Senate Democrats Ask U.S. Court to Void Whitaker Appointment

(Bloomberg) -- Three U.S. Senate Democrats sued to undo Donald Trump’s appointment of Matthew Whitaker as acting attorney general, stepping up the pressure on the president and adding to a series of challenges that could end up resolved by the Supreme Court.

The senators’ suit, filed Monday in federal court in Washington, is at least the fourth legal objection to Whitaker as temporary successor to Attorney General Jeff Sessions, whom Trump ousted this month. Even some Republican senators have urged the president to name a permanent successor.

At the center of the suit is a constitutional provision giving the Senate the “advice and consent” power to approve or reject high-level presidential nominees including cabinet members and federal judges. The lawmakers are seeking an order blocking Whitaker from performing the functions and duties of the attorney general because he wasn’t confirmed by the Senate.

Many more challenges may lie ahead, said Josh Blackman, a professor of constitutional law at the South Texas College of Law in Houston.

Supreme Court

“Because the attorney general oversees virtually every aspect of the Department of Justice, thousands of litigants throughout the country will be able to challenge his appointment,” Blackman said. “Sooner or later a federal court somewhere will declare Whitaker’s appointment unconstitutional. At that point, the Supreme Court will have to intervene to resolve the issue.”

Justice Department spokeswoman Kerri Kupec declined to comment on the lawsuit but last week issued a statement defending the appointment.

“President Trump’s designation of Matt Whitaker as Acting Attorney General of the United States is lawful and comports with the Federal Vacancies Reform Act, the Appointments Clause of the U.S. Constitution, Supreme Court precedent, past Department of Justice opinions, and actions of U.S. Presidents, both Republican and Democrat,” Kupec said in the statement. The department’s Office of Legal Counsel has issued a memorandum stating that Whitaker’s appointment was legally valid.

The case was assigned to U.S. District Judge Trevor McFadden, named to the court last year by Trump.

Whitaker quickly emerged as a polarizing figure after his elevation. He had previously criticized the scope of Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 presidential election and any role the Trump campaign may have played in those activities. As acting attorney general, he is now supervising the probe.

Whitaker has also questioned the power of the U.S. Supreme Court to invalidate legislation passed by Congress and, when seeking the Republican nomination for U.S. Senate in Iowa, said judges should view justice through the lens of the New Testament.

‘Unconfirmed Lackey’

“The stakes are too high to allow the president to install an unconfirmed lackey to lead the Department of Justice -- a lackey whose stated purpose, apparently, is undermining a major investigation into the president,” Senator Sheldon Whitehouse of Rhode Island said in a statement Monday announcing the lawsuit, which he filed together with Richard Blumenthal of Connecticut and Mazie Hirono of Hawaii.

Whitaker as the nation’s top law enforcement official “would never pass the advice and consent test,” Blumenthal said in the statement. Whitaker has “indicated an extreme hostility to the special counsel and has provided a virtual road map” to “strangle” Mueller’s investigation, he said later at a news conference.

“What we are witnessing right now is a slow-motion Saturday night massacre,” Blumenthal said. “The strategy of the administration here seems to be to avoid the kind of firestorm that happened under Richard Nixon.”

Other Challenges

Washington-based Supreme Court litigator Tom Goldstein last week filed papers asking the justices to replace Whitaker’s name with Deputy Attorney General Rod Rosenstein’s in a case in which Whitaker is listed as acting attorney general, claiming that Whitaker’s appointment violated federal law as well as the Constitution. The issue has also been raised in a Maryland federal court lawsuit defending Obamacare filed by that state’s Democratic attorney general, Brian Frosh, and in a separate St. Louis federal court case.

“President Trump has shown utter disregard for the bedrock constitutional plan for top executive-branch officials to receive the advice and consent of the Senate before taking office,” said Elizabeth Wydra, president of the Constitutional Accountability Center, one of two public interest groups litigating the challenge.

Whitaker previously served as Sessions’s chief of staff, a post that didn’t require Senate confirmation.

The case is Blumenthal v. Whitaker, 18-cv-2664, U.S. District Court, District of Columbia (Washington).

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