Las Vegas Review-Journal

Three Senate Democrats sue, aim to oust acting AG

- By Eric Tucker and Michael Balsamo The Associated Press

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.”

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Matthew Whitaker

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