Whitaker Can Legally Serve as Acting Attorney General Even Without Senate Confirmation, Internal Legal Opinion Released by DOJ Claims

The U.S. Department of Justice has reportedly released an internal legal opinion dismissing concerns over the legality of Matthew Whitaker's recent appointment as acting attorney general.

In the 20-page document prepared by the Office of Legal Counsel (OLC), which provides advice to executive branch agencies, the opinion asserts that even without Senate confirmation, Whitaker would be able to serve as attorney general in an acting capacity because he has been with the Justice Department for more than a year at "sufficiently senior pay level," the Associated Press has reported.

The legal opinion comes in response to concerns raised by Democrats and even some Republicans that President Donald Trump's decision to name Whitaker as a replacement for Attorney General Jeff Sessions over Deputy Attorney General Rod Rosenstein may have violated the law.

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Department of Justice Chief of Staff Matt Whitaker (right) participates in a roundtable event with the Joint Interagency Task Force South (JIATFS) foreign liaison officers at the DOJ’s Kennedy building, in Washington, D.C., on August... Chip Somodevilla/Getty

The legal counsel's office said that was not the case, however, asserting that while a deputy attorney general may hold the top spot within a department if the role becomes vacant, the president is not obligated to follow that process.

It further asserted that the 1998 Federal Vacancies Reform Act would allow the president to elevate a potential candidate even without Senate confirmation.

"As all three branches of government have long recognized, the President may designate an acting official to perform the duties of a vacant principal office, including a Cabinet office, even when the acting official has not been confirmed by the Senate," the opinion said, according to AP.

It also reportedly went on to identify more than 160 cases in which non-Senate officials were temporarily appointed to fill senior roles.

According to The Washington Post, the memo said that the White House had already sought advice from the OLC and was told that Whitaker could be appointed.

The OLC's opinion did not make mention whether Whitaker should recuse himself from oversight of special counsel Robert Mueller's ongoing investigation into Russian meddling in the 2016 election and possible collusion between Russia and the Trump campaign team, however.

Much of the outrage over Whitaker's appointment comes over fears that the former DOJ chief of staff's appointment could spell trouble for Mueller's investigation.

The now-acting attorney general appears to have taken advice from senior ethics officials on the possibility of recusing himself however, with a statement from Kerri Kupec, spokesperson for the Department of Justice, saying that Whitaker was "fully committed to following all appropriate processes and procedures at the Department of Justice, including consulting with senior ethics officials on his oversight responsibilities and matters that warrant recusal."

Whitaker's predecessor, Sessions, recused himself from oversight of the investigation last year, citing his participation in Trump's campaign. The decision prompted outrage from Trump, who continued to complain about Sessions' actions until the former attorney general was asked by the president to hand in his resignation.

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About the writer


Chantal Da Silva is Chief Correspondent at Newsweek, with a focus on immigration and human rights. She is a Canadian-British journalist whose work ... Read more

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