Three Senate Democrats sue, aim to oust acting AG
WASHINGTON — Three Senate Democrats filed a lawsuit Monday arguing that acting Attorney General Matthew Whitaker’s appointment is unconstitutional and asking a federal judge to remove him.
The suit, filed by Sens. Richard Blumenthal of Connecticut, Mazie Hirono of Hawaii and Sheldon Whitehouse of Rhode Island, argues that Whitaker’s appointment violates the Constitution because he has not been confirmed by the Senate.
Whitaker was chief of staff to Attorney General Jeff Sessions and was elevated to the top job after Sessions was ousted by President Donald Trump on Nov. 7.
The Constitution’s appointments clause requires that the Senate con- firm all principal officials before they can serve in their office.
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. The lawsuit comes days after a Washington lawyer challenged Whitaker’s appointment in a pending Supreme Court case dealing with gun rights. The state of Maryland also made a similar court filing last week in a legal dispute with the Trump administration over the Affordable Care Act.
In a court filing Monday, the office of special counsel Robert Mueller said Whitaker’s appointment has “no effect” on a legal challenge to Mueller’s authority brought by an aide to former Trump confidant Roger Stone, Andrew Miller, who defied a grand jury subpoena last summer and was held in contempt by a judge.
The Justice Department issued a statement Monday defending Whitaker’s appointment as “lawful” and said it comports with the appointments clause, the Federal Vacancies Reform Act and legal precedent.
“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,” Justice Department spokeswoman Kerri Kupec said. “To suggest otherwise is to ignore centuries of practice and precedent.”