Whitaker must protect Justice Department
President Trump’s appointment of Matt Whitaker as acting attorney general has generated controversy among scholars, members of congress and the public. Now the controversy has moved to the courts. The central question is whether an acting attorney general, with all the power and authority of a Senate-confirmed attorney general, is a principal officer and thus required under our constitution to be an individual presently holding a position with the consent of the Senate.
The attorney general is charged by statute to advise the executive branch on legal matters. That authority has been delegated by the attorney general to the Office of Legal Counsel in the Justice Department, and the legal opinions of the OLC are binding on the executive branch. In my previous government positions I relied upon, and was guided by, OLC opinions. So, I accept the OLC’s judgment that the Whitaker appointment is lawful even though he is not Senate confirmed. I do so with understanding that OLC opinions are sometimes wrong and overruled by the courts.
While the appointment may be lawful there are some who believe it is not in the best interests of the Justice Department. For almost two years the department has been under siege with constant and public criticism by the president of both then-Attorney General Jeff Sessions and of the Mueller investigation into Russian interference in the 2016 presidential election.
To their credit, DOJ employees have stayed above the drama and distractions. But one has to wonder why the president is willing to add the additional controversy of the Whitaker appointment when there are Senate-confirmed appointees in the line of succession at the Justice Department who are capable of serving as acting attorney general. The interim appointment of Deputy Attorney General Rod Rosenstein (next in the line of succession), for example, certainly would not have generated the type of second guessing, or litigation, as the Whitaker appointment.
At the core of most of the concern over the appointment is Whitaker’s authority to now oversee the Mueller investigation; an investigation that the acting attorney general has openly questioned and criticized. Whitaker’s previous statements would appear to call into question his open-mindedness with respect to this investigation. Justice Department rules regarding recusal from a matter are intended to preserve the integrity of an investigation and to safeguard the reputation of the Justice Department from even the appearance of bias or prejudgment. A prosecutor’s desire to oversee a prosecution — even one who is the acting attorney general — must always give way to the needs of the Department.
As a general matter I recognize the president’s authority to decide who serves in the executive branch. There may be legitimate legal authorities and precedents that I am unaware of which support the Whitaker appointment. Furthermore, the president may be aware of circumstances and hidden talents that make Whitaker uniquely qualified and absolutely necessary for this interim appointment. However, until such information is revealed there are certain assurances Whitaker could provide that further affirm his commitment to the Justice Department and demonstrate his fidelity to the rule of law.
Alberto R. Gonzales, former U.S. attorney general, is the dean and Doyle Rogers Distinguished Professor of Law at Belmont University College of Law.