Supreme Court Asked to Say Whether Whitaker's Appointment Valid

(Bloomberg) -- An unusual new filing asks the U.S. Supreme Court to move quickly to say whether President Donald Trump’s appointment of Matthew Whitaker as acting attorney general is valid.

The filing by Washington lawyer Tom Goldstein came Friday in a case that on its surface has nothing to do with Whitaker: a bid for a hearing from a convicted felon seeking to restore his gun-possession rights.

Goldstein is asking the court to remove Whitaker’s name as a party in the case and substitute that of Deputy Attorney General Rod Rosenstein. The request contends the Whitaker appointment violates both a federal statute and the U.S. Constitution.

The underlying appeal, pressed by Barry Michaels of Nevada, originally named then-Attorney Jeff Sessions as a party. After Trump ousted Sessions and named Whitaker as his temporary successor this month, the court took what is normally a non-controversial step, substituting in the name of the acting attorney general.

Goldstein says the high court should resolve the Whitaker issue quickly to avert the possibility that thousands of criminal and immigration cases bearing his name could be called into question.

"This is the extraordinary case in which the identity of the successor is both contested and has important implications for the administration of justice nationally," Goldstein wrote.

Under the schedule proposed by Goldstein, the court could act on the request by early December.

Democrats in Congress have questioned whether Whitaker’s appointment is constitutional because the Senate didn’t confirm him for his most recent position as Sessions’s chief of staff. The Justice Department’s Office of Legal Counsel issued a 20-page legal opinion on Wednesday defending the appointment as legal.

Whitaker, 49, a former U.S. attorney for the Southern District of Iowa, had served as Sessions’ chief of staff since September 2017. Trump said he’ll nominate a permanent successor for Sessions at a later date.

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