Three Democratic Senators Challenge Legality of Whitaker Appointment

November 19, 2018 Updated: November 19, 2018

A trio of Democratic senators filed a lawsuit on Nov. 19 challenging the legality of President Donald Trump’s designation of Matthew Whitaker as the acting U.S. attorney general.

Attorneys for Sens. Richard Blumenthal (D-Conn.), Sheldon Whitehouse (D-R.I.), and Mazie Hirono (D-Hawaii) claim in a lawsuit that Trump violated the Constitution’s appointments clause when he chose Whitaker to temporarily serve as the replacement for Jeff Sessions, who resigned at Trump’s request on Nov. 7.

The appointments clause requires that the president’s nominees be approved by the Senate. The Justice Department (DOJ) argued in a legal opinion that the clause doesn’t apply because Whitaker is serving only temporarily.

“Under the legal theory currently being advanced by the White House, the president could elevate a family member who worked for an agency to lead it without Senate confirmation,” Anne Tindall, an attorney representing the senators, said in a statement. “The prospect that the attorney general might seek to serve the president, rather than the American people, reaffirms the importance of a confirmation process that follows the Constitution.”

The lawsuit by Blumenthal, Whitehouse, and Hirono is the third legal challenge to Trump’s appointment of Whitaker.

On Nov. 14, the state of Maryland challenged the legality of the appointment as part of a separate lawsuit related to the Trump administration’s handling of the Affordable Care Act.

On Nov. 16, the legality of the appointment was challenged in an unusual motion to the Supreme Court (pdf) as part of an unrelated lawsuit challenging a federal ban on the possession of firearms by convicted felons. The motion asserts that Deputy Attorney General Rod Rosenstein automatically became the acting attorney general upon Sessions’s resignation.

Both the State of Maryland and the Supreme Court suits ask the court to order that Deputy Attorney General Rod Rosenstein, not Whitaker, is the acting attorney general. The lawsuit by the three Democratic senators, all members of the Senate Judiciary Committee, only seeks an order which would bar Whitaker from performing the duties of the attorney general.

In contrast to the Maryland and Supreme Court challenges, which assert that Trump may have violated both congressional statutes and the Constitution, the lawsuit by the Democrats targets only the constitutional claim.

The president announced on Nov. 7, the same day Sessions resigned, that Whitaker will be the acting attorney general until a replacement is confirmed by the Senate. Prior to his appointment to the top of the DOJ, Whitaker served as the chief of staff for Sessions.

Sessions served for nearly two years having recused himself from the Russia investigation. As a result, Deputy Attorney General Rod Rosenstein appointed and managed special counsel Robert Mueller, who is probing allegations of collusion between the Trump campaign and Russia. Whitaker became Mueller’s boss on Nov. 7.

Democrats are concerned about Whitaker because he has criticized the scope of Mueller’s probe, suggested that there was no collusion, and speculated that it would be possible for a new attorney general to limit the probe by cutting the special counsel’s budget.

Mueller has not accused anyone of colluding with Russia. Much of the special counsel’s investigation, including its full scope, remains classified.

Trump has said that he was not aware of Whitaker’s views on the Mueller probe before selecting him and was not concerned upon learning of the acting attorney general’s views afterward.

“What do you do when a person is right? There is no collusion. It happened to be right,” Trump said in an interview with Fox News.

The DOJ’s legal opinion to the White House on Nov. 14 revealed that Trump was briefed by the DOJ on the legality of his choice before making the appointment.

The White House and the DOJ did not immediately respond to a request for comment.

Trump appointed Whitaker under the Federal Vacancies Reform Act of 1998 (FVRA), a law allowing him to elevate a senior official to agency head for up to 210 days.

The law was intended to address vacancies created by deaths or resignations, but it is unclear whether it applies to those created by firings.

There is some question as to whether Sessions was fired or resigned. The former attorney general submitted a letter of resignation at the president’s “request.”

Some legal experts say that if Sessions was effectively fired, his appointment runs afoul of that law and could be challenged in court.

Steve Vladeck, a professor of constitutional law at the University of Texas, said he thought Whitaker’s hiring passed constitutional muster. Vladeck said there is Supreme Court precedent for the argument that Whitaker’s assignment is temporary and therefore not an “appointment” under the Constitution.

Reuters contributed to this report.

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