WASHINGTON (CN) — The Justice Department released an internal legal opinion Wednesday that it says supports the legality of Matthew Whitaker’s appointment as acting attorney general.
The Office of Legal Counsel’s opinion is aimed at addressing widespread concerns that President Donald Trump violated the law by naming Whitaker over Deputy Attorney General Rod Rosenstein.
Whitaker had been chief of staff to now-ousted Attorney General Jeff Sessions — a job that didn’t require Senate confirmation.
On Tuesday, the state of Maryland challenged Whitaker’s appointment, claiming it is illegitimate and that under the Acting Attorney General Succession Act and other statutory requirements found in the U.S. Constitution, must be rescinded.
A Justice Department official says the White House contacted the Office of Legal Counsel for advice — before Sessions was replaced — about options in the event of a vacancy.
Steve Engel, assistant attorney general and head of the Office of Legal Counsel, wrote in the 20-page opinion that the constitutionality of Whitaker’s designation is supported by “Supreme Court precedent, by acts of Congress passed in three different centuries and by countless examples of executive practice.”
According to Engel, the last time a non-Senate-confirmed assistant attorney general was installed was in 1866 – a full four years before the Justice Department was formed. But Congress first authorized the president to appoint non-Senate-confirmed officials even earlier than that, in 1792, according to the opinion.
“In that year, Congress authorized the president to ensure the government’s uninterrupted work by designating persons to perform temporarily the work of vacant offices,” Engel wrote.
At least 160 times since 1860, officials not confirmed by the Senate have temporarily performed the duties of officials in significant positions within the State, Treasury, and Interior Departments.
“Mr. Whitaker’s designation is no more constitutionally problematic than countless similar presidential orders dating back over 200 years,” Engel wrote.
The opinion argues Whitaker’s appointment should also survive any challenges that rely on the Vacancies Reform Act. Under that legislation, Engel says several factors authorized Trump to select Whitaker.
First, Whitaker was not the first assistant to Sessions, a role which would have expressly barred him from replacing the outgoing attorney general. Nor was Whitaker already holding a Senate-confirmed office.
He was previously approved by the Senate when he became U.S. attorney for the Southern District of Iowa, a post he resigned in 2009. At the time of his resignation, according to the opinion, Whitaker was serving in a position appointed to him by the attorney general and because of that, he falls “squarely” within the approved category of officials outlined by the Vacancies Reform Act.
The opinion doesn’t address the question of whether Whitaker should step aside from overseeing the special counsel’s Russia investigation.
Also on Wednesday, U.S. District Judge Ellen Hollander set a Dec. 19 motion hearing in Maryland’s challenge to Whitaker’s appointment.