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Justice Dept. defends legality of Trump’s appointment of Whitaker

Acting Attorney General Matthew G. Whitaker as he spoke to state and local law enforcement officials in Des Moines, Iowa, Tuesday, on a day when the Justice Department defended the legality of his appointment by President Trump.
Acting Attorney General Matthew G. Whitaker as he spoke to state and local law enforcement officials in Des Moines, Iowa, Tuesday, on a day when the Justice Department defended the legality of his appointment by President Trump. Steve Pope/Getty Images

WASHINGTON — The Justice Department pushed back Wednesday against accusations that President Trump’s appointment of Matthew G. Whitaker as acting attorney general was illegal, arguing that it complied with both federal statutes and the Constitution — and that it fit within a history of similar designations dating back to the earliest days of the country.

The Trump administration made its case in a 20-page memorandum by Steven E. Engel, the head of the department’s Office of Legal Counsel. It came a day after the state of Maryland asked a US District Court judge to issue an injunction declaring that when Trump ousted former Attorney General Jeff Sessions, the role of acting head of the department passed instead to the deputy attorney general, Rod J. Rosenstein, as a matter of law.


But even as the Trump administration offered its most fulsome argument to date that Whitaker’s designation as acting head of the Justice Department was lawful, it continued to sidestep questions about whether ethics rules required Whitaker to recuse himself from overseeing the special counsel investigation by Robert Mueller into whether Trump’s associates conspired with Russia in its election interference.

Whitaker has been an outspoken critic of the investigation, making clear that he has already decided that no Trump associates conspired with Moscow’s election disruption. He unsuccessfully interviewed in 2017 for the job of the White House’s top lawyer defending against the inquiry, and is friends with Sam Clovis, a witness in the investigation.

Top congressional Democrats sent a letter to the Justice Department’s ethics chief, Lee J. Lofthus, demanding any analysis or advice he gave Whitaker about whether to recuse, but they have received no response.

On Wednesday, Senate Majority Leader Mitch McConnell blocked two senators from bringing up legislation to protect Mueller’s investigation from any efforts by the Trump administration to thwart it.


Republican Senator Jeff Flake and Democrat Chris Coons had said they would push the measure after Trump fired Attorney General Jeff Sessions and tossed out more than a century of precedent to name Whitaker as acting attorney general.

Flake, who is retiring at the end of this year, said following McConnell’s objection that he and Coons will try “again and again” to bring the measure to the floor. Flake said he will refuse to advance any judicial nominees in the Judiciary Committee or confirm any judges on the Senate floor until the Mueller bill is brought to the floor for a vote.

“The president now has this investigation in his sights and we all know it,” said Flake of Arizona.

Earlier Wednesday, McConnell told reporters the legislation is unnecessary, saying he hasn’t heard the president or others threaten the Mueller probe despite Trump’s displeasure with it.

Also on Wednesday, several leading House Democrats announced an investigation into Whitaker’s involvement with World Patent Marketing, a defunct company accused of defrauding customers of millions of dollars before a judge shut it down last year.

Engel’s memo, released on Wednesday, addressed only the legal issues related to Whitaker’s appointment. It laid out a vision for sweeping presidential power to temporarily replace any Senate-confirmed official and install in his or her place a person outside the normal order of succession and who has not undergone Senate vetting.

The memo was dated Wednesday but Engel wrote that his office had verbally advised the White House that the president had lawful authority to designate someone like Whitaker as the acting successor to Sessions before he resigned under pressure last week.


Trump’s selection of Whitaker to be the nation’s top law enforcement official has drawn two types of legal criticism from commentators and in the Maryland court filing.

The state rejected Engel’s analysis, said Rachel Coombs, a spokeswoman for Maryland’s attorney general, Brian E. Frosh. “Of course we disagree with the memo and the reasons we disagree are outlined in our motion filed yesterday,” she wrote in an e-mail Wednesday.

Critics have made a legal argument against Whitaker’s appointment. Congress has enacted a law that addresses the order of succession for attorney general. It says that the deputy attorney general — Rosenstein — takes over as acting head of the department in the case of a vacancy. But Trump installed Whitaker under a provision of the Vacancies Reform Act of 1998, a separate law that applies to the executive branch in general.

Critics of the appointment have argued that the more specific law that addresses the Justice Department makes the position of attorney general an exception to the procedures listed in the more general Vacancies Reform Act. But Engel argued that the better interpretation was that the president can pick either option.

In support of that argument, he cited litigation over disputes involving the position of acting general counsel for the National Labor Relations Board and the acting head of the Consumer Financial Protection Board. In those cases, lower-court judges ruled that the Vacancies Reform Act mechanisms for temporarily filling vacancies remained available as an alternative to other statutes that specifically addressed those offices.


under the Constitution’s appointments clause, only an official whom the Senate confirmed for his or her current position can be temporarily elevated to acting attorney general. Whitaker did not require confirmation for his previous role as Sessions’ chief of staff.

But Engel argued that Supreme Court precedent and historical practice showed that when the position of a principal officer — one who is very senior and powerful, and which normally requires confirmation, like attorney general — is vacant, someone who has not been Senate-confirmed may temporarily fill it.