President Donald Trump has the right, "within certain limits" to name Matthew Whitaker, or anyone who fits the description provided under federal law, as acting attorney general, but it's a "much closer call" to determine if he qualifies under the Constitution, former Attorney General Michael Mukasey said Tuesday.
"Under the Constitution the president can appoint what's called a principal officer," Mukasey, who served under President George W. Bush, told Fox News' "America's Newsroom." "A principal officer who has to be subject to the advice and consent of the Senate. The president can fill certain vacancies only with the advice and consent. The question is whether somebody acting as attorney general would have to be somebody confirmed."
There are already people who have confirmed and who can act as attorney general, after the firing of Jeff Sessions last week, including Deputy Attorney General Rod Rosenstein, said Mukasey, but that would not have been a "wise choice" as he has many conflicts.
Further, Whitaker or anyone serving as acting attorney general can't be nominated to take the position full time, said Mukasey.
"But the point of somebody serving, you can serve as an acting attorney general if you haven't been confirmed in that position," said Mukasey. "The question is whether you've been confirmed in another position, and whether you are considered a principal officer."
The problem is, if it turns out that an acting attorney general is a principal officer and Whitaker has not been confirmed by the Senate in any position, "then anything he does that could be done only by a confirmed attorney general is void," said Mukasey. "There are some things that can be done by — that can be delegated to somebody else. Those things would be perfectly valid."
Sandy Fitzgerald ✉
Sandy Fitzgerald has more than three decades in journalism and serves as a general assignment writer for Newsmax covering news, media, and politics.
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