WASHINGTON -- The Justice Department released a memorandum Wednesday defending the legality of President Donald Trump appointing Matthew Whitaker as acting attorney general -- rejecting criticism from some lawyers that the move violates the Constitution.
Since his appointment last week, some have said 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 Frosh, a Democrat, asked a federal judge to block Whitaker from serving as acting attorney general, arguing that Deputy Attorney General Rod Rosenstein should instead take on the role.
Rosenstein has been confirmed by the Senate and had been overseeing special counsel Robert Mueller's Russia investigation.
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 Vacancies Reform Act.
The memo also notes that before Sessions was forced out of the job, the White House had sought advice from the Office of Legal Counsel and was told Whitaker could be appointed.
"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 memo said.
The memo notes that Trump has now done it six times, and that former President Barack Obama did it twice, and George W. Bush did it once.
The legal opinion also concludes that even if Trump had fired Sessions, he could have replaced him with a non-Senate confirmed government employee for a period of up to seven months. By that reasoning, the president has the power to replace Cabinet-level officials at will and put them in charge of major government branches for half a year or more.
Critics of the Whitaker selection have argued the Vacancies Reform Act should not take precedence over other statutes and the Constitution's formula for replacing senior government officials.
"Few positions are more critical than that of U.S. Attorney General, an office that wields enormous enforcement power and authority over the lives of all Americans," Frosh, the Maryland attorney general, said in a statement Tuesday.
Trump tapped Whitaker to serve as acting attorney general last week after Sessions resigned at the president's request. Whitaker's elevation has raised concerns about his qualifications, his past statements as a U.S. Senate candidate and his business practices.
The legal challenge to Whitaker's appointment comes as part of Maryland's ongoing federal lawsuit that is trying to force the Trump administration to uphold a key provision of the Patient Protection and Affordable Care Act.
Frosh's filing argues that Whitaker's promotion violates the Appointments Clause of the Constitution, which requires "principal" senior officials, such as the attorney general, to be confirmed by the Senate. Maryland also contends that the appointment violates a federal statute that lays out the line of succession and gives authority to the deputy attorney general when the top job is vacant.
U.S. District Judge Ellen Hollander in Baltimore has scheduled a hearing for Dec. 19 on the state's request to declare Whitaker's appointment illegal.
A number of current and former government lawyers have said that while elevating Whitaker to attorney general was unwise and unprecedented, it is not illegal.
A senior Justice Department official said the Office of Legal Counsel's analysis of the practice found 160 such instances in which a non-Senate confirmed official became the acting head of an agency, but the vast majority of those instances came before 1870.
MUELLER INQUIRY
The opinion didn't address the question of whether Whitaker should step aside from overseeing Mueller's investigation into potential coordination between the Trump campaign and Russia.
Some lawmakers have said their broader concern is that Trump named Whitaker, who has publicly criticized Mueller's investigation, to restrict or end the probe. It includes whether anyone close to Trump colluded in Russia's interference in the 2016 presidential campaign and whether the president sought to obstruct justice.
On Wednesday, Arizona Republican Sen. Jeff Flake said he would not vote for any more of Trump's judicial nominees until the Senate votes on a bill to prevent Mueller from being fired -- a pledge that could complicate Republicans' hope to confirm dozens of conservative judges before the end of the year.
Flake's warning will likely force Republicans to rely on Vice President Mike Pence to confirm any of the 32 judicial nominees pending before the full Senate, as panel Democrats are unlikely to vote for those who Flake has committed to oppose. It also means that Republicans will likely have to go around the Senate Judiciary Committee, where the GOP has only a one-seat majority, to advance any of the 21 nominees waiting for that panel's endorsement. That also will require Pence's tiebreaking vote.
Flake issued his threat after Senate Majority Leader Mitch McConnell, R-Ky., blocked Flake and Sen. Chris Coons, D-Del., from holding a vote on the bill, which would give any fired special counsel the ability to swiftly challenge his termination before a panel of three federal judges. Most Republicans -- including co-authors Sens. Thom Tillis, R-N.C., and Lindsey Graham, R-S.C. -- have argued that the bill is unnecessary because Trump would never dare fire Mueller.
Flake challenged that rationale, saying he believes Whitaker should recuse himself from the Russia investigation and let Rosenstein reassume authority over it.
"The president now has this investigation in his sights and we all know it," he said on the Senate floor Wednesday.
"You use what leverage you have," he added later, explaining why he made his threat to block judges to force a vote on the legislation. "This is a priority now."
Flake is retiring at the end of the year, at which point his threat to block judges from being confirmed will no longer complicate the confirmation process. But he and Coons said they hope to persuade other Republicans to join their effort. If one more Republican does, they and the Democrats would be able to prevent Trump from getting any of his judicial nominees confirmed in 2018 -- a move that Flake guessed would at least send a strong message about the importance of the special counsel bill.
"We are confident [the bill] would get 60 votes if given a vote," Coons told reporters. "It is time for us to move from speech to action."
Information for this article was contributed by Devlin Barrett and Karoun Demirjian of The Washington Post; by Chris Strohm of Bloomberg News; and by Eric Tucker of The Associated Press.
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