DOJ OLC Memo Re Designating an Acting Attorney General (14 Nov 2018) (Matthew Whitaker)
U.S. Department of Justice
Office of Legal Counsel
Washington, D.C. 20530
November 14, 2018
MEMORANDUM FOR EMMET T. FLOOD
COUNSEL TO THE PRESIDENT
Re: Designating an Acting Attorney General
After Attorney General Jefferson B. Sessions III resigned on November 7, 2018, the President designated Matthew G. Whitaker, Chief of Staff and Senior Counselor to the Attorney General, to act temporarily as the Attorney General under the Federal Vacancies Reform Act of 1998, 5 U.S.C. §§ 3345-3349d. This Office had previously advised that the President could designate a senior Department of Justice official, such as Mr. Whitaker, as Acting Attorney General, and this memorandum explains the basis for that conclusion.
Mr. Whitaker's designation as Acting Attorney General accords with the plain terms of the Vacancies Reform Act, because he had been serving in the Department of Justice at a sufficiently senior pay level for over a year. See id. § 3345(a)(3). The Department's organic statute provides that the Deputy Attorney General (or others) may be Acting·Attorney General in the case of a vacancy. See 28 U.S.C. § 508. But that statute does not displace the President's authority to use the Vacancies Reform Act as an alternative.
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[Conclusion at page 20]
III.
The President's designation to serve as Acting Attorney General of a senior Department of Justice official who does not currently hold a Senate-confirmed office is expressly authorized by 5 U.S.C. § 3345(a)(3). Mr. Whitaker has been designated based upon a statute that permits him to serve as Acting Attorney General for a limited period, pending the Senate's consideration of a nominee for Attorney General. Consistent with our 2003 opinion, with Eaton, and with two centuries of practice, we advised that his designation would be lawful.
STEVEN A. ENGEL
Assistant Attorney General
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