Three Democratic senators are filing a lawsuit challenging the constitutionality of President Trump’s appointment of Matthew G. Whitaker to serve as acting attorney general, in the latest move by lawmakers to protect the probe being led by special counsel Robert S. Mueller III.
“Installing Matthew Whitaker so flagrantly defies constitutional law that any viewer of School House Rock would recognize it,” Blumenthal said in a statement, a reference to the educational series. “Americans prize a system of checks and balances, which President Trump’s dictatorial appointment betrays.”
In a joint news release announcing the move, the senators said they are being represented in the case by the nonprofit law firms Protect Democracy and the Constitutional Accountability Center.
.@SenBlumenthal, @SenWhitehouse, and I just filed suit to challenge @realDonaldTrump's unconstitutional appointment of Matthew Whitaker as Acting Attorney General. Donald Trump cannot subvert the Constitution to protect himself and evade accountability.— Senator Mazie Hirono (@maziehirono) November 19, 2018
Trump appointed Whitaker this month after forcing the resignation of Jeff Sessions as attorney general, setting off a firestorm of controversy. Some Democrats have called for Whitaker to recuse himself from overseeing the special-counsel investigation into Russian interference in the 2016 campaign due to his statements critical of the probe. Others, including the trio of senators who filed Monday’s lawsuit, have argued that Whitaker’s appointment violates the Constitution because Whitaker, who worked as Sessions’s chief of staff, is not a Senate-confirmed official.
Whitaker’s appointment also faces a lawsuit filed by Maryland Attorney General Brian E. Frosh (D) as well as a Supreme Court filing by lawyer Thomas C. Goldstein.
Amid the mounting legal challenges, the Justice Department’s Office of Legal Counsel released a 20-page memo last week defending the legality of the move, which it said was in line with similar appointments made by Presidents George W. Bush and Barack Obama. The OLC memo also states that the appointment was authorized by the 1998 Federal Vacancies Reform Act. Critics contend that other statutes as well as the Constitution should take precedence over that measure.
The Department of Justice responded to Goldstein’s Supreme Court filing in a statement Friday in which it maintained that Trump’s appointment of Whitaker is lawful and that it “comports with the Federal Vacancies Reform Act, the Appointments Clause of the U.S. Constitution, Supreme Court precedent, past Department of Justice opinions, and actions of U.S. Presidents, both Republican and Democrat.”
“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,” the department said in the statement. “To suggest otherwise is to ignore centuries of practice and precedent.”
Devlin Barrett, Matt Zapotosky and Karoun Demirjian contributed to this report.