Lawyers challenging the appointment of Matthew G. Whitaker as acting attorney general asked the Supreme Court on Friday to step in and declare that someone else should serve in the role.
The filing by lawyer Thomas C. Goldstein, who earlier this week filed a motion in federal court on behalf of Maryland’s attorney general challenging Whitaker’s appointment, is a novel attempt to undo President Trump’s choice to lead the Justice Department after Jeff Sessions was forced out as attorney general on Nov. 7.
Whitaker was serving as Sessions’s chief of staff, and Goldstein and other critics argue it is illegal for a government official to run the agency — even temporarily — if he is not Senate-confirmed.
It is unclear when the Supreme Court could consider Goldstein’s motion.
Concerns about Whitaker’s appointment stem partly from unanswered questions about what, if anything, the new acting attorney general may do to try to steer the ongoing probe of Russian interference in the 2016 election. Led by special counsel Robert S. Mueller III, the investigation is examining whether Trump’s campaign conspired with Moscow to influence the election’s outcome. On Thursday, Sen. Lindsey O. Graham (R-S.C.) said that Whitaker told him he has no intention of recusing from the Russia probe, or shuttering it.
Goldstein has asked the Supreme Court to clear up any confusion about whether Whitaker or Deputy Attorney General Rod J. Rosenstein has the legal authority to fill the job.
“This is the extraordinary case in which the identity of the successor is both contested and has important implications for the administration of justice nationally,” the filing argues. “This motion seeks to resolve the dispute.”
Goldstein said legal challenges to Whitaker’s appointment will keep popping up in various court cases around the country, and the Supreme Court should weigh in to settle the issue.
“This is turning into a mess,” he said. “These things are going to start boiling up.”
A Justice Department spokeswoman did not immediately comment on Goldstein’s filing.
On Wednesday, officials there issued a legal analysis concluding that a senior government worker like Whitaker can serve as the acting attorney general for up to seven months, or longer if a nomination for a permanent successor is sent to the Senate.
The Justice Department’s Office of Legal Counsel, which provides legal guidance to the federal government, said in its 20-page memo that past practice, court rulings and legal analysis show the Whitaker appointment is legal and expressly authorized by the 1998 Federal Vacancies Reform Act.
The memo also notes that before Sessions was forced out, the White House had sought advice from the OLC and was told that Whitaker could be appointed.
“As all three branches of government have long recognized, the president may designate an acting official to perform the duties of a vacant principal office, including a Cabinet office, even when the acting official has not been confirmed by the Senate,” the memo said.
The memo notes that Trump has done so six times, while President Barack Obama did it twice and President George W. Bush did it once.
The legal opinion also concludes that even if Trump had fired Sessions, he could have replaced him with a non-Senate-confirmed government employee for a period of up to seven months, or more if a nomination was pending. By that reasoning, the president has the power to remove Cabinet-level officials at will and put their replacements in charge of major government branches for half a year or more.
The OLC’s legal analysis found 160 such instances — all of them occurring before 1860 — in which a non-Senate-confirmed official became the acting head of an agency.