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:
- 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 ...
- 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...
- 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)?