The state of Maryland is expected to challenge the appointment of Matthew Whitaker as acting attorney general in court on Tuesday on the grounds that president Trump cannot appoint someone who lacks Senate confirmation to lead an agency.
The request for an injunction blocking Whitaker’s appointment is part of an ongoing lawsuit the state filed against former attorney general Jeff Sessions in his official capacity.
Since Sessions has been fired, Maryland is asking the court to treat deputy attorney general Rod Rosenstein as the acting attorney general for purposes of the lawsuit, on the basis that Trump was constitutionally obligated to appoint Rosenstein to serve until a permanent successor could be chosen, given he was next in the chain of command and has already been confirmed by the Senate.
Trump cannot “bypass the constitutional and statutory requirements for appointing someone to that office,” the plaintiffs said in a draft filing obtained by the New York Times.
Leading Democrats castigated Trump for appointing Whitaker over Rosenstein and have suggested, based on Whitaker’s previous criticisms of the Mueller probe, that Trump made the selection to insulate himself from any potential fallout resulting from Mueller’s forthcoming report.
While the law allows Trump to fill a temporary vacancy with someone who lacks Senate confirmation, Maryland argues in the suit that that statute does not apply to “principal” officers, such as agency-heads. Should a president be given full autonomy in appointing an acting attorney general, the plaintiffs suggest, he might choose a “carefully selected senior employee who he was confident would terminate or otherwise severely limit” the ongoing investigation into his campaign.
The underlying lawsuit that prompted the injunction was filed to prevent the Department of Justice from dismantling certain provisions of Obamacare, including protections for pre-existing conditions and the individual mandate.