The Justice Department’s Office of Legal Counsel issued a Jan. 6 opinion at the request of the White House, saying that despite so-called pro-forma sessions of the Senate, some as brief as a few seconds, the Senate meetings do not constitute legitimate sessions that would preclude presidential recess appointments.

“Although the Senate will have held pro forma sessions regularly from January 3 through January 23, in our judgment, those sessions do not interrupt the intrasession recess in a manner” that would prevent recess appointments, the OLC opinion said. “Thus, the President has the authority under the Recess Appointments Clause to make appointments during this period.”