Top Democrats on Thursday rejected the Justice Department’s defense of acting Attorney General Matthew Whitaker, calling the official opinion a “fatally flawed” attempt to pervert the Constitution.
They want Deputy Attorney General Rod Rosenstein, a man they better trust to oversee the special counsel’s probe into the 2016 elections, to assume the role of acting attorney general and are battling hard to subvert President Trump’s decision to go around Mr. Rosenstein and name Mr. Whitaker.
“President Trump purposefully skipped him and every other individual who meets these conditions,” the Democrats — Sen. Dianne Feinstein and Reps. Adam Schiff and Jerrold Nadler — said in a joint statement.
Mr. Trump demanded Attorney General Jeff Sessions resign and designated Mr. Whitaker, his former chief of staff, to assume the role as acting chief. The Justice Department says that is legal because Mr. Whitaker, while not serving in a Senate-confirmed position, was high enough at the department to be eligible under the Vacancies Reform Act.
Democrats say the VRA takes a back seat to another law that lays out a succession pattern at the Justice Department. That law says the deputy attorney general would usually take over.
The Justice Department, though, says the laws aren’t mutually exclusive, and said it’s opined since the Bush years — well before Mr. Trump was in office — that a president could use the VRA to name someone other than the deputy as acting attorney general.
The bigger fight is over the Constitution, and a clause that says principal officers must have undergone Senate confirmation.
The Justice Department said that doesn’t hold true for temporary acting officers, and pointed to an occasion in 1866 when a non-confirmed person served as acting attorney general.
Democrats mocked the department for having to go back to the Civil War era to justify Mr. Trump’s pick.
“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,” the Democrats said.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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