Suit filed over appointment of acting attorney general

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 by elevating Whitaker to the top job.

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 on the probe and amid concerns over his views on the scope of judicial authority. Whitaker became acting attorney general on Nov. 7 when Jeff Sessions was forced out. Whitaker had been Sessions’ chief of staff.

Lawyers in the office of Maryland Attorney General Brian Frosh argue that the job should have gone to Deputy Attorney General Rod Rosenstein. 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.”

Beyond that, the lawyers say, the Constitution requires the duties of the attorney general to be carried out only by someone with Senate confirmation.

The state argues Whitaker that Congress always intended for the attorney general to be confirmed by the Senate, given the national security and criminal justice powers of the position, including the authority to control an investigation into the president. Without a set chain of command, according to the filing, a president could pick and remove a series of attorneys general until he got his way.

A Justice Department spokeswoman had no immediate comment.

The Maryland filing was made Tuesday in a legal dispute with the Trump administration over the Affordable Care Act. That lawsuit names Sessions as an individual defendant.

The state asks the judge to substitute Rosenstein as the defendant in place of Sessions, a move that would effectively declare him the proper attorney general.