US Justice Department says Trump has the power to name Whitaker as acting attorney general

The US Justice Department defended the legality of US President Donald Trump’s appointment of Acting Attorney General Matthew Whitaker on Wednesday, saying he has the authority to name a replacement for the fired Jeff Sessions outside of the department’s line of succession.

In a legal opinion sent to the White House, the department’s Office of Legal Counsel said that the president can “depart from the succession order” that was established by one federal law by using a separate law known as the Federal Vacancies Reform Act.

Critics have accused Trump of overstepping his constitutional authority and breaking federal law in his appointment of Whitaker last week after forcing Sessions to resign as attorney general.

The state of Maryland launched a court challenge on Tuesday to Whitaker’s appointment on constitutional and statutory grounds.

The Justice Department’s legal opinion, coming a week after Trump made the appointment, said the Republican president was on solid constitutional ground in taking the action.

Maryland’s legal filing had argued that Trump violated the so-called Appointments Clause of the US Constitution because the job of attorney general is a “principal officer” who must be appointed by the president and confirmed by the Senate.

Trump finally forces Sessions to resign, ending toxic relationship poisoned by Russia probe

Before ousting him, Trump had repeatedly criticised Sessions for recusing himself in March 2017 from the federal investigation, now headed by Special Counsel Robert Mueller, into Russia’s role in the 2016 US election, a probe Trump has called a “witch hunt”.

Congressional Democrats have voiced concern that Whitaker, a Trump loyalist, could undermine or even fire Mueller.

The department’s legal opinion did not address whether Whitaker will recuse himself from the Russia investigation.