Nov 14, 2018

Justice Department claims Trump's Whitaker appointment is legal

Photo: Erik McGregor/Pacific Press, LightRocket via Getty Images

The Justice Department's Office of Legal Counsel (OLC) advised President Trump that it was within his authority to nominate an official such as former DOJ chief of staff Matthew Whitaker as acting attorney general following Jeff Session's resignation, a senior DOJ official told reporters on Wednesday.

Between the lines: In its written opinion, the OLC argued that the Vacancies Reform Act (VRA) and AG Succession Act present two possible legal avenues for choosing a temporary AG successor, and that neither supersedes the other. The VRA allows the president to choose a high-level agency official who has served for 90 days, regardless of whether they have received Senate confirmation.

  • The OLC also argued that a person serving in a temporary or acting position is not considered a principal officer. Therefore, the office said Whitaker's appointment does not violate the appointments clause of the Constitution, which requires all principal officers be confirmed by the Senate.

The bottom line: Each of these points have been questioned by various legal experts and former DOJ officials. While there have been court rulings on similar situations, which are highlighted in the OLC's written opinion, legal experts have told Axios that there have not been any rulings that specifically address this legal issue. The legality of Whitaker's appointment could still ultimately be decided in court.

The backdrop: The OLC provides legal advice to the president as well as all executive branch agencies, although their opinions have been overturned in some cases — most notably, the "torture memos."

Go deeper: Read the full OLC opinion.

Go deeper

Coronavirus dashboard

Illustration: Sarah Grillo/Axios

  1. Global: Total confirmed cases as of 11 a.m. ET: 883,225 — Total deaths: 44,156 — Total recoveries: 185,377Map.
  2. U.S.: Total confirmed cases as of 11 a.m. ET: 189,753 — Total deaths: 4,090 — Total recoveries: 7,141Map.
  3. Axios-Ipsos Coronavirus Index: It's "a tale of two Americas" as the rich are more likely to work from home and the poor are more likely to report to work.
  4. Federal government latest: President Trump said the next two weeks would be "very painful," with projections indicating the virus could kill 100,000–240,000 Americans.
  5. State updates: Washington and California appear to have slowed their surges of new cases — Florida cases have been doubling the past four days, approaching 7,000.
  6. NYPD: Over 1,400 of its employees have reportedly tested positive for COVID-19.
  7. What should I do? Answers about the virus from Axios expertsWhat to know about social distancingQ&A: Minimizing your coronavirus risk.
  8. Other resources: CDC on how to avoid the virus, what to do if you get it.

Subscribe to Mike Allen's Axios AM to follow our coronavirus coverage each morning from your inbox.

Private equity hits the brakes amid coronavirus recovery uncertainties

Illustration: Rebecca Zisser/Axios

Private equity is still working on opportunistic deals when it can get a break from portfolio triage, but it's also boarding up the exits amid new questions about the speed of the coronavirus recovery.

The state of play: Sale processes are being shelved daily, even ones that already launched with investment bankers, data rooms, and interested suitors.

China's medical diplomacy is empowering euroskeptic leaders

Illustration: Aïda Amer/Axios

The Chinese government has embarked on a highly publicized campaign to provide vital medical supplies to European countries as they fight coronavirus outbreaks within their borders.

Why it matters: Those efforts — and the perception that the European Union has done little to help — are providing fodder for politicians who are eager to hail China and criticize the EU. EU leaders may now have to worry about both Chinese and Russian overtures that weaken European unity.

Go deeperArrow53 mins ago - World