WASHINGTON — The Justice Department pushed back on Wednesday against accusations that President Trump’s appointment of Matthew G. Whitaker as acting attorney general was illegal, arguing that it complied with both federal statutes and the Constitution and that it fit within a long history of similar designations.
In a 20-page memo to Mr. Trump’s top White House lawyer, Steven E. Engel, the head of the department’s Office of Legal Counsel, wrote that his office had verbally advised the White House that the president had lawful authority to designate someone like Mr. Whitaker as the acting successor to former Attorney General Jeff Sessions before he resigned under pressure last week.
“It is no doubt true that presidents often choose acting principal officers from among Senate-confirmed officers,” Mr. Engel wrote. “But the Constitution does not mandate that choice. Consistent with our prior opinion and with centuries of historical practice and precedents, we advised that the president’s designation of Mr. Whitaker as acting attorney general on temporary basis” did not require Senate confirmation.
The disclosure of Mr. Engel’s memorandum opinion came a day after the State of Maryland asked a Federal District Court judge to issue an injunction declaring that by law, when Mr. Trump ousted Mr. Sessions, the role of acting head of department passed to the deputy attorney general, Rod J. Rosenstein — and that Mr. Whitaker is not the legitimate holder of that position.
Mr. Trump’s selection of Mr. Whitaker to be the nation’s top law enforcement official has prompted widespread criticism, in part because he has been an outspoken critic of the special counsel investigation into whether associates of Mr. Trump conspired with Russia in its election interference operation — but now helps oversee that inquiry.
His appointment has also attracted legal criticism, in part because of a statute that addresses the order of succession for attorney general that the deputy attorney general — Mr. Rosenstein — takes over as acting head of the department in the case of a vacancy.
Some legal commentators — including Neal Katyal, a former acting solicitor general in the Obama administration, and George S. Conway, a prominent conservative lawyer who is married to Mr. Trump’s adviser Kellyanne Conway — have also argued that under the Constitution’s appointments clause, only an official that the Senate confirmed for his or her current position can be acting attorney general. Mr. Rosenstein was confirmed to be deputy attorney general; Mr. Whitaker did not require confirmation for his previous role as Mr. Sessions’s chief of staff.
The Office of Legal Counsel memorandum rebutting those sets of arguments, both of which were also made by Maryland in its court filing, was addressed to Emmet T. Flood, Mr. Trump’s acting White House counsel.
Mr. Engel did not mention when White House advisers first consulted him about their options for potentially replacing Mr. Sessions. He also did not address whether Mr. Whitaker may be ethically required to recuse himself from matters like the Russia investigation, or whether there are any limitations on his authority. A senior Justice Department official, briefing reporters about the document, declined to address questions about such matters.
On the statutory issue, Mr. Trump purported to install Mr. Whitaker under a provision of the Vacancies Reform Act of 1998, which permits presidents to temporarily install a senior official from the department, who has served at least 90 days in it, to be its acting head, even without Senate confirmation.
The Vacancies Reform Act applies to the executive branch in general, raising the question of whether it is displaced by the more specific statute that addresses an order of succession for attorney general, or whether a president can choose to use either law. Mr. Engel argued that the better interpretation was that the president can pick either option.
In support of that argument, he cited litigation over disputes involving the position of acting general counsel for the National Labor Relations Board and for the acting head of the Consumer Financial Protection Board. In those cases, lower-court judges ruled that the Vacancies Reform Act mechanisms for temporarily filling vacancies remained available as an alternative to other statutes that specifically addressed those offices.
“For these reasons, we believe that the president could invoke the Vacancies Reform Act in order to designate Mr. Whitaker as acting attorney general ahead of the alternative line of succession provided” in the attorney general succession statute, Mr. Engel wrote.
Some legal experts have also raised the question of whether the Vacancies Reform Act applies to a situation in which the office became vacant because a president fired its previous Senate-confirmed holder. On its face, the act applies only when the position is vacant because an officer is “unable to perform the functions and duties of the office.”
In a footnote, Mr. Engel noted that technically Mr. Sessions resigned at the president’s request rather than being fired. But even if he was removed, Mr. Engel insisted, that would still trigger Mr. Trump’s ability to invoke the act to install a temporary successor like Mr. Whitaker.
On the constitutional issue of whether the appointments clause requires anyone wielding the powers of attorney general to have undergone Senate confirmation, Mr. Engel argued both Supreme Court precedent and historical practice has held that when the position of a so-called principal officer — one who is very senior and powerful, and which normally requires confirmation — is vacant, someone who has not been Senate-confirmed may temporarily fill it.
In support of that claim, Mr. Engel pointed to an 1898 Supreme Court case upholding the temporary appointment of a replacement consul in modern-day Thailand who had not been confirmed by the Senate after the consul in place grew dangerously ill and had to leave the country. The Office of Legal Counsel had also cited that case in a 2003 memo related to the acting director of the Office of Management and Budget.
But Mr. Engel also pointed to statutes dating back to the George Washington administration in which Congress authorized presidents to direct certain officials without Senate confirmation to temporarily carry out the duties of vacant principal officers, and later specified that non-Senate-confirmed first assistants could serve as acting heads of a department.
He also wrote that Justice Department research had identified more than 160 occasions before the Civil War in which presidents had designated non-Senate-confirmed officers to serve as acting principal officers in cabinet positions, including secretaries of State and Treasury.
Mr. Engel’s memo identified no examples of acting attorneys general without Senate confirmation since Congress created the Justice Department in 1870. But he cited several examples from before then when the office of attorney general existed by itself, including a six-day period in 1866 when an assistant attorney general without Senate confirmation briefly replaced Attorney General James Speed, who resigned.
Against that backdrop, Mr. Engel wrote that, “based on longstanding historical practice and practice and precedents, we do not believe that the appointments clause may be construed to require the Senate’s advice and consent before Mr. Whitaker may be acting attorney general.”