Law.com: Trump Watch: More on the DOJ’s Greenlight for Whitaker

November 15, 2018

In a recent memo, Steven Engel, Assistant Attorney General in the Justice Department’s Office of Legal Counsel (OLC), asserted the legality of Matthew Whitaker’s appointment as Acting Attorney General. Engel argued that Whitaker’s appointment complies with the 1998 Vacancies Reform Act and does not require the advice and consent of the Senate under the Appointments Clause in the Constitution.

O’Melveny partner Walter Dellinger, who served as Acting US Solicitor General and head of the OLC, tweeted that the OLC’s memo had the “better side of the argument that the appointment is consistent with the Vacancies Reform Act.” However, on the issue of the Appointments Clause, he said, “it is well argued but in the end I am unpersuaded.”