Matthew Whitaker is "unquestionably" authorized to lead the Justice Department despite his lack of Senate confirmation. That's the opinion of Steven Engel, assistant attorney general for the department's Office of Legal Counsel, who's penned a 20-page memo in support of Whitaker's appointment as acting attorney general after Jeff Sessions was fired, Bloomberg reports. Maryland legally challenged Whitaker's appointment Tuesday, arguing that Deputy Attorney General Rod Rosenstein should have been named acting AG. "It is no doubt true that Presidents often choose acting principal officers from among Senate-confirmed officers, but the Constitution does not mandate that choice," the legal opinion reads, adding that Whitaker's appointment is consistent "with centuries of historical practice and precedents."
The memo specifically refers to the 1866 case of an assistant attorney general promoted to acting attorney general without Senate confirmation, reports USA Today. It claims the appointment is also in keeping with the Vacancies Reform Act, which allows the appointment of a senior staffer to an acting post if they have served within the department for a minimum of 90 days. Whitaker, who acted as Sessions' chief of staff, "had been serving in the Department of Justice at a sufficiently senior pay level for over a year," the memo notes. Per CNN, the White House requested advice on whether President Trump could appoint such an individual to the position before Sessions' ousting last week, though it's unclear if Whitaker was specifically named. (Whitaker also allegedly holds controversial views on Jews, atheists, and gay people, and he's criticized the Mueller probe.)