Senate Democrats sue over Trump's Whitaker appointment

Erika Holt
November 20, 2018

The Muller team cites a Justice Department memo the Trump administration has pointed to in justifying its elevation of Whitaker, who has not been Senate confirmed since the George W. Bush years, to acting attorney general instead of a Senate confirmed official in the line of succession.

The lawsuit, filed in the U.S. District Court for the District of Columbia by Senators Richard Blumenthal, Sheldon Whitehouse and Senator Mazie Hirono, is the most high-profile litigation so far to be brought challenging Whitaker's appointment.

All three senators sit on the Senate Judiciary Committee and are arguing that Whitaker's appointment violates the Constitution's Appointment Clause "advice and consent" role. He argues that Mueller can not subpoena him because the special counsel was not appointed by the President nor confirmed by the US Senate.

"The President's designation of Acting Attorney General Matthew G. Whitaker on November 7, 2018, has no effect on this case", which deals with an attempt to force a Roger Stone associate to testify before a grand jury, the special counsel's legal team wrote in the filing.

In Monday's filing, Mueller also argues at length that the appeals court should not consider any new claims against his authority raised by Miller - who has not filed his supplemental briefing yet - in light of Whitaker's rise to acting attorney general.

"President Trump's brazen attempt to flout the law and constitution in bypassing Deputy US Attorney General Rosenstein in favor of a partisan and unqualified staffer can not stand", Maryland state Attorney General Brian Frosh said.

"Americans prize a system of checks and balances, which President Trump's dictatorial appointment betrays", Blumenthal said in a statement.

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The Justice Department released a legal opinion last week that said Whitaker's appointment would not violate the clause because he is serving in an acting capacity.

The lawsuit comes days after a Washington lawyer challenged Whitaker's appointment in a pending supreme court case dealing with gun rights.

Sessions was recused from the Russian Federation probe, leaving Deputy Attorney General Rod Rosenstein, who appointed Mueller, in charge of the investigation.

Democrats have railed against Whitaker since Trump appointed him to the role, saying that Whitaker - who has publicly and forcefully criticized special counsel Robert Mueller's investigation - was chosen to thwart the Russian Federation investigation. A hearing on Maryland's legal challenge is slated for December 19.

The justice department issued a statement on Monday defending Whitaker's appointment as lawful.

In a statement Monday, Justice Department spokeswoman Kerri Kupec said it was based on "centuries of practice and precedent" and "comports with. actions of U.S. presidents, both Republican and Democrat". "To suggest otherwise is to ignore centuries of practice and precedent".

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