Whitaker's appointment as Acting Attorney General faces court challenge

Now, Whitaker’s appointment is facing a court challenge. The state of Maryland is expected to ask a federal judge Tuesday for an injunction, declaring that Whitaker is not the legitimate acting attorney general as a matter of law, and that the position — and all its powers — instead rightfully belongs to the deputy attorney general, Rod J. Rosenstein.

The legal action escalates the uproar surrounding Trump’s installation of Whitaker as the nation’s top law-enforcement officer, from criticism of his basic credentials and his views on the Russia investigation to challenges to the legality of his appointment. Last week, Sen. Chuck Schumer of New York, the Senate’s top Democrat, sent a letter demanding to know why Trump chose an “unconfirmed political appointee” as acting attorney general, rather than follow the Justice Department’s statutory line of succession.

Maryland is asking a judge — Ellen L. Hollander of the U.S. District Court for the District of Maryland, a 2010 Obama appointee — to rule on who is the real acting attorney general as part of a lawsuit in which it sued Sessions in his official capacity. Because Sessions is no longer the attorney general, the judge must substitute his successor as a defendant in the litigation, so she has to decide who that successor legally is.

The stakes are extraordinary. The acting attorney general is the most powerful law enforcement official in the United States and wields tremendous influence, from overseeing criminal and national-security investigations to deciding how to enforce immigration, environmental and civil rights laws.

The head of the Justice Department also supervises Robert Mueller , the special counsel investigating whether Trump’s associates conspired with Russia in its election interference and whether Trump tried to obstruct that inquiry. A Trump loyalist, Whitaker has been an outspoken critic of the Russia investigation, and interviewed last year for the job of the White House’s top lawyer charged with countering it.

Maryland filed the underlying litigation in response to a separate lawsuit by Texas and several other Republican-controlled states challenging the Affordable Care Act. They argue that the law’s so-called individual mandate to obtain health insurance, which the Supreme Court upheld in 2012, became unconstitutional after Congress last year reduced its tax penalty to nothing.

In June, the Justice Department under Sessions agreed with Texas and said key parts of the law — including the provision that protects people with pre-existing conditions — must be struck down. In response, Maryland filed its own lawsuit in September. It asked Hollander to declare that the contested parts of the insurance law are constitutional and to direct the government, and Sessions in particular, to enforce it as written.

The state’s attorney general, Brian E. Frosh, working with the law firm of Goldstein & Russell, brought the litigation. Thomas C. Goldstein, a partner in the firm, said they planned to file the motion Tuesday morning.

Neither the judge in the Texas lawsuit nor Hollander has ruled on the Affordable Care Act issues. But because the government’s enforcement of the act is set to change on Jan. 1, Maryland said it needed an injunction now to prevent Whitaker from illegitimately controlling the Justice Department’s policy and legal positions.

Among other things, the lawsuit cited Whitaker’s declaration, in 2014, that the 2012 Supreme Court ruling upholding the Affordable Care Act was one of the worst rulings in the court’s history.

In defending Whitaker’s appointment as lawful, the Trump administration has pointed to the Federal Vacancies Reform Act, a 1998 statute. It says that a president may temporarily fill a vacancy for a position that normally requires Senate confirmation with any senior official who has been in the department for at least 90 days. As Sessions’ former chief of staff, Whitaker meets that criteria.

But Maryland’s court filing argues that the law applies to routine positions, not to the attorney general. For one thing, it noted, another statute specifically says the deputy attorney general is next in line at the Justice Department. A more specific law, the lawsuit argues, takes precedence when in a conflict with a more general law.

There were good reasons for lawmakers to create an exception that gives the president less flexibility when it comes to replacing the attorney general, the Maryland filing argues. Among them, without that check, a president under investigation could install a “carefully selected senior employee who he was confident would terminate or otherwise severely limit” the inquiry.

The Maryland filing also cites a part of the Constitution, known as the appointments clause, which requires “principal” officers — very powerful and senior officials, like the attorney general — to have been confirmed by the Senate.

In a phone call last week, Whitaker told Sen. Charles E. Grassley of Iowa, the Republican chairman of the Judiciary Committee, that a 2003 Office of Legal Counsel opinion held that the president could temporarily appoint him to be acting attorney general even though the Senate had not confirmed him, Grassley has said.

The 2003 opinion relied on an 1898 Supreme Court case about a man who was appointed the acting American consul in modern-day Thailand when the Senate-confirmed consul became sick, and no Senate-confirmed deputy consul was available.

But the Maryland court filing argues that the circumstances of the 1898 case were too different from today’s situation for it to apply. Among other things, it notes that the office of attorney general did not become vacant through an unexpected emergency, and that several Senate-confirmed Justice Department officials, like Rosenstein, are available.

The sweeping power of the attorney general “calls for the highest levels of integrity and personal judgment, prerequisites safeguarded by the Constitution’s command that principal officers be subject to the oversight and check provided by Senate confirmation,” the filing said.

The New York Times

Whitaker's appointment as Acting Attorney General faces court challenge

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