Law & the Courts

Dem. Senators Sue to Block Whitaker’s Appointment as Acting Attorney General

Acting Attorney General Matthew Whitaker attends the Annual Veterans Appreciation Day Ceremony at the Justice Department in Washington, D.C., November 15, 2018. (Yuri Gripas/Reuters)

Three Democratic senators filed suit Monday challenging Matthew Whitaker’s appointment as acting attorney general.

Senators Mazie Hirono of Hawaii, Richard Blumenthal of Connecticut, and Sheldon Whitehouse of Rhode Island argued in their suit that Whitaker’s appointment is unconstitutional because he has not been confirmed by the Senate.

“Installing Matthew Whitaker so flagrantly defies constitutional law that any viewer of School House Rock would recognize it. Americans prize a system of checks and balances, which President Trump’s dictatorial appointment betrays,” Blumenthal said in a statement.

Whitehouse echoed that sentiment, subtly referencing the widely held belief that Trump elevated Whitaker, rather than Deputy Attorney General Rod Rosenstein, in order to exercise greater control over Special Counsel Robert Mueller’s investigation of Russian meddling in the 2016 election and possible collusion by the Trump campaign.

The Justice Department has defended Whitaker’s appointment through appeal to the Federal Vacancies Reform Act, which allows a president to appoint someone who has not been confirmed by the Senate to fill a temporary vacancy.

“There are over 160 instances in American history in which non-Senate confirmed persons performed, on a temporary basis, the duties of a Senate-confirmed position,” DOJ spokeswoman Kerri Kupec said Monday. “To suggest otherwise is to ignore centuries of practice and precedent.”

Kupec’s statement closely resembled an opinion issued by the DOJ Office of Legal Counsel last week.

“This office previously had advised that the president could designate a senior Department of Justice official, such as Mr. Whitaker, as Acting Attorney General,” the OLC wrote, adding that Whitaker, a former U.S. attorney for the Southern District of Iowa, has been serving “at a sufficiently senior pay level for over a year.”

Whitaker’s appointment to succeed Attorney General Jeff Sessions has prompted prominent Democrats to call for legislation protecting Mueller’s probe. While a number of centrist Republicans have joined Democrats in raising the alarm regarding Mueller’s vulnerability, Majority Leader Mitch McConnell has thus far dismissed calls for specific legislation to protect him as unnecessary.

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