Democratic U.S. senators sue to challenge Trump’s Whitaker appointment

Three Democratic senators launched a new legal challenge on
Monday to President Donald Trump’s naming of Matthew Whitaker as
acting attorney general, accusing Trump of depriving the U.S.
Senate of its constitutional power to act on such appointments.

The lawsuit, filed by Senators Richard Blumenthal, Sheldon
Whitehouse and Senator Mazie Hirono, asks a federal court in
Washington to deem the appointment unconstitutional and bar
Whitaker from serving as the top U.S. law enforcement official. The
senators are members of the Senate Judiciary Committee, which
customarily reviews attorney general nominations.

Congressional Democrats have expressed concern that Whitaker, a
Trump loyalist, could undermine or even fire Special Counsel Robert
Mueller, whose investigation of Russia’s role in the 2016 U.S.
election has cast a cloud over Trump’s presidency.

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

Other legal challenges to Whitaker’s appointment were brought
last week by Maryland’s Democratic attorney general and by a
plaintiff in a gun rights case before the U.S. Supreme Court.

The senators’ lawsuit said Trump violated the so-called
Appointments Clause of the U.S. Constitution because the job of
attorney general is a “principal officer” who must be appointed by
the president and confirmed by the Senate. Whitaker is not a
Senate-confirmed official.

It also accused Trump of violating a federal law that
establishes the line of succession if the attorney general post
becomes vacant, giving full authority to the deputy attorney
general. Whitaker took over supervision of Mueller’s investigation
from Deputy Attorney General Rod Rosenstein when Trump appointed
him on Nov. 7 as acting attorney general to replace Jeff Sessions,
who the president ousted.

The senators argued that Rosenstein, a Senate-confirmed Trump
appointee who installed Mueller as special counsel in May 2017,
should be the acting attorney general until a Sessions replacement
is nominated by the president and confirmed by the Senate.

Whitaker in the past criticized the scope of Mueller’s probe and
talked about undermining it by slashing the special counsel’s
funding. Whitaker has not recused himself from overseeing the probe
despite Democratic calls for him to do so.

‘DO WHAT’S RIGHT’
Trump said in an interview on the “Fox News Sunday” program he
would not intervene if Whitaker moved to curtail Mueller’s
investigation, and that his appointee is “going to do what’s
right.” Trump, who said on Friday he had completed written answers
to provide Mueller in the probe, has called the investigation a
“witch hunt.”

The senators’ lawsuit cited Whitaker’s criticism of Mueller’s
probe and his ties to World Patent Marketing, a company accused by
the government of bilking millions of dollars from consumers.

“The U.S. Senate has not consented to Mr. Whitaker serving in
any office within the federal government,” it stated.

The Senate, it added, needs an opportunity “to consider his
espoused legal views, his affiliation with a company that is under
criminal investigation for defrauding consumers, and his public
comments criticizing and proposing to curtail ongoing DOJ
(Department of Justice) investigations that implicate the
President.”

The Justice Department last week issued a 20-page legal opinion
calling Trump’s appointment of Whitaker, who had been chief of
staff to Sessions, lawful under a 1998 law called the Federal
Vacancies Reform Act. Many legal experts have disagreed with the
department’s view.

The department cited only one instance in U.S. history – in 1866
– in which a non-Senate confirmed person was named acting attorney
general. Its legal opinion also relied on an 1898 Supreme Court
ruling that a so-called inferior officer is legally able to perform
the duties of a principal officer “for a limited time and under
special and temporary conditions” without needing Senate
confirmation.

The Democratic lawsuit rejected that view, saying it fails to
explain why Whitaker’s appointment qualifies as “special or
exigent.”

Justice Department spokeswoman Kerri Kupec issued a statement
defending Trump’s designation of Whitaker as lawful, saying it
comports with the Federal Vacancies Reform Act, the Constitution,
Supreme Court precedent, past department opinions and actions of
presidents from both parties.

reuters

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