Senate Democrats filed a lawsuit Monday challenging President Donald Trump’s appointment of Matthew Whitaker as acting attorney general.
The Hill reported that the suit is being brought by Sens. Richard Blumenthal of Connecticut, Sheldon Whitehouse of Rhode Island and Mazie Hirono of Hawaii in the U.S. District Court for the District of Columbia.
All three are members of the Senate Judiciary Committee, which is charged with reviewing appointments to the Department of Justice.
In their brief, the Democrats argue that Trump’s temporary appointment violates the Constitution’s appointments clause, requiring principal officers to be approved by the Senate.
“The U.S. Senate has not consented to Mr. Whitaker serving in any office within the federal government, let alone the highest office of the DOJ,” the senators said.
“Indeed, before deciding whether to give their consent to Mr. Whitaker serving in such a role, Plaintiffs and other members of the Senate would have the opportunity to consider his espoused legal views, his affiliation with a company that is under criminal investigation for defrauding consumers, and his public comments criticizing and proposing to curtail ongoing DOJ investigations that implicate the President.”
Whitaker replaced former Attorney General Jeff Sessions earlier this month after Trump requested the latter’s resignation.
Whitaker served as chief of staff to Sessions before being elevated to acting attorney general.
In a memo released last week, the Justice Department argued that Trump’s appointment complies with the requirements of the Constitution and federal statutes, through the Vacancies Reform Act, which allows for the staffing of vacant positions for up to seven months.
The DOJ pointed out that former President Barack Obama appointed two positions in this manner, and former President George W. Bush did it once.
“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,” Justice Department spokeswoman Kerri Kupec said in a statement in response to the Democrats’ suit. “To suggest otherwise is to ignore centuries of practice and precedent.”
The Daily Beast reported some constitutional scholars have argued the Vacancies Reform Act does not permit a president to temporarily appoint people to cabinet-level positions who have not received prior Senate approval for a post in the federal government.
The administration noted that Whitaker was confirmed by the Senate as a U.S. attorney in Iowa in 2004.
Democrat lawmakers — including Senate Minority Leader Chuck Schumer and House Minority Leader Nancy Pelosi — have contended Whitaker’s appointment was made with the intent of inferring with special counsel Robert Mueller’s Russia investigation, given his past critical statements to the media about the probe before coming to the DOJ in the fall of 2017, including in his assessment there was no collusion between the Trump campaign and Russia.
Trump was asked about the charge on Fox News Sunday.
“He’s going to do what’s right,” the president said, adding he will not get involved in whatever decisions Whitaker might make regarding Mueller.
“There is no collusion. He happened to be right,” Trump said of Whitaker’s prior commentary as a private citizen. “I mean, he said it. So if he said there is collusion, I’m supposed to be taking somebody that says there is?
“Because then I wouldn’t take him for two reasons, but the number one reason is the fact that he would have been wrong. If he said that there’s no collusion, he’s right,” the president stated.
Trump added, “I think we’ve wasted enough time on this witch hunt.”
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