United States Department of Justice Argues President Trump Complied With Federal Statutes and the United States Constitution When Appointing Acting Attorney General

On Wednesday, November 14, 2018, the United States Department of Justice provided a twenty page memo to President Donald J. Trump arguing that President Trump’s appointment of Acting Attorney General Matthew G. Whitaker complied with federal statutes and the U.S. Constitution, and that the appointment is “[c]onsistent with our prior opinion and with centuries of historical practice and precedents.”

United States Assistant Attorney General Steven E. Engel, the head of the Department of Justice’s Office of Legal Counsel, wrote the memo. The memo noted that the Office of Legal Counsel had verbally advised the Trump Administration that the president possessed the lawful authority to appoint an Acting Attorney General. The memo states that the law “does not displace the president’s authority to use the Vacancies Reform Act as an alternative.” Importantly, the memo advised the White House that the temporary appointment of Whitaker as Acting Attorney General “did not transform [Whitaker’s] position into a principal office requiring Senate confirmation.”

The State of Maryland had previously filed a request for preliminary injunction in the U.S. District Court for the District of Maryland seeking to enjoin Whitaker from acting in his official capacity as Acting Attorney General. The injunction further seeks to substitute Deputy Attorney General Rod J. Rosenstein as Acting Attorney General.

Additional Reading

Justice Dept. Defends Legality of Trump’s Appointment of Acting Attorney General, The New York Times (November 14, 2018)

Plaintiff’s Motion for Preliminary Injunction to Substitute Defendant, and to Expedite Consideration of These Matters, Case 1:18-cv-02849-ELH (November 13, 2018)