President Donald Trump speaks to the press before departing the White House for Paris. Photo: Nicholas Kamm/AFP via Getty Images

President Trump is using Robert Mueller's lack of Senate confirmation to defend his decision to name Matt Whitaker as his acting attorney general.

Reality check: Axios spoke with several legal experts and former DOJ officials about the legality of Whitaker's appointment, and they told us that the key difference between Mueller and Whitaker is the seniority of their current positions, which makes Trump's attempt to compare their lack of Senate confirmation irrelevant.

What Trump said:

"Mueller ... hasn’t gone through the Senate process. You think Whitaker hasn’t, but Whitaker has because he was a really distinguished U.S. attorney in Iowa and he was approved by everybody because to be U.S. attorney, that’s top of the line.
A big complaint people have, Mueller was not Senate confirmed, so he’s doing a report. He wasn’t Senate confirmed. Whitaker was Senate confirmed, and he doesn’t need this, but he was Senate confirmed at the highest level when he was the U.S. attorney from Iowa.”
— Trump to reporters on Friday

What legal experts have told Axios: Mueller's role as special counsel for the Russia investigation is not considered a "principal role," which according to Article II, Section 2, Clause 2 of the Constitution, would require Senate confirmation to occupy. However, the attorney general is considered a principal role, and therefore needs Senate confirmation.

Trump also noted that Whitaker was confirmed by the Senate when he was the U.S. Attorney for the Southern District of Iowa.

  • However, David Rivkin, a constitutional attorney who worked in the White House Counsel's office and Justice Department in the Ronald Reagan and George H.W. Bush administrations, told Axios that officials who are considered as occupying a principal role are only confirmed for a specific position.
  • Rivkin added that having been confirmed by the Senate before does not mean an official automatically qualifies for a different position — they must be confirmed again for that new principal role.

Yes, but: Lawyers and former DOJ officials disagree on whether an "acting" attorney general — in this case, Whitaker's position — is considered a principal role given the temporary nature of it. Those arguments are laid out here.

Go deeper

Updated 1 hour ago - Politics & Policy

Coronavirus dashboard

Illustration: Sarah Grillo/Axios

  1. Global: Total confirmed cases as of 10:30 a.m. ET: 12,528,449 — Total deaths: 560,921 — Total recoveries — 6,907,072Map.
  2. U.S.: Total confirmed cases as of 10:30 a.m. ET: 3,187,270 — Total deaths: 134,117 — Total recoveries: 983,185 — Total tested: 38,856,341Map.
  3. Public health: We're losing the war on the coronavirusThe reality of the coronavirus bites.
  4. Business: Trump says he's no longer considering phase-two trade deal with China because the pandemic damaged the two countries' relationship — How the coronavirus pandemic boosted alternative meat.
  5. 🎧 Podcast: Rural America has its own coronavirus problem.

Romney calls Stone commutation "historic corruption"

Sen. Mitt Romney. Photo: Tom Williams/CQ-Roll Call, Inc via Getty Images

Sen. Mitt Romney (R-Utah) on Saturday tweeted a scathing response to President Trump's Friday night commutation of former associate Roger Stone's prison sentence, calling the move "[u]nprecedented, historic corruption."

Why it matters: Romney has emerged as the party's most prominent Trump critic. He sent shockwaves through Washington after announcing he would vote to convict Trump in the impeachment trial — becoming the only Senate Republican to break ranks and vote for the president's removal from office. Now he is the first major GOP lawmaker to condemn Trump's Friday night call regarding Stone.

5 hours ago - Health

We're losing the war on the coronavirus

Chart: Danielle Alberti/Axios

By any standard, no matter how you look at it, the U.S. is losing its war against the coronavirus.

Why it matters: The pandemic is not an abstraction, and it is not something that’s simmering in the background. It is an ongoing emergency ravaging nearly the entire country, with a loss of life equivalent to a Sept. 11 every three days — for four months and counting.