Top Democrats have come out against the Justice Department's recent memo arguing that President Donald Trump had the legal authority to appoint Matthew Whitaker acting attorney general without confirmation by the Senate.
Sens. Dianne Feinstein, D-Calif., Jerry Nadler, D-N.Y., and Adam Schiff, D-Calif., wrote in a statement released Thursday that the Office of Legal Counsel's argument justifying Whitaker's appointment "is fatally flawed."
They note "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 would place deputy attorney general Rod Rosenstein as "next in line" following Jeff Sessions' ouster.
"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 legislators continue.
"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."
They conclude, "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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