Wrongly appointed
After U.S. Attorney General Jeff Sessions’ resignation last week, President Trump moved quickly to install Matthew Whitaker as acting U.S. attorney general. That appointment is now being met with legal challenges.
On Monday, San Francisco City Attorney Dennis Herrera sent a letter to the Department of Justice questioning the legality of Whitaker’s appointment, noting that he had not been confirmed by a vote of the Senate. (The appointments clause of the Constitution requires very senior executive officials to have Senate confirmation.)
Herrera says San Francisco’s stake in Whitaker’s appointment includes the four ongoing cases San Francisco has filed against the Department of Justice.
Without “legal justification” for Whitaker’s role, Herrera added, “San Francisco may be forced to move the court to obtain additional guidance.”
The letter came as a surprise, to say the least.
But it’s not a stunt. Herrera is on to something, and he’s not acting alone.
On Tuesday, Maryland’s Democratic Attorney General, Brian Frosh, asked a federal judge for an injunction declaring that Whitaker is not the legitimate acting attorney general. Instead, Frosh is arguing, the position belongs to the deputy attorney general, Rod Rosenstein.
Rosenstein was confirmed by the Senate.
Plus, as Senate Minority Leader Chuck Schumer, D-N.Y., made clear in a letter he sent to President Trump last week, the Department of Justice’s statutory succession plan calls for the deputy attorney general to serve in case of a vacancy.
The political implications of Whitaker’s appointment are damaging enough to disqualify him for the position.
Whitaker has made numerous public criticisms of Special Counsel Robert Mueller’s investigation, including the suggestion that Sessions’ replacement could end the investigation by starving its funding. Congressional Democrats and a federal court have demanded answers about Whitaker’s potential impact on the investigation, and they are right to do so.
But Herrera and Frosh’s actions are a reminder that Whitaker’s appointment creates other major risks, too.
San Francisco’s pending lawsuits against the Department of Justice include defense of its “sanctuary city” status as well as civil rights protections.
In September, Maryland filed a suit in an effort to force the Trump administration to enforce contested portions of the Affordable Care Act.
These suits are a reminder that the stakes of every attorney general appointment are enormous. The courts must tell the Trump administration to follow the established legal procedure for filling this vacancy, and they must do so immediately.