Democrats Are Already Challenging Trump's Appointment For Attorney General

by Hannah Golden
Steve Pope/Getty Images News/Getty Images

A trio of Senate Democrats are taking matters into their own hands as to who might take over leadership at the Justice Department. New questions have arisen as to whether Matthew Whitaker will be blocked as attorney general thanks to a new lawsuit by Senate Democrats on Monday, Nov. 19 that claims that the appointment by President Donald Trump violated the Constitution. On Nov. 7, Trump made the controversial move to install Whitaker as acting attorney general, replacing former AG Jeff Sessions. Elite Daily reached out to the White House and the Department of Justice for comment on the lawsuit but did not receive a response by time of publication.

UPDATE: In an emailed statement, Department of Justice spokesperson Kerri Kupec tells Elite Daily that Trump's appointment of Whitaker as acting attorney general is "lawful" and in line with the Federal Vacancies Reform Act, the Constitution, and precedent from the Supreme Court and other presidents of both parties. "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. To suggest otherwise is to ignore centuries of practice and precedent," Kupec writes.

EARLIER: The lawsuit, brought by Democratic Sens. Mazie Hirono of Hawaii, Sheldon Whitehouse of Rhode Island, and Richard Blumenthal of Connecticut, is being carried out by two advocacy organizations on their behalf, per Politico. The suit names Whitaker and Trump as defendants.

Citing the Appointments Clause of the U.S. Constitution, which places a senatorial check on the president's power to appoint officers to positions in government, the lawsuit reads:

By designating Mr. Whitaker to perform the functions and duties of the attorney general without having been subject to Senate confirmation, President Trump has unlawfully denied the plaintiffs their right, as sitting U.S. senators, to vote on whether to consent to his appointment to that role.

It also cites an interpretation of the Constitution which suggests that its framers saw the role of Senate to confirm the president's nominees "as 'an excellent check upon a spirit of favoritism in the president.'" In other words, without a formal confirmation process (like the contentious one for Supreme Court Justice Brett Kavanaugh), the president could freely make appointments based solely on personal motivations — for instance, to protect his own personal interests — without any hearing to vet a nominee's background, qualifications, and fitness for the office. Elite Daily reached out to the White House and the Department of Justice for comment on the lawsuit but did not receive a response by time of publication.

"It's a flawed appointment," said House Intelligence Committee Chairman Adam Schiff, representative of California, on ABC news Sunday. "The fact that he's a temporary principal officer doesn't mean that that's any less subject to Senate confirmation." He emphasized that the Justice Department was beholden to follow a specific law designating a succession plan for vacancies, and that Trump's use of the Vacancies Reform Act to appoint Whitaker to override that designated plan was invalid and unconstitutional. The White House did not immediately respond to Elite Daily's request for comment on the remarks.

The development is the latest in the ongoing political drama out of Washington on the appointment. Whitaker, as reports found in the wake of his appointment, is said to be a Trump loyalist who has made clear that he feels the investigation into Russian collusion with the Trump presidential campaign being led by Special Counsel Robert Mueller has gone too far. The implications for having Whitaker directly oversee the investigation given that apparent bias provoked outcry among numerous corners of the political and legal world, and even sparked a nationwide protest to protect Mueller and his investigation the following day.

Monday's senatorial lawsuit suit is the second of its kind, following a lawsuit brought by the state of Maryland on Nov. 13 arguing that Trump had appointed an "unqualified" candidate to the role. The issue of Trump's hasty appointment, leapfrogging over Deputy Attorney General Rod Rosenstein as the natural choice per the line of succession, was also the subject of a challenge brought up in an ongoing U.S. Supreme Court case pertaining to gun rights. It's not clear at the moment what outcomes any of the three legal actions will have on the fate of Whitaker, but it's clear that the Justice Department's newest leader won't be given his title without a fight.