Supreme Court asked to block appointment of Whitaker as AG

Clay Curtis
November 20, 2018

A trio of Senate Democrats will file a lawsuit alleging that Matthew Whitaker's appointment as acting attorney general is unconstitutional, and as such Whitaker must be removed from the role President Donald Trump handed him on November 7, the Daily Beast reported.

Senators Richard Blumenthal of Connecticut, Sheldon Whitehouse of Rhode Island and Mazie Hirono of Hawaii filed the lawsuit Monday in a federal court in Washington.

"We want the court to make clear that the Senate must confirm Matthew Whitaker's appointment as Acting Attorney General-otherwise this temporary appointment violates the Constitution's Appointments Clause", she wrote.

On Friday lawyers petitioning the Supreme Court to review their client's lawsuit against the Justice Department - a case originally known as Michaels v. Sessions - asked the high court to rule on whether Whitaker can legally stand for the department in the case.

The suit is the fourth legal challenge of Trump's appointment of Whitaker, following the ouster earlier this month of Attorney General Jeff Sessions, whom Trump had long disparaged for removing himself from oversight of special counsel Robert Mueller's investigation.

The appointment immediately caused confusion and consternation on Capitol Hill about who was now overseeing the Mueller investigation - Whitaker or the deputy attorney general, Rod Rosenstein - and whether Whitaker would be a threat to the inquiry.

In his first television interview since the midterm elections, President Donald Trump mounted an aggressive defense of his pick for acting attorney general and repeated some of his favorite misleading attacks against the Russian Federation investigation.

The justice department released a legal opinion last week that said Whitaker's appointment would not violate the clause because he is serving in an acting capacity.

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Democratic Senators claim the appointment of Whitaker poses a direct threat to special counsel Robert Mueller's ongoing Russian Federation investigation. He's a very smart person.

In the interview, Trump also suggested Mueller's probe is nearing its completion.

Responding to a petition to the Supreme Court to declare Whitaker's appointment illegal, department spokeswoman Kerri Kupec said it is consistent with laws governing presidential appointments of top-level officials and 'comports with. actions of U.S. presidents, both Republican and Democrat'.

It was the third lawsuit challenging Whitaker's appointment in one week.

Last Tuesday the state of Maryland asked a federal judge to block Whitaker from acting on behalf of the department in an ongoing court case on health care policy, likewise arguing that he had not been approved by the Senate.

In a series of tweets about the lawsuit this morning, Hirono said, "Donald Trump can not subvert the Constitution to protect himself and evade accountability".

In their own brief filed Monday, Miller's attorneys agreed with Mueller that Whitaker's new role had no impact on the arguments in the case.

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