The Department of Justice (DOJ) released a memo Wednesday defending the constitutional basis for the appointment of Matthew Whitaker as Acting Attorney General.
The memo was written by Assistant Attorney General Steven Engel of the DOJ Office of Legal Counsel. The Office of Legal Counsel serves as the principle legal interpretation body within the DOJ. Within the memo, Engel cites over two centuries of precedent:
In our brief survey of the history, we have identified over 160 times before 1860 in which non-Senate-confirmed persons performed, on a temporary basis the duties of such high offices as Secretary of State, Secretary of the Treasury. … While designations to the office of Attorney General were less frequent, we have identified at least one period in 1866 when a non-Senate-confirmed Assistant Attorney General served as Acting Attorney General.
Engel also cites the Supreme Court’s 1898 decision in United States v. Eaton and the Vacancies Reform Act as confirming the president’s power to designate temporary acting agency heads pending Senate confirmation of a new appointment.
Whitaker was appointed to the position of Acting Attorney General on November 7 after the resignation of Jeff Sessions who had been confirmed as Attorney General in 2017. This DOJ memo comes in response to various statutory and constitutional concerns over Whitaker’s appointment including a motion for preliminary injunction filed by the state of Maryland seeking to replace Whitaker with Deputy Attorney General Rod Rosenstein.