by Trump. It's not the career people in the DOJ I don't trust, it's just anyone in a position of authority appointed by Trump that is highly suspect!

  • Sundown

    Trump has repeatedly shown us he cares nothing for laws, Congress, the American people, and the Constitution. Nothing the idiot malignant narcissist says does surprises me.

  • Trench Ant

    So instead of moving through the line of succession of those with Senate confirmation and practical experience in the department (as should happen and why it is there), the orange would-be dictator chooses the non-Senate-confirmed chief of staff of the man he fired. You all know what a chief of staff is right? The heading might sound choice, but he is a glorified stooge that acts as a buffer/mouthpiece/guard/advisor/sounding board/secretary between the head honcho to the rest of department. At the least, any appointment should have to go through an extensive background check. And this choice of temporary appointment, Whitaker, would NOT pass a background check. He is under FBI investigation right now!

  • hound

    Whitaker is "presently" the boss of the DOJ, and the memo came from the DOJ??? Hmmmm.....
    Did the DOJ write the memo while Sessions was still the boss?

  • Truthfully

    Emmet Flood wrote the 20 page memo?? Isn't Flood trump's lawyer? So trump's lawyer writes the DOJ memo? Doesn't sound like it makes sense. But what does make sense with the corrupt trump presidency??

  • Mr Wayne

    Of course they defend him. If they want to keep their job they had better agree with Trump. It is his justice department. If you don't believe me ask Trump or his supporters.

  • Citizen-Not-Subject

    It was an excellent hypothetical question. Under this view of the constitutional requirements, it would be perfectly constitutional for the President to nominate an AG, get him/her confirmed, then fire him/her the next day and fill the position with anyone he wants with no Senate approval. And then just continue to it over and over again. It is impossible to see this as the intent of the Founders. But with this Administration, all Constitutional requirements seem to be out the window.

  • Clyde Delgato

    Did anyone honestly expect Trump's justice department to say anything else? Seems like a lot of news these days is from Captain Obvious.

  • FoxDI

    Trumps DOJ believes that Trump's appointment to lead the DOJ is constitutional, ok. The courts are the final word on this.

  • lou g

    So DOJ affirms that Trump is always right?

  • Bluejay

    "we did nothing wrong because we say so"
    -the DOJ

  • concernedvoter

    We can pretty much guess that the memo was written at the request of Trump and his new stooge Whitiker.. just like Don Jr's Airforce 1 Trump drafted memo about the non-russian meeting at Trump Towers.. LOL .. what a bunch of crooks..

  • WhosVoice

    What a weak argument Emmet makes. "Mr. Whitaker's designation as Acting Attorney General accords with the plan terms of the Vacancies Reform Act," which states that when cabinet members and other senior government officials are "unavailable" to fulfill their duties, Sessions was available until he was fired. The Vacancies Reform Act list several reasons it can be implemented being fired isn't one of them.

  • stamped human bacon

    Reminiscent of Deputy AG John Yoo and his torture memos from W's administration - Legitimizing the illegitimate.

  • NewsJunkie12

    How stupid does Trump think the country is? The problem is that Trump himself knows nothing about everything. He thinks his lackey will find away to slow walk the Muller investigation and strangle it in the crib. He doesn't seem to realize that the new House has the right to demand any documents they want in the consitutional charge to check the executive branch and investigate him, Mueller in his job or not. In fact, the last thing Trump should want is Citizen Mueller, instead of Special Council Mueller, called before the House under Oath to spill the beans, with no restraints of office to hold him back.

  • Tony Radcliffe-Hung

    Basically what we get with Trump is this:

    A wanna-be Putin trying to pull a dictatorial coup and drag us in the direction of authoritarianism, and before long with his flawed personality, fascism. Only Trump is not a murdering ex-KGB agent; he's a not very bright, spoiled man-child who apparently believes the right is more racist than even the left did, and is probably more in debt to Putin than we'll ever know (but I sure hope we come to know). He divides for political gain as a true (and despicable) demagogue trying to enrich and powertrip his family, which has now become a desperate power grab in progress.

    If love of life, liberty and pursuit of happiness are still alive in this nation, it will not stand a Donald Trump much longer.

  • Bud Simpson

    I wonder if Whitaker will look into the Trump U. scam?

  • Anthony

    Whether the appointment is legal/constitutional is besides the point. If a legally/constitutionally appointed official interferes with an investigation, it is still obstruction of justice.

  • Bud Simpson

    What, the DOJ, which Trump now has under his thumb, has decided that Trump's appointment is totally legal? Even though the appointee has a criminal background and hasn't been approved by the Senate...sounds about right for the worst the White House administration in my 72 years.

  • Bluejay

    "Everything we do is legal"

    -The mafia and the DOJ

  • JeffMillerFL

    Some organization will take it to the courts. It can't be legal - the position is for Senate-approved persons only.

  • djl

    Only a surprise to those unable to read.

  • JeffMillerFL

    trump lackey Flood writes the legal cover for Fake AG Whitaker. What a joke.

  • cephalo

    Why go through a confirmation process at all? Just keep hiring people.

  • Justbkind16

    Everything will come out regardless of whether he obstructs this investigation or not. Contingency plans have already been put in place. Mueller is no dummy. So, in essence, he is just doing himself a disservice if he does anything to hinder this investigation.

  • John bailey

    He will be faced with a decision to allow the investigation to move forward or obstruct/limit what is being done. The thing he must remember is that siding with trump is a crap shoot that will destroy your career and good name. trump is not loyal and will use people for his own benefit. you may think you will get something out of helping him, but in the end, you will find yourself on the wrong side. Just ask Michael Cohen.

  • aquablue13

    So many chicken littles complaining the sky is falling on one post. A conspiracy everywhere you look apparently. Hope you all close your bedroom closet doors tight so the monsters don't come out tonight, not sure what you should do about the ones under your beds.

  • mik8888

    It is a fine line here certainly, but I do believe a temporary appointment is legal by the definition of 'temporary'. It really is a tough call, but if he actively tries to interfere with Mueller, that could very easily be called, "crossing the line"...

  • stamped human bacon

    For yet another incredible and unethical appointment, check the record on Trey Glen, now head of the EPA's southeastern district.

    Alabama wanted to bring him up on criminal ethics violations.

    Trump picks the best, all right - the best criminals. Thank you again, congressional Republicans. Your complicity does not go unnoticed.

  • Fatesrider

    So the DOJ decides what's legal for the DOJ? I recall they said the exact same thing about waterboarding and even about the unconstitutional monitoring by the intelligence agencies.

    Funny how they're wrong so often.

    While I expect the biased SCOTUS to support that, it only proves the GOP had destroyed the legal system (again) in America, but this time, the damage is much more longer lasting. I've said it before, once the citizens of a country no longer trust the impartiality and objectivity of their legal system, that government doesn't tend to last very long.

  • concernedvoter

    Trump and his crime family make Nixon look like a Choir Boy... Nixon wasn't in Bed with Putin and the Russians..

  • stamped human bacon

    Constitutional? Perhaps
    Unethical? Definitely.

  • concernedvoter

    A President is supposed to be a President and not attack the Press or our institutions like the FBI, DOJ or State Dept.

  • morty harenza

    I can't help but like him. He is the Aryan Nation, skin head, SS, Gestapo and hot tub salesman all "warped" into one. Donnie, as usual tops the charts again.

  • John Cram

    I love how Trump hires only the "best people" yet NONE of them last.

    If you are Republican and don't find that pathetic, well all I can say is keep watching Faux News as only they can somehow spin this into something "good"!

  • Nearl56 12

    How convenient.

    Well, you know what they say about opinions...

  • Bronx

    Look at it this way: Those in DOJ will get the McCabe treatment if they suggested otherwise.

    Its not like their opinion is free and independent from the fake boss's influence. They are subject to retaliation and
    harassment from above.

    Only those who are already prepared to walk out the door can challenge him from within.

  • Robin Shuman

    Corporations are people and politicians can't be bribed, so says Citizens United and the 5-4 so-called supreme court !

  • Outwest64

    First Trump knows this guy well, and now doesn't know him at all.
    Not a good look for the president, but one we've come to expect.
    His base, of course, will remain oblivious...

  • NuuJuce

    If Trump is involved, of course it's illegal. It'a probably amoral as well.

  • Thomas

    The DOJ saying that the president has done nothing illegal is like a defense attorney proclaiming that their client is innocent.

    I want to hear what the Judicial Branch has to say about the legalities of this.

  • concernedvoter

    At least the Nixon Family can finally rest in peace knowing this Orange Imbecile will have forever overshadowed anything Nixon ever did and will forever be known as the worst most despised US President to have ever serverd in our Great White House..

  • concernedvoter

    The biggest Problem Trump has besides being a crook, liar and womanizer is that he cannot grasp the concept that he is not everyone's boss, that he is not the king of the USA and he is not a Dictator. He just cannot grasp the checks and balances concept our founding fathers put in place for just such a wannabee Tyrant.. Thankfully we have taken back our House from the spineless GOP Congressmen who have been enabling Trump in lock step with the Sellout GOP Senators..

  • Stephen Bishop

    About time for Trump to deem himself totally vindicated again.

  • Andy1

    That from a DOJ memo. I'm shocked.

  • John bailey

    Lock all of them up quick, fast and in a hurry.

  • drathvedar

    Trump wanting to be a dictator. Pure and simple.

  • Powderedtoastman

    Supposedly, he has looked into recusing himself from the Russia probe. I'd laugh my azzzz off if he did. Trump would go ballistic.

  • John Galt

    So if Whiteattacker is guilty of criminal misconduct from cheating investors, does he have to recuse himself from that investigation or does the law from 1866 say even the most corrupt politicians are OK?