Maryland Challenges Whitaker’s Appointment as Acting Attorney General

(Bloomberg) -- Matthew Whitaker’s authority to serve as acting U.S. attorney general was challenged by the state of Maryland, which asked a federal judge to declare that his appointment is illegal.

The case may require the judge to decide who the chief U.S. law enforcement officer is, and whether President Donald Trump has power to appoint Whitaker in an acting capacity without Senate approval. The ruling, in what could become a key test of presidential power, will almost certainly be appealed to higher courts.

Whitaker, who was chief of staff to 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.

Maryland argued in a 36-page brief filed Tuesday that the Trump administration failed to follow a law that directly addresses Justice Department succession procedures. Under the statute, Sessions’s deputy, Rod Rosenstein, who is Senate-confirmed, should have become Acting Attorney General when Sessions stepped aside.

Instead, the state says, the administration looked to a different law that didn’t apply.

“The Attorney General’s succession statute and the Constitution protect the country against exactly what President Trump has attempted to do here – pluck an unqualified and unconfirmed partisan to be the nation’s chief law enforcement officer in order to protect himself rather than the rule of law,” Maryland Attorney General Brian Frosh said in a statement.

The White House declined to comment on Maryland’s filing. The Justice Department is writing a legal opinion justifying Trump’s decision to bypass normal procedures and name Whitaker, according to a person familiar with the matter. The opinion from the department’s Office of Legal Counsel is expected to be issued Tuesday.

Whitaker, who criticized the Russia probe in media appearances before he became Sessions’s chief of staff, is viewed by Democrats as a Trump loyalist who may take steps to shut down or narrow the investigation. Rosenstein had been supervising the inquiry since Sessions recused himself last year because of his involvement with the Trump campaign.

The filing comes in a pending lawsuit filed by Frosh that seeks an order preserving the Affordable Care Act, the Obama-era law that broadened access to health care. In Tuesday’s filing with U.S. District Judge Ellen Hollander in Baltimore, Frosh seeks an order barring the U.S. from responding to the suit while Whitaker is acting attorney general and a ruling declaring that Rosenstein is temporarily in charge.

President’s Override

“Without exception, the statutes have required that the Department of Justice’s second-in-command serve as Acting Attorney General, never allowing the President to override that rule,” Maryland argues in its brief.

Maryland says the Constitution and federal law require that only a “principal officer” confirmed by the Senate could serve as acting attorney general after Sessions stepped aside. Otherwise, a president could name “a carefully selected senior employee who he was confident would terminate or otherwise severely limit” an investigation in which he’s targeted, according to the filing.

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 criteria.

But Frosh argues that the Attorney General Succession Act -- a 1977 law with roots in the 1870s -- specifically says who may step in when the attorney general’s post is vacant, trumping the Vacancies Reform Act. The 1977 law makes the deputy attorney general -- in this case Rosenstein -- the acting attorney general until the Senate approves a replacement for Sessions, Frosh says.

To interpret the law otherwise would effectively nullify the Attorney General Succession Act, according to Maryland’s filing.

Whitaker “simply cannot dictate the Department of Justice’s policy and position on any issue in the case, nor oversee others who would articulate that position to this court, because he does not have the legal authority to do so,” Maryland says in his brief. “Nevertheless, Whitaker is currently supervising the Department of Justice in this litigation” calling into question ”every position taken by” the agency as the case moves ahead.

Rosenstein served as U.S. Attorney for Maryland from 2005 to 2017.

The case is State of Maryland v. U.S., 18-cv-2849, U.S. District Court, District of Maryland (Baltimore).

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