Legal opinion from Justice backs Whitaker as acting AG

WASHINGTON — The Justice Department on Wednesday released an internal legal opinion supporting the legality of Matthew Whitaker’s appointment as acting attorney general as Democrats press the case that President Donald Trump violated the law and Constitution by making Whitaker the country’s chief law enforcement officer.

The 20-page opinion from the Office of Legal Counsel aims to rebut mounting complaints that Trump illegally sidestepped procedure by appointing Whitaker over Deputy Attorney General Rod Rosenstein.

Rosenstein, the secondranking Justice Department official, has been confirmed by the Senate and had been overseeing special counsel Robert Mueller’s Russia investigation. Whitaker had been chief of staff to nowousted Attorney General Jeff Sessions, a job that didn’t require Senate confirmation. He became acting attorney general and was given oversight of Mueller’s inquiry when Sessions was forced out Nov. 7.

Since then, the state of Maryland has challenged Whitaker’s appointment, arguing that the top Justice job must be held by a Senate-confirmed official. A defense lawyer in Las Vegas is arguing a drug case involving his client should be halted if Whitaker was improperly appointed.

Congressional Democrats have called the appointment unconstitutional and demanded that Whitaker recuse himself from the Mueller probe. At least two former Republican attorneys general, Alberto Gonzales and Michael Mukasey, also have raised questions about it.

The opinion concludes that Whitaker, even without Senate confirmation, may serve in an acting capacity because he has been at the department for more than a year at a “sufficiently senior pay level.”

The opinion tries to reconcile two seemingly conflicting statutes by saying that even though the department’s own line of succession specifies that the deputy attorney general may hold the top spot in the event of a vacancy, a more-general law known as the Vacancies Reform Act empowers presidents to promote officials who haven’t been confirmed by the Senate.

The opinion identified more than 160 times before 1860 in which non-Senate officials were temporarily appointed to fill vacancies as Cabinet secretaries or equivalent jobs.