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.

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SurveyMonkey poll: Trump improves, but not enough

Trump and Biden during the final debate. Photo: Xinhua/Liu Jie via Getty Images

President Trump's final debate performance exceeded Americans' expectations, but it wasn't enough to shift the dynamics that left him trailing Joe Biden across most measures, according to a new Axios-SurveyMonkey poll.

What they're saying: "Liar" was the word used most by debate watchers to describe Trump's performance, followed by "lies," "strong," "presidential" and "childish." "Presidential" was the word used most to describe Biden's performance, followed by "liar," "weak," "expected" and "honest."

Hunter Biden saga dominates online debate

Data: NewsWhip; Table: Axios Visuals

The mainstream media turned away. But online, President Trump's charges about Hunter Biden were by far the dominant storyline about the final presidential debate, according to exclusive NewsWhip data provided to Axios.

  • Coverage of business dealings by Joe Biden's son — and pre-debate allegations by one of his former business associates, Tony Bobulinski — garnered more than twice as much online activity (likes, comments, shares) as the runner-up.