A group of Senate Democrats is suing to block Matt Whitaker from serving as acting attorney general on grounds that his placement in the post was unconstitutional.
The suit, which is being filed by Sens. Richard Blumenthal (D-CT), Sheldon Whitehouse (D-RI), and Mazie K. Hirono (D-HI) in U.S. District Court for the District of Columbia, is the latest and most aggressive salvo against the Whitaker appointment. Last week, the Department of Justice Office of Legal Counsel defended Whitaker’s promotion in a memo that drew immediate criticism for its expansive understanding of the president’s power. That view is in hot dispute, including from the state of Maryland, which petitioned a federal judge to stop him from serving on constitutional grounds.
The latest suit, which was brought by the groups Protect Democracy and the Constitutional Accountability Center for the Senators, argues that Whitaker’s appointment violates the Constitution’s Appointments Clause because the U.S. Senate did not confirm him to his prior post. Whitaker was chief of staff to now-former Attorney General Jeff Sessions before President Trump elevated him to his current gig. Trump did so through the Vacancies Reform Act, which allows the staffing of vacant positions for up to 210 days. But many constitutional scholars have argued that the Vacancies Reform Act doesn’t let the president appoint people to cabinet-level positions who haven’t been senate confirmed. The Senate confirmed Whitaker in 2004 as a U.S. Attorney in Iowa, but his opponents—most prominently George Conway, the husband of White House senior staffer Kellyanne Conway, and former Solicitor General Neal Katyal—say that confirmation has effectively lapsed.
First, the appointment is legal. The appointment passed muster with the DOJ:
The Justice Department told President Donald Trump that Matthew Whitaker could hold the post of acting attorney general, before Trump appointed him to that post.
News of that preapproval comes as critics have said Trump violated the Constitution by installing the 49-year-old Whitaker on a temporary basis as the nation's top law enforcement official without first getting Senate approval.
That argument was based on the fact that Whitaker had not held a Senate-approved position before he was appointed acting AG. The state of Maryland cited that claim when it filed a lawsuit Tuesday challenging Whitaker's appointment, calling him an "unqualified" partisan.
But NBC News reported Wednesday that the department told Trump, before he tapped Whitaker for the job, that he could appoint Whitaker as acting head of Justice.
Whitaker was named to the post a week ago, after Trump forced out Attorney General Jeff Sessions.
His temporary appointment immediately sparked concerns that he will squelch the ongoing investigation by special counsel Robert Mueller's office into Russian interference in the 2016 presidential election, and possible coordinating with the Trump campaign in that effort.
Whitaker before joining the Justice Department had been a critic of Mueller's probe. He now has oversight of Mueller's office, due to his appointment as acting attorney general.
Whitaker, a former U.S. attorney for the Southern District of Iowa, had been Sessions' chief of staff. He will be allowed to serve as acting attorney general for at up to at least 210 days.
Steven Engel, assistant attorney general for the Office of Legal Counsel, said in a written opinion cited by NBC News that his office told the White House — before Whitaker was appointed — that the president "could designate a senior Department of Justice official, such as Whitaker, as acting attorney general."
According to Engel's opinion, the Justice Department has identified more than 160 occasions in which a president appointed government officials who not been confirmed by the Senate to serve in high-level positions, NBC News reported.
The larger question is why are Democrats so against the appointment? Well the obvious answer is Democrats believe Whitaker, who previouly critized the Special Counsel investigation in 2016 election interference by Russia, will fire Mueller and end the investigation, or somehow protect Trump should Mueller throw down the hammer. That is an obvious concern not only to Democrats but Republicans as well. For Republicans they are so concerned that Senator Flake and a few others want to protect Mueller though legislation. That alone is a constitutional concern, as Trump constitutionally can fire Mueller at any point, for any reason and be within his constitutional authority.
Is is no indication that's going to happen at this point.
I think Democrats are worried about something much more and that's is Whitaker might - finally - take the action againt Hillary Clinton's email scandal, Unranium deals with Russia along with a litany of other scandles that gathered dust during Session's tenure. That's the last thing they would want to happen entering into 2020, but more to the point, Hillary's alledged crimes could bring down a large part of the Democrat apparatus, along with components of the FBI, CIA, and the rest of the "dark state", that on a continual basis endangers the Trump administration.
Sessions was too weak, along with an anemic GOP house and Senate over the last 8 years that produced nothing of merit in investigations. No, what Democrats really fear is a new sheriff in town and the wrath - long too overdue - he may bring.
November 19, 2018
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