Whitaker's Elevation to Acting AG Illegal, States Tell Judge

(Bloomberg) -- President Donald Trump’s appointment of Matthew Whitaker as acting attorney general is illegal and throws the legitimacy of the U.S. Justice Department into doubt, a group of more than a dozen state attorneys general said in a federal court filing.

The group, including New York, Pennsylvania and Illinois, filed a joint brief Monday in support of a lawsuit by Maryland challenging Trump’s power to appoint Whitaker without Senate approval. Maryland seeks a court order barring Whitaker from exercising his new authority.

“The law is clear -- and Matthew Whitaker’s appointment as acting attorney general is illegal, violating longstanding rules,” New York Attorney General Barbara Underwood said in a statement.

Whitaker, who was chief of staff to former attorney general Jeff Sessions, took control of the Justice Department on Nov. 7 after Trump ousted Sessions and now has authority over Special Counsel Robert Mueller’s investigation of Russian interference in the 2016 election, though that probe wasn’t mentioned in the states’ brief.

The attorneys general said Whitaker would have control over issues “fundamentally affecting” the states’ citizens, including the future of the Affordable Care Act and the treatment of immigrants brought to the U.S. illegally as children. And those decisions will now be subject to challenges based on Whitaker’s appointment, they said.

Perfect Example

The Maryland lawsuit on Monday also drew other briefs from watchdog groups either challenging or supporting Whitaker’s appointment.

Citizens for Responsibility and Ethics in Washington said Whitaker’s elevation is a perfect example of why Senate scrutiny is needed, citing his public statements in which he criticized Mueller’s investigation and disputed Trump’s potential criminal liability, as well as his relationship with a key witness in the investigation, Sam Clovis.

“Each of these issues, to be sure, would have been thoroughly examined had Mr. Whitaker gone through Senate confirmation,” according to CREW’s filing. “But the president bypassed that process altogether by naming Mr. Whitaker acting attorney general, commencing what some have called a ‘slow-motion Saturday Night massacre’ that could lead to curtailment of the special counsel’s investigation.”

‘Naked Attempt’

Lawyers for the conservative Judicial Watch said in one of the friend-of-the-court briefs, “The State of Maryland’s naked attempt to wage a political battle in the courts should be denied.”

Justice Department spokeswoman Kerri Kupec declined to comment, referring to previous filings by the department justifying Whitaker’s appointment.

The Trump administration has pointed to the Federal Vacancies Reform Act, a 1998 law, as allowing the president to temporarily fill a vacancy for a position that requires Senate approval with any senior official who has been in office for 90 days or more. Whitaker meets that criterion. The states argue that law is trumped by the Attorney General Succession Act of 1977.

The states “have an urgent interest in the resolution of this issue, so that no doubts surround the legitimacy and authority of the United States attorney general and the United States Department of Justice,” the attorneys general said in the filing Monday.

Underwood said Congress took measures to protect the Senate’s confirmation power by requiring that in the event of a vacancy in the attorney general’s office, the Senate-confirmed deputy attorney general, if available, would temporarily assume the position.

“Since Congress first established DOJ in 1870, it has provided for a specific order of succession in the U.S. attorney general’s office to maintain continuity of government,” the statement said. “The appointment of Mr. Whitaker directly undermines Congress’ intent in creating this order of succession.”

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