On the statutory issue, Mr. Trump purported to install Mr. Whitaker under a provision of the Vacancies Reform Act of 1998, which permits presidents to temporarily install a senior official from the department, who has served at least 90 days in it, to be its acting head, even without Senate confirmation.
The Vacancies Reform Act applies to the executive branch in general, raising the question of whether it is displaced by the more specific statute that addresses an order of succession for attorney general, or whether a president can choose to use either law. Mr. Engel argued that the better interpretation was that the president can pick either option.
In support of that argument, he cited litigation over disputes involving the position of acting general counsel for the National Labor Relations Board and for the acting head of the Consumer Financial Protection Board. In those cases, lower-court judges ruled that the Vacancies Reform Act mechanisms for temporarily filling vacancies remained available as an alternative to other statutes that specifically addressed those offices.
“For these reasons, we believe that the president could invoke the Vacancies Reform Act in order to designate Mr. Whitaker as acting attorney general ahead of the alternative line of succession provided” in the attorney general succession statute, Mr. Engel wrote.
Some legal experts have also raised the question of whether the Vacancies Reform Act applies to a situation in which the office became vacant because a president fired its previous Senate-confirmed holder. On its face, the act applies only when the position is vacant because an officer is “unable to perform the functions and duties of the office.”
In a footnote, Mr. Engel noted that technically Mr. Sessions resigned at the president’s request rather than being fired. But even if he was removed, Mr. Engel insisted, that would still trigger Mr. Trump’s ability to invoke the act to install a temporary successor like Mr. Whitaker.
On the constitutional issue of whether the appointments clause requires anyone wielding the powers of attorney general to have undergone Senate confirmation, Mr. Engel argued both Supreme Court precedent and historical practice has held that when the position of a so-called principal officer — one who is very senior and powerful, and which normally requires confirmation — is vacant, someone who has not been Senate-confirmed may temporarily fill it.