The Justice Department is expected to publish an opinion in support of Matthew Whitaker’s appointment as acting attorney general, The Wall Street Journal reports. A source told the newspaper the DOJ’s Office of Legal Counsel will say President Trump had the “ability to appoint” Whitaker after firing Sessions last week. The opinion will reportedly refer to 2003 guidance the office issues, which concluded the president could name a non-confirmed officer to an acting principal officer role by defining an acting officer as an “inferior” one. Under Supreme Court precedent, an “inferior” officer does not need Senate approval to be appointed. Justice Department spokeswoman Kerri Kupec also told the Journal Whitaker would consult with ethics officials on “his oversight responsibilities and matters that may warrant recusal,” which could include his oversight of special counsel Robert Mueller’s investigation. Whitaker has voiced his opinion against the Mueller probe in various op-eds and conservative media outlets. Democrats have also vowed to look into Whitaker’s appointment, calling the move illegal without Senate approval.
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