Nadler, Feinstein, Schiff: White House OLC Opinion on Whitaker Appointment ‘Fatally Flawed’

Nov 15, 2018 Issues: Government Oversight

Washington, D.C. –Today, House Judiciary Committee Ranking Member Jerrold Nadler (D-NY), Senate Judiciary Committee Ranking Member Dianne Feinstein (D-Calif.) and House Intelligence Committee Ranking Member Adam Schiff (D-Calif.) released the following statement on the flawed Office of Legal Counsel opinion that attempts to justify the appointment of Matthew Whitaker as acting attorney general: 

“The Office of Legal Counsel opinion released yesterday attempts to justify the appointment of Matthew Whitaker as acting attorney general. By relying exclusively on the Vacancies Reform Act and twisting the plain language of the Constitution, the opinion’s argument is fatally flawed.

“First, there’s already a statute that lays out what should happen when the attorney general’s position becomes vacant: the Justice Department’s own succession law, which authorizes the deputy attorney general to exercise the attorney general’s powers and provides for a line of Senate-confirmed successors if the deputy attorney general is unable to exercise the attorney general’s duties. This specific statute’s language should prevail over the more general provisions of the Vacancies Reform Act.

“Rod Rosenstein, the deputy attorney general selected by President Trump, is in place, has been confirmed and is next in line. President Trump purposefully skipped him and every other individual who meets these conditions.

“Second, the Constitution requires that any principal officer must be confirmed by the Senate. OLC itself could uncover only one case in which an individual who wasn’t Senate confirmed ever served as acting attorney general, and that was for six days in 1866—the year after the Civil War ended, four years before the Justice Department’s founding and a century before the DOJ succession law was enacted.

“The reason for our government’s consistent practice with respect to the nation’s chief law enforcement officer since then is simple: For more than a century, the executive branch has understood, and Congress has agreed, that the attorney general, including one serving in an acting capacity, is a principal officer who must be nominated by the president and confirmed by the Senate.

“Finally, the context of Whitaker’s appointment is critical. The president, who under the Constitution must take care that laws are faithfully executed, is trying to use a convoluted legal argument to bypass Congress and embed a political operative to serve his own interests.

“There should be bipartisan concern that this will embolden the future use of temporary appointments for illegitimate purposes. That’s not what the framers or Congress intended. The attorney general must be Senate confirmed, plain and simple. This can’t be allowed to stand.”

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