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, which provides advice to executive branch agencies, aims to rebut mounting complaints that Trump illegally sidestepped procedure by appointing Whitaker over Deputy Attorney General Rod Rosenstein.
Rosenstein, the second-ranking 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 now-ousted Attorney General Jeff Sessions, a job that didn’t require Senate confirmation. He became acting attorney general when Sessions was forced out on Nov. 7 and was given oversight of Mueller’s inquiry.
Since then, the state of Maryland has challenged Whitaker’s appointment, arguing that the top Justice Department job must be held by a Senate-confirmed official such as Rosenstein. A defense lawyer in Las Vegas is similarly arguing that a drug case involving his client should be halted if Whitaker was improperly appointed to lead the department.
Congressional Democrats, meanwhile, have called the appointment unconstitutional and demanded that Whitaker recuse himself from overseeing the Mueller investigation. At least two former Republican attorneys general, Alberto Gonzales and Michael Mukasey, have also raised questions about it, and a handful of GOP senators are urging their leadership to hold a vote on legislation that would protect Mueller.
It was unclear whether the legal opinion would satisfy opponents of Whitaker’s appointment, but the document does provide by far the most detailed defense from the Justice Department of a selection that has roiled Washington.
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.”