"Mr Whitaker’s designation as acting Attorney General accords with the plain terms of the Vacancies Record Act," the opinion said. "The Department’s organic statute provides that the Deputy Attorney General (or others) may be Acting Attorney General in a case of a vacancy."
The Office of Legal Counsel noted that Whitaker’s designation is consistent with the Appointments Clause of the US Constitution, which requires the president to obtain advice and consent of the US Senate before appointing a principal officer of the United States.
"Although the Attorney General is a principal officer requiring Senate confirmation, somebody who temporarily performs his duties is not," the Office of Legal Counsel said.
Last week, US Attorney General Jeff Sessions resigned at Trump’s request. Trump in a Twitter post said Matthew Whitaker would fill the role of acting attorney general until a permanent replacement is found. Several lawmakers said such an appointment requires congressional approval.
Investigation Into Whitaker
Meanwhile, US lawmakers have started an investigation into Whitaker and his involvement with a company accused of stealing millions of dollars from its customers, Democrats on the House Oversight Committee said in a press release on Wednesday.
"Today, Reps. Elijah E. Cummings, Jerrold Nadler, Frank Pallone, Jr., and Adam Schiff, the Ranking Members of the House Committees on Oversight and Government Reform, the Judiciary, Energy and Commerce, and Permanent Select Committee on Intelligence, respectively, sent seven letters requesting information relating to Acting Attorney General Matthew G. Whitaker’s involvement with World Patent Marketing, a company that allegedly bilked millions from consumers and suppressed criticism of their activities," the release said.
Last year, the Federal Trade Commission (FTC) shut down World Patent Marketing after accusing it of scamming its customers out of $26 million. According to the FTC, the company used bogus "success stories" to lure customers into paying the company thousands of dollars to patent their inventions.
Maryland federal judge set a hearing for Dec. 19 in Maryland's challenge to the constitutionality and lawfulness of Matthew Whitaker's appointment as acting attorney general. Previously: https://t.co/rzV1VyMgkV pic.twitter.com/R4BGlTfnfq— Zoe Tillman (@ZoeTillman) November 14, 2018
But after the customers were strung along for months or sometimes years, the company never delivered what it promised, and threatened people who complained about criminal prosecution, according to the FTC.
The FTC and World Patent Marketing agreed to a nearly $26 million settlement in the case.
Court records filed by the FTC in the case including documents showing that Whitaker was paid $9,375 by the company and played a direct role in threatening some customers.
The 2003 Office of Legal Counsel opinion that Matthew Whitaker is citing to justify his appointment as acting AG was written by… wait for it… Ed Whelan.https://t.co/CBS4rRWqDj— Aaron Blake (@AaronBlake) November 13, 2018
The lawmakers have sent a series of letters requesting briefings and documents from Whitaker, as well as the former founder and CEO of World Patent Marketing Scott Cooper, the FTC, and others, the release said.