The Justice Department’s Office of Legal Counsel issued a new ruling Wednesday that President Donald Trump’s designation of an acting attorney general is “lawful” under federal law and the Constitution. A senior Justice Department official confirmed to reporters the published ruling originated with a request by the White House, specifically White House counsel Emmet Flood, to determine whether the president could designate Matt Whitaker, previously the chief of staff to Attorney General Jeff Sessions, the acting attorney general on the occasion of Sessions’s resignation.
Sessions resigned as attorney general last week after a request by President Trump that he do so. The designation of Whitaker, who was not confirmed by the United States Senate for his current tenure in the Justice Department, has drawn criticism from those who say even his acting role as a principal officer is unconstitutional. Whitaker’s designation has also drawn scrutiny from those concerned the lawyer and Republican operative might have been selected in order to end or limit the special counsel investigation.
The OLC opinion finds that Whitaker’s designation “comports with the terms of the Vacancies Reform Act,” which authorizes the president to put someone into an acting role for a vacancy of a Senate-confirmed position. The opinion also found there are more than 150 precedents of such designations of temporary replacements for principal officers. But the most recent example the opinion could cite for non-Senate confirmed official working as acting attorney general on the occasion of a vacancy was in 1866, a six-day tenure for an assistant attorney general following the resignation of the attorney general. This happened before the establishment of the Department of Justice in 1870.
Asked if there are limits to the responsibilities of the acting attorney general under this temporary designation, a senior DOJ official declined to comment. The official also declined to comment on when the White House requested the OLC’s opinion on this question.
Update: The opinion is embedded below.
