The state of Maryland is challenging the legality of President Trump’s appointment of Matthew Whitaker as acting attorney general, arguing the move violates the Constitution and federal statute.
Maryland Attorney General Brian Frosh asked the U.S. District Court in Maryland to recognize Deputy Attorney General Rod Rosenstein, not Whitaker, as the nation’s acting chief law enforcement officer, according to documents filed with the court Tuesday.
The state of Maryland is using a lawsuit filed in September that involves provisions of the Affordable Care Act as the vehicle for its challenge to Trump’s move.
In court filings, Maryland asked U.S. District Court in Maryland to block the Justice Department from responding to the lawsuit and proceeding in the case with Whitaker appearing in his capacity as acting attorney general.
Whitaker, the state said, does not have the authority to represent the U.S. government.
“Few positions are more critical than that of the U.S. attorney general, an office that wields enormous enforcement power and authority over the lives of all Americans,” Frosh said in a statement. “President Trump’s brazen attempt to flout the law and Constitution in bypassing Deputy U.S. Attorney General Rosenstein in favor of a partisan and unqualified staffer cannot stand.”
Lawyers for Maryland argue that Whitaker’s appointment as acting attorney general violates the Constitution’s Appointments Clause and federal law.
The Appointments Clause requires “principal” officers, such as the attorney general, to be confirmed by the Senate.
Under the statute regarding the succession of the attorney general, meanwhile, the Senate-confirmed deputy attorney general has the authority to serve in the acting role in the event of a vacancy or the attorney general’s absence.
“Absent the Attorney General Succession Act, the President could fire the Attorney General (or demand his resignation), then appoint a hand-picked junior Senate-confirmed officer from an entirely different agency, or a carefully selected senior employee who he was confident would terminate or otherwise severely limit the investigation,” Maryland’s lawyers wrote in court documents.
“Indeed, the President could appoint and then remove a series of hand- picked individuals as Acting Attorney General until one finally acceded to the President’s demands, with the Senate left powerless to intercede,” they continued. “The Attorney General Succession Act makes that impossible; without it, the possibility seems far from theoretical.”
Rosenstein, Maryland’s lawyers said, is the acting attorney general “as a matter of law.”
Trump forced Attorney General Jeff Sessions to resign his post last week and subsequently announced via Twitter that Whitaker, Sessions’ chief of staff, would replace him on a temporary basis.
Whitaker, though, has been rebuked by congressional Democrats who argue that he should recuse himself from special counsel Robert Mueller’s ongoing investigation into Russian meddling in the 2016 election.
Democrats have raised concerns about Whitaker’s prior comments about Mueller’s investigation, as well as his qualifications to serve as attorney general.
Rosenstein had been overseeing Mueller’s probe after Sessions recused himself in March 2017.
Whitaker’s appointment has come under scrutiny by top lawyers who argue Trump ran afoul of the Constitution when he named him as acting attorney general.
