Democratic senators challenge Whitaker

WASHINGTON — Three Democratic senators asked a U.S. District Court judge Monday to issue an injunction barring Matthew Whitaker from exercising the powers of head of the Justice Department, arguing that President Donald Trump’s installation of Whitaker as acting attorney general violated the Constitution.

The senators — Richard Blumenthal of Connecticut, Mazie K. Hirono of Hawaii and Sheldon Whitehouse of Rhode Island — sit on the Judiciary Committee, which conducts confirmation hearings for attorney general nominees. They argued that an official who had not been Senate-confirmed could not run the Justice Department, even temporarily.

“Because the Senate has not consented to Mr. Whitaker serving as an officer of the United States, his designation by the president to perform the functions and duties of the attorney general violates the Appointments Clause” of the Constitution, the complaint said. “If allowed to stand, Mr. Whitaker’s appointment would create a road map for the evasion of the constitutionally prescribed Senate advice-and-consent role.”

The Justice Department last week disclosed an Office of Legal Counsel memo arguing that Whitaker’s temporary appointment was lawful under the Vacancies Reform Act of 1998.

The lawsuit was the latest effort by critics of Trump’s move, which followed his ousting of Attorney General Jeff Sessions this month, to temporarily install Whitaker in his place as the nation’s top law enforcement official. Without control of either chamber of Congress — they will take over the House of Representatives in January — Democrats have few other tools to apply pressure for now.

Whitaker, whom the White House previously installed as Sessions’ chief of staff, is widely seen as a Trump loyalist. His powers now include supervising Robert Mueller, the special counsel running the investigation into whether Trump’s associates conspired with Russia when it interfered in the 2016 election. Whitaker has been an outspoken critic of that investigation. He has separately come under scrutiny for his role with a company that a federal judge shut down for defrauding its customers.

In an interview with Fox News that aired Sunday, Trump said that he did not know that Whitaker had criticized the Russia investigation before he designated him acting attorney general, circumventing Deputy Attorney General Rod Rosenstein. Trump also said he would not stop Whitaker if he decided to limit or curtail the investigation.

The Justice Department’s memo also cited an 1898 Supreme Court opinion and numerous historical examples in support of the proposition that an office whose holder must normally be Senate-confirmed can be temporarily filled by an acting official who has not gone through the confirmation process.

“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,” Kerri Kupec, a Justice Department spokeswoman, said in a statement Monday. “To suggest otherwise is to ignore centuries of practice and precedent.”

The Justice Department memo pointed to various examples of such a temporary appointment dating back to the earliest days of U.S. history, although it acknowledged that there was very little precedent for an acting attorney general who did not undergo confirmation. There was such an acting attorney general in 1866 for several days, but that was before Congress had created a Justice Department for that official to supervise.

The new lawsuit, filed in the U.S. District Court for the District of Columbia, was brought on behalf of the senators by two watchdog groups, Protect Democracy and the Constitutional Accountability Center.