On "All In With Chris Hayes" a guest said that if Whitaker is AG, any defendant

[muntrv]

being tried in Federal court could argue that the Justice Dept has no standing to prosecute because Attorney General is illegitimate. Any legal experts on DU agree?

[The Velveteen Ocelot]

1. That was Neil Katyal, the guy who wrote the independent counsel rules.

I'll take his word for it.

[muntrv]

3. He said that because Whitaker has not been confirmed by the Senate yet, he is not legitimate.

[elleng]

2. Not the JUSTICE DEPARTMENT has no standing to prosecute, but

the Acting A/G has no standing/is illegitimate. Neil Katyal, the guest, is right.

[Azathoth]

4. That's one of those "nice in theory, ignored in reality" kinds of arguments

Legally and constitutionally, of course, the DOJ derives its power from the President, who in turn delegates some of his power to the Attorney General. Government agencies might be created by law, but they are essentially just the staff of the cabinet secretaries who run them. The power they wield is the power of their boss. An illegitimate AG means the source of the DOJ's authority and power is illegitimate, sort of like a secretary making purchase orders at the behest of a impostor "boss" who was never hired by the company. In theory.

In practice, government agencies are autonomous bureaucracies and require very little input from El Jefe to do their day-to-day business. I personally doubt a court would even consider a challenge to any DOJ business that the AG wasn't directly involved in. And even then, since the power of the AG really resides with the President, courts might just reason that as long as the President signs off on the DOJ's actions, they are by definition legitimate.