Acting AG appointment faces challenge from Md.
WASHINGTON — Maryland is challenging the appointment of Matthew Whitaker as the new U.S. acting attorney general, arguing that President Donald Trump sidestepped the Constitution and the Justice Department’s own succession plan.
The Tuesday filing sets up a court challenge between a state and the federal government over the legitimacy of the country’s chief law enforcement officer and foreshadows the likelihood of additional cases that present the same issues.
It comes as Democrats call on Whitaker to recuse himself from overseeing the special counsel’s Russia investigation because of critical comments he has made about it in the past and amid concerns over his views on the scope of judicial authority.
In their filing, lawyers in the office of Maryland Attorney General Brian Frosh argue the job should have gone to Deputy Attorney General Rod Rosenstein instead of to Whitaker.
They cite a statute governing the line of succession at the Justice Department that says that in the case of a vacancy in the attorney general position, the deputy attorney general may exercise “all the duties of that office.” If neither is available for the job, according to that statute, then the associate attorney general is supposed to be elevated.
Besides that, the lawyers say, the Constitution requires the duties of the attorney general to be carried out only by someone confirmed by the Senate.
The state argues that Congress always intended for an attorney general to be confirmed by the Senate given the national security and criminal justice powers inherent in the position, including the authority to control an investigation into the president. Without an established chain of command, according to the filing, presidents could select and then remove a series of attorneys general until they got their way.