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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

"Atmospheric river" to whiplash Northern California from drought to flood

A map depicting 24-hour preciptation forecast (inches) ending Monday at 5a.m. local time. Photo: NOAA

A series of powerful "atmospheric river" storms are set dump historic amounts of rainfall across parts of drought-stricken California and the Pacific Northwest from this weekend, forecasters warn.

Why it matters: A strong atmospheric river, packing large amounts of moisture, is predicted to whiplash Northern California from drought to flood.

10,000 trees near giant sequoia groves to be removed after fires

A firefighter looks up at a giant sequoia tree after fire burned through the Sequoia National Forest near California Hot Springs, California, on Sept. 23. Photo: Patrick T. Fallon/AFP via Getty Images

"Upwards of" 10,000 trees near giant sequoia groves have been "weakened by drought, disease, age, and/or fire" and must be removed in the wake of California's wildfires, the Sequoia and Kings Canyon National Parks announced.

Why it matters: The damage to these trees, considered "national treasures," and work to remove them means a nearby key highway must remain closed to visitors as they have "the potential to strike people, cars, other structures, or create barriers to emergency response services," per a statement from the national parks.

Obama stumps for McAuliffe, urges Virginians not "to go back to the chaos"

Photo: Win McNamee/Getty Images

Former President Barack Obama framed a Nov. 2 gubernatorial race as a bellwether for the Democratic Party and the country, telling a crowd at a campaign event for Terry McAuliffe on Saturday that "I believe you, right here in Virginia, are going to show the rest of the country and the world that we're not going to indulge in our worst instincts."

Why it matters: With just over a week to go before Election Day in the Commonwealth, McAuliffe is bringing out the big guns. The 44th president appeared on the campus of Virginia Commonwealth University to urge supporters to get to the polls.