The Washington PostDemocracy Dies in Darkness

Opinion We need an attorney general vetted by the Senate — not Matthew Whitaker

Acting attorney general Matthew G. Whitaker in New York on Wednesday.
Acting attorney general Matthew G. Whitaker in New York on Wednesday. (Mary Altaffer/AP)
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IT HAS BEEN two weeks since President Trump booted Jeff Sessions from the top office in the Justice Department because the president disliked Mr. Sessions’s ethical commitments. Yet Mr. Trump has not announced a permanent replacement, and his pick to lead the department in an acting capacity, Matthew G. Whitaker, is unqualified and quite possibly legally barred from holding the office. Unless removed by the president or a court, he could occupy the attorney general’s seat for most of the rest of Mr. Trump’s first term.

Congressional leaders have tried to suppress concerns about Mr. Whitaker — that he is unfit, that he was illegally promoted and that he is a loyal Trump soldier who will meddle in Justice Department investigations and policy — by insisting that the White House will soon send a permanent attorney general nominee to the Senate for confirmation. Though this would not neutralize worries about what Mr. Whitaker could do while the Senate vetted a permanent replacement, it would put a tighter time limit on his tenure leading the Justice Department. Yet Saturday, Mr. Trump told reporters that he is close to choosing a new United Nations ambassador but not a new attorney general. Instead, he called Mr. Whitaker “a great gentleman” who is doing “a fantastic job.”

In fact, Mr. Whitaker’s wacky theories on judicial power put him far outside the mainstream of American lawyers. His history working with a sketchy company accused of fraud raises questions about his ethical standards, and his expressed hostility toward the Russia probe by special counsel Robert S. Mueller III makes him an especially poor choice to head the Justice Department now.

Mr. Whitaker’s selection to be acting attorney general, without Senate confirmation for any job in the government, raises legal issues that a recent analysis from the Office of Legal Counsel failed to extinguish. History and a plain reading of the law suggest that such an arrangement is permissible only in exigent circumstances and for very limited periods of time. There are no exigent circumstances here; Mr. Trump just wanted to fire Mr. Sessions, and he did not want Deputy Attorney General Rod J. Rosenstein to take his place. The firing was reportedly long planned. As for timing, the clock continues to tick.

The Senate would not confirm Mr. Whitaker if he were nominated for a job that requires it, and he should not be exercising the authorities of a Senate-confirmable post for a practically indefinite period of time simply because the president wants him to. The Senate confirmation system was designed to combat the favoritism and the appearance of corruption that have tainted Mr. Whitaker’s elevation. Senators should be outraged that the president has handed the Justice Department to someone they have had no say in evaluating. They should be demanding answers, not avoiding the question.

Read more:

The Post’s View: There is no way this man should be running the Justice Department

Jed Shugerman: Think Matthew Whitaker is a hack? He’s one of many.

Paul Waldman: How Matthew Whitaker’s ‘wingnut welfare’ stint made him perfect for Trump

Nelson W. Cunningham: If Matthew Whitaker hinders the Mueller inquiry, would we even know?

Jennifer Rubin: A critical lawsuit over the acting attorney general