Assistant attorney general for the Office of Legal Counsel Steven Engel has written a 20-page memo arguing President Trump has the right to appoint Matthew Whitaker acting attorney general even though he is not a Senate-confirmed official. The memo comes on the heels of the state of Maryland seeking on injunction that requests a federal judge replace Whitaker with Deputy Attorney General Rod Rosenstein.
Since his appointment last week, some have charged that Whitaker, who served as the chief of staff to the previous attorney general, Jeff Sessions, is not legally eligible to serve as the head of the Justice Department because he is not a Senate-confirmed official.
On Tuesday, Maryland Attorney General Brian E. Frosh, a Democrat, asked a federal judge to block Whitaker from serving as acting attorney general, arguing that Deputy Attorney General Rod J. Rosenstein should instead take on the role.
The Justice Department’s Office of Legal Counsel, which provides legal guidance to the federal government, said in a 20-page memo that past practice, court rulings and legal analysis show that the Whitaker appointment is legal. In particular, it says the scenario is expressly authorized by the 1998 Federal Vacancies Reform Act.
Steven Engel, assistant attorney general for the Office of Legal Counsel, said ... that his office told the White House — before Whitaker was appointed — that the president "could designate a senior Department of Justice official, such as Whitaker, as acting attorney general."
That advice was offered "after the White House asked what the president's option would be in the event the office of attorney general was vacant and who might be eligible to serve," a senior Justice Department official said.
(...)
The Justice Department's Office of Legal Counsel has weighed in before on the president's legal authority to use the Vacancy Act to bypass the department's normal order of succession and pick someone not in line to move up. But that opinion, written in 2007 after the resignation of Alberto Gonzales as attorney general, assumed that the president's pick already held a Senate-confirmed job.
A senior Justice Department official said the OLC’s legal analysis of the practice found 160 such instances in which a non-Senate-confirmed official became the acting head of an agency, but the vast majority of those instances came before 1870.
Justice Dept. releases legal memo defending Whitaker’s appointment as acting attorney general (WaPo)
Justice Department defends Whitaker appointment as acting attorney general (NBC News)