The Vacancies Act and the Attorney General: Constitutional and Statutory Issues
3 PM EST
Is Matt Whitaker legally serving as the Acting Attorney General?
In early November, at the request of President Trump, Attorney General Jeff Sessions resigned. Under the Department of Justice’s succession statute, Deputy Attorney General Rod Rosenstein would be the Acting Attorney General until a new nominee could be confirmed. President Trump, however, immediately turned to the Federal Vacancies Reform Act of 1998 to name Matt Whitaker, Sessions’s Chief of Staff, as Acting Attorney General. Under the Vacancies Act, the default acting official is the first assistant to the vacant office, here the Deputy Attorney General. But the Act permits the President to choose another Senate-confirmed official from any agency or a sufficiently senior official at the same agency who has served for at least ninety days. Whitaker falls into that last category.
Maryland, some Democratic Senators, and others have turned to the courts to challenge Whitaker’s new role—on constitutional and statutory grounds. The district court in Maryland’s challenge will hear oral arguments on December 19. There is a motion pending at the Supreme Court to substitute Rosenstein as the opposing party in a petition for certiorari.
President Trump announced on December 7 that he intends to nominate William Barr for Attorney General. Similar challenges would arise if other top agency officials leave and the President selects non-Senate confirmed individuals to serve temporarily under the Vacancies Act.