Justice Dept. releases legal memo defending Whitaker's appointment as acting attorney general

[DonViejo]

Source: The Washington Post

By Devlin Barrett November 14 at 10:00 AM

The Justice Department released a memorandum Wednesday defending the legality of President Trump appointing Matthew G. Whitaker as acting attorney general -- rejecting criticism from some lawyers that the move violates the Constitution.

Since his appointment last week, some have charged that Whitaker, who served as the chief of staff to the previous attorney general, Jeff Sessions, is not legally eligible to serve as the head of the Justice Department because he is not a Senate-confirmed official.

On Tuesday, Maryland Attorney General Brian E. Frosh, a Democrat, asked a federal judge to block Whitaker from serving as acting attorney general, arguing that Deputy Attorney General Rod J. Rosenstein should instead take on the role.

The Justice Department's Office of Legal Counsel, which provides legal guidance to the federal government, said in a 20-page memo that past practice, court rulings and legal analysis show that the Whitaker appointment is legal. In particular, it says the scenario is expressly authorized by the 1998 Federal Vacancies Reform Act.


Read more: https://www.washingtonpost.com/world/national-security/justice-dept-releases-legal-memo-defending-whitakers-appointment-as-acting-attorney-general/2018/11/14/9c51e834-e813-11e8-b8dc-66cca409c180_story.html

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UPDATE:

Justice Department Memo Declares Matt Whitaker Appointment Is Legal

Democrats contend that he needed to be in a Senate-confirmed position to take over as acting attorney general.

Betsy Woodruff
11.14.18 10:00 AM ET

-snip-

A senior Justice Department official who briefed reporters on the memo said DOJ lawyers told the White House a sufficiently senior Department official who received high enough pay would be eligible to take over as attorney general. The official declined to share more detail about the nature of the White House’s communications with the Department.

The Office of Legal Counsel (OLC) is simultaneously one of the most secretive and most powerful arms of the Justice Department. Its battalion of attorneys assess thorny legal issues and issues memos that govern government agencies. And most of the time, those decisions are secret.

In this case, though, OLC is going public with its memo determining that the Trump administration had the power to install Whitaker—the former chief of staff for Sessions—as acting AG. Whitaker’s appointment instantly drew criticism because of a host of comments he made as a TV pundit lambasting Special Counsel Robert Mueller.

Before being made the head of the Justice Department, Whitaker did not occupy a Senate-confirmed position. As a result, a host of legal experts, including former Solicitor General Neal Katyal, argued his appointment violated the Senate’s Constitutional right to provide advice and consent to the executive branch. Over the weekend, Democratic Senators huddled and discussed whether to sue over the appointment.

more
https://www.thedailybeast.com/justice-department-memo-declares-matt-whitaker-appointment-is-legal?ref=home

[sakabatou]

1. WTF?

[ScratchCat]

2. Good god, folks

The Deputy AG is to serve as AG in the event that the AG resigns or is fired, until the Senate confirms a new AG. That is part of his job. That why he is DAG. That is why Rosenstein is overseeing the Russia Probe. The President doesn't just get to pick whoever he wants and then not nominate a new AG. There is procedure and policy here. The President can't fire a Senate-confirmed cabinet member and just appoint whoever he wants to an indefinite period and not nominate a successor. Someone needs to ask, "Why hasn't Trump nominated a replacement yet?"

[agingdem]

3. this is the justice department that trump gutted...ok

so the sycophants and those too afraid to lose their jobs say Whitaker as acting AG is just great...nothing illegal or untoward here...uh huh...yup I'll take their word for it...

[Canoe52]

4. Is this the same justice department that ok'd water boarding?

[Ccarmona]

10. Interesting Enough John Yoo Wrote the Waterboarding Opinion In 2003 for the DOJ Claiming

That it could be used outside the US. The same John Yoo wrote the opinion last week that Whitaker’s hiring was unconstitutional

https://www.theatlantic.com/ideas/archive/2018/11/whitaker-cant-take-officeand-that-helps-mueller/575770/

[mastermind]

5. A memorandum means nothing

has no weight, no pull, its just a fancy way of saying, look, I've got nothin so here's this piece of paper.

[onenote]

8. It may not have "weight" but it reflects the argument that the government will present in court

to defend the Whitaker appointment.

The Office of Legal Counsel has long had the authority to issue opinions on questions of law when requested by the President or the heads of Executive Branch departments.

Courts generally do not give "deference" to OLC opinions; so the real question is whether the case presented by the OLC is stronger than the case presented by the Maryland Attorney General. I think its a close call, but I wouldn't be surprised if a court sided with the OLC position since in many ways it avoids difficult questions that are raised by the state of Maryland's brief. For example, the Maryland brief, which argues that the specific statutory provision(28 USC 508) allowing the Deputy AG to perform the duties of the office of the Attorney General when that office is vacant takes precedence over the Vacancies Reform Act options asserts that under Section 508, Congress has, in essence, stripped the President of any role in naming someone to carry out, on a non-time limited basis, the duties of the Attorney General. On its face, that argument would appear to run headfirst into the Appointments Clause, which clearly indicates that it is the President's role to appoint principal officers and the Senate's role to confirm (or reject) those appointments. The OLC position avoids issues that would arise regarding the constitutionality of Section 508 by arguing that the Vacancies Reform Act alternatives, which are time limited, allow the appointment of someone to carry out the duties of a principal officer on a temporary basis without Senate confirmation. While that argument is not without its own flaws, it probably gives the courts an easier out than the Maryland argument.

[INdemo]

6. The justice department is not a court of law and this could have bee drafted by

the White House Councel and signed or approved by this Justice Department...Some this really fishy here.

This is like the statement by Kavanagh drafted by the White House Counsel

[onenote]

7. Here is a link to the memo

just in case someone wants to read it before passing judgment on it.

http://cdn.cnn.com/cnn/2018/images/11/14/acting.ag.op.pdf

[Marcuse]

9. Thanks. Whittaker cannot be the AG nominee, but is poised to be a temp crisis manager/hatchet man.

Has Whittaker even pretended to recant his uninformed partisan public pronouncements?

I remember when the appearance of bias within the DOJ/FBI was considered disqualifying.

[Gothmog]

11. This memo is weak

Link to tweet

[Yo_Mama_Been_Loggin]

12. Of course they do

They can claim anything before it's litigated.