Case of the Mondays? Dems Turn Up the Heat on Acting AG Matthew Whitaker and Trump with a Lawsuit

Matthew Whitaker, President Donald Trump‘s replacement for Attorney General Jeff Sessions, has been a source of controversy from the very moment the president asked Sessions to resign. First came the calls for Whitaker to recuse himself from the Russia investigation, then came the challenges to invalidate his appointment.

The latest such challenge comes from Sen. Richard Blumenthal (D-Conn.), Sen. Sheldon Whitehouse (R.I.), and Sen. Mazie Hirono (D-Hawaii) on Monday. The three congressional Democrats, who also happen to be members of the Senate Judiciary Committee (you may recall them grilling Brett Kavanaugh), are arguing that Whitaker is a principal officer and therefore needed to be confirmed by the Senate before official taking his post.

They are suing both Whitaker and President Donald Trump in their official capacities in the U.S. District Court for the District of Columbia.

“On November 7, 2018, after months of signaling his displeasure with Attorney General Jeff Sessions over a perceived lack of personal loyalty, Defendant President Trump asked for his resignation,” the lawsuit says. “Although the Department of Justice (DOJ) succession statute provides that “[i]n case of a vacancy in the office of Attorney General . . . the Deputy Attorney General may exercise all the duties of that office,” the President designated Defendant Matthew G. Whitaker to serve as Acting Attorney General, purportedly pursuant to a provision of the Federal Vacancies Reform Act of 1998 (FVRA), 5 U.S.C. § 3345(a)(3).”

“As Acting Attorney General, Mr. Whitaker will be able to exercise all of the powers and authorities possessed by the Attorney General, id., for as many as 210 days, and potentially many more,” the lawsuit continues.

This argument that Whitaker, even as acting Attorney General, is a principal officer has been made before by a number of people in the legal profession.

In a nutshell, the argument is that the Appointments Clause of the Constitution requires principal officers (which the Attorney General is) to be confirmed by the Senate. The Department of Justice’s Office of Legal Counsel (OLC) has argued, however, that the acting Attorney General is not a principal officer.

Why? “Although an Attorney General is a principal officer requiring Senate confirmation, someone who temporarily performs his duties is not,” the OLC said. “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.”

These Democratic lawmakers are essentially saying that even though Whitaker is temporary, he still has all of the powers of an Attorney General and should be confirmed.

Blumenthal, Whitehouse, Hirono v. Matthew Whitaker by Law&Crime on Scribd

[Image via Win McNamee/Getty Images]

Matt Naham is managing editor of Law&Crime. He formerly worked as news editor and weekend editor at Rare.

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