How can the President appoint Whitaker as Acting Attorney General?

Question

Today the president asked for and received the Attorney General’s resignation. Then it was announced that the DOJ Chief of Staff, Matthew Whitaker would be the Acting AG and according to the Hill, NyPost, and others:

"The Acting Attorney General is in charge of all matters under the purview of the Department of Justice," DOJ spokeswoman Sarah Isgur Flores said in a statement to The Hill.

And yet, on the basis of this legal analysis in Slate over a year ago, there are only three things that the President can do with respect to this without going through the Senate:

1. He could

... follow the terms of the DOJ succession statute and his own executive order on DOJ succession, under both of which the deputy attorney general, Rod Rosenstein, would automatically become the acting attorney general ...

2. The Federal Vacancies Reform Act of 1998:

A more complicated scenario would be to rely on the provision codified at 5 U.S. Code Section 3345(a)(2), which states: “notwithstanding [the default rule that the deputy becomes the acting], the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity...

3. An interim appointment of an actual AG.

To the best of my understanding none of these things have happened. He did not appoint the Deputy AG Rod Rosenstein, Whitaker as DOJ Chief of Staff has not gone through Senate approval, and he is not making an interim appointment. And yet I cannot find a single journalistic, legal, or even political source that has questioned the authority or the legality of the President's actions in this matter today.

Can someone who understands the legal issues here please explain to me what is going on (legally and/or constitutionally)?

Answer 1

Based on 5 U.S. Code Section 3345, Matthew Whitaker appears to fulfill the criteria for subsection (a)(3):

notwithstanding paragraph (1), the President (and only the President) may direct an officer or employee of such Executive agency to perform the functions and duties of the vacant office temporarily in an acting capacity, subject to the time limitations of section 3346, if—

(A) during the 365-day period preceding the date of death, resignation, or beginning of inability to serve of the applicable officer, the officer or employee served in a position in such agency for not less than 90 days; and

(B) the rate of pay for the position described under subparagraph (A) is equal to or greater than the minimum rate of pay payable for a position at GS–15 of the General Schedule.

He has held the Chief of Staff position for a little over a year, and the Chief of Staff position is almost certainly an SES Pay Scale position which would be higher than a GS-15. The time limitation in section 3346 mentioned only refers to the length of time he can serve as the acting attorney general.

It's worth noting that the next part is:

(1) Notwithstanding subsection (a)(1), a person may not serve as an acting officer for an office under this section, if—

(A) during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, such person—

(i) did not serve in the position of first assistant to the office of such officer; or

(ii) served in the position of first assistant to the office of such officer for less than 90 days; and

(B) the President submits a nomination of such person to the Senate for appointment to such office.

As Deputy Attorney General Rod Rosenstein is the "first assistant" for the purpose of this section (see 28 U.S. Code Section 508), this means that if the President decides to nominate Whitaker to the position, he would have to resign his acting position.

Answer 2

It's a tricky question, but there is analysis from people more competent than me available at the New York Times and Lawfare.