Whitaker legal, the feds insist

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, its 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 department 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.

Constitutional scholars scoffed at the department’s argument.

Jens David Ohlin, the vice dean of Cornell Law School, said the opinion 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 Deputy Attorney General Rod 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 in which 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 said, referring to Whitaker. “There are a lot of people who are Senate confirmed within the Justice Department who could have taken over for Jeff Sessions immediately. Rod Rosenstein is one of them.”

Speculation has swirled that President Trump circumvented Rosenstein and installed Whitaker because of his well-documented criticism of special counsel Robert Mueller.

A senior Justice Department official told the Daily News on Wednesday that, prior to forcing Sessions to resign last week, Trump had been advised he had the authority to appoint an unconfirmed department official, like Whitaker.