Reading Room Document

Memorandum for Emmet T. Flood Counsel to the President re: Designating an Acting Attorney General

In this memo, the OLC offered its opinion that the President could designate a senior department of Justice Officla, such as Matthew G. Whitaker (Chief of Staff and Senior Counselor to the Attorney General, designed as temporary Attorney General after the resignation of Jeff Sessions in 2018), as Acting Attorney General under the plain terms of the Vacancies Reform Act. While the Department's organic statute provides that the Deputy Attorney General may be Acting Attorney General in the case of a vacany, the OLC believed that that statute did not displace the Presidents authority to use the Vacancies Reform Act. They also advised that Whitaker's designation would be consistent with the Appointments Clause of the U.S. Constitution.

November 14, 2018