Supreme Court asked to block appointment of Whitaker as AG

Arturo Kim
November 21, 2018

Trump named the former prosecutor and television commentator to be acting attorney general on November 7 after forcing attorney general Jeff Sessions to resign. "None of those arguments is affected by the change in the identity of the Acting Attorney General while this case is on appeal".

Special counsel Robert Mueller said in court filings Monday that the recent leadership shake-up at the Justice Department had not changed anything in the legal fight over his authority.

Given acting Attorney General Matt Whitaker's already questionable track record on the Mueller investigation-among other issues-it was already an issue that President Trump had appointed someone who wasn't in the line of succession to the most powerful seat in the Justice Department.

The Justice Department issued a statement Monday defending Whitaker's appointment as "lawful" and said it comports with the Appointments Clause, the Federal Vacancies Reform Act and legal precedent.

Even though no challenge of Mueller's authority has up to now been successful, George Papadopoulos, the former Trump foreign policy advisor guilty of lying to the Federal Bureau of Investigation, recently revealed he was hopeful that Miller's appeal would be "successful", so that it would be shown that Mueller "lacked constitutional authority" to prosecute him in the first place. Rep. Jerrold Nadler, D-N.Y., the incoming chairman of the Judiciary Committee, has pledged to make Whitaker his first hearing witness and to subpoena him if necessary.

The state of Maryland is suing to have Whitaker removed and be replaced with Rod Rosenstein, who as deputy attorney general is Senate approved and was the second in command to Sessions.

The Justice Department memo pointed to various examples of such a temporary appointment dating back to the earliest days of USA history, although it acknowledged that there was very little precedent for an acting attorney general who did not undergo confirmation.

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But now Rosenstein has had to step aside from overseeing Mueller, leaving that power to Whitaker.

With the new lawsuit, there's a chance that Democrats could fight back against President Trump's latest attempt to rein in the Mueller investigation. "He's a very smart person, a very respected person", Trump said.

In the interview, Trump also suggested Mueller's probe is nearing its completion. He's going to do what's right.

Responding to a petition to the Supreme Court to declare Whitaker's appointment illegal, department spokeswoman Kerri Kupec said it is consistent with laws governing presidential appointments of top-level officials and "comports with. actions of USA presidents, both Republican and Democrat". With this new suit, those same questions about executive power will be heard in a federal court room.

"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", they wrote.

Any individual adversely affected by a direct action taken by Whitaker would have legal standing to bring a lawsuit challenging the legitimacy of his appointment, Vladeck said. Blumenthal argued in a statement that Whitaker must be confirmed by the Senate in order to lawfully serve as acting attorney general.

Two non-partisan, non-profit law firms represent the Senators in this case: Protect Democracy and the Constitutional Accountability Center.

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