The U.S. Justice Department on Wednesday defended the legality of President Donald Trump’s appointment of Matthew Whitaker as acting attorney general, which bypassed the usual line of succession at the agency.
In a 20-page internal legal opinion, the agency’s Office of Legal Counsel said Trump could “depart from the succession order” and name Whitaker instead of Deputy Attorney General Rod Rosenstein, then the second in command at Justice when the president last week ousted Attorney General Jeff Sessions. The 49-year-old Whitaker had been serving as Sessions’ chief of staff.
Whitaker’s appointment has proved controversial because he, unlike Sessions, is now overseeing special counsel Robert Mueller’s investigation of Trump’s 2016 campaign’s links to Russia and whether Trump, as president, obstructed justice by trying to thwart the probe.
Before becoming the country’s top law enforcement official, Whitaker disparaged the Mueller investigation and suggested that a replacement attorney general, such as he is now, could derail the probe by cutting off funding to it so that it “grinds almost to a halt.”
Democratic opponents of Trump, and some Republicans, have expressed fears that Whitaker will try to undermine Mueller’s probe or even fire him before his investigation is completed.
Sessions had removed himself from the Mueller oversight because he was a staunch Trump advocate in the election campaign two years ago and had met with Russia’s then-ambassador to Washington in the months leading up to the national election. He delegated Mueller oversight to Rosenstein.
Trump had long complained about Sessions removing himself from the Mueller oversight and said he never would have appointed him as attorney general if he had known in advance he was going to recuse himself, which Sessions said he was required to do by Justice Department rules prohibiting involvement of officials in cases where they had a conflict of interest.
The Justice Department opinion supporting Trump’s right to name Whitaker as acting attorney general took no position on whether Whitaker will recuse himself from Mueller oversight because of his pointed views on the probe before he joined the Justice Department more than a year ago.
While one U.S. law would call for Rosenstein to take the top job at Justice when Trump dismissed Sessions, the legal opinion said Trump could rely on a separate statute that allows temporary appointments of officials without confirmation by the Senate, as would normally be required for the head of a government agency. The legal opinion cited more than 160 instances in which a U.S. president has appointed non-Senate confirmed officials to temporarily fill high-level positions.
The eastern state of Maryland on Tuesday challenged the legality of Trump’s appointment of Whitaker, saying it violated federal law and that Rosenstein should be installed to follow what it said would be the agency’s normal succession rules.
Maryland Attorney General Brian Frosh, a Democrat, said the state is challenging the Whitaker appointment on two grounds, claiming Justice Department succession rules called for Rosenstein to become attorney general and that Whitaker, as the agency’s “principal officer,” must be confirmed by the Senate.
“The Attorney General’s succession statute and the Constitution protect the country against exactly what President Trump has attempted to do here — pluck an unqualified and unconfirmed partisan to be the nation’s chief law enforcement officer in order to protect himself rather than the rule of law,” Frosh said in a statement.