Matthew Whitaker can serve as acting attorney general even though he hasn't been confirmed by Congress, the Justice Department said Wednesday, sparking backlash from legal scholars who say the argument runs counter to the Constitution.
In a 20-page opinion released by the department's legal counsel office, DOJ attorneys argued the so-called Vacancies Reform Act permits the president to pick an unconfirmed official to lead the Justice Department, as long as it's only on a temporary basis.
The opinion cites as precedent Hubley Ashton, an unconfirmed administration official who served as the acting attorney general for six days after Attorney General James Speed resigned in 1866 _ four years before the Justice Department had even been founded.
The DOJ attorneys also leaned heavily on an 1898 Supreme Court decision that permitted President William McKinley to appoint an inferior officer to perform the duties of the U.S. consul general in Siam because the general had fallen ill and was unable to work.
"That holding was not limited to the circumstances of that case, but instead reflected a broad consensus about the status of an acting principal officer," the attorneys said.
The legal counsel's office revealed in the opinion that it had advised President Donald Trump beforehand that he had the authority to appoint an unconfirmed department official, "such as Mr. Whitaker," after he forced Jeff Sessions to resign last week.
As acting AG, Whitaker oversees all aspects of the Justice Department _ including special counsel Robert Mueller's investigation into the president's campaign and its possible coordination with the Russian government during the 2016 election.
Democrats have called on Whitaker to recuse himself from overseeing the Mueller probe, considering his numerous public slights against the inquiry and evident closeness to Trump and the White House. Maryland Attorney General Brian Frosh filed a legal motion Tuesday asking a federal judge to bar Whitaker from serving as acting AG and replace him with Deputy Attorney General Rod Rosenstein, who has been confirmed by the Senate and had up until Whitaker's appointment overseen Mueller's team.
Constitutional scholars agreed with Frosh's take.
Jens David Ohlin, the vice dean of Cornell Law School, said Wednesday's DOJ opinion is persuasive on a statutory level but argued it contradicts the constitutional mandate that requires Cabinet officials be confirmed by the Senate. Whitaker's appointment also violates the federal line of succession that affirms Rosenstein as the rightful acting attorney general pending a permanent replacement, Ohlin said.
Moreover, Ohlin said the 1898 Supreme Court decision that the opinion relies on was reflective of a time era where it would have taken weeks or even months to dispatch a Senate-approved official to take over for the incapacitated consul general in Siam.
"That's not the case here," Ohlin told the New York Daily News, referring to Whitaker. "There are a lot of people who are Senate confirmed within the Justice Department who could have taken over for Sessions immediately. Rod Rosenstein is one of them."
Neal Katyal, a Supreme Court attorney and former acting U.S. solicitor general, pointed out that the office of legal counsel has an intrinsic bias.
"OLC literally writes opinions FOR the Attorney General by law. So this is just Whitaker writing an opinion saying he is constitutional," Katyal tweeted. "And ... this is the best they could find?"
