Democratic senators sue over Whitaker’s appointment as AG

Senate Democrats File Lawsuit to Block Trump’s Appointment of Matt Whitaker

"Sheldon Whitehouse (D-RI), and Mazie K. Hirono (D-HI) in U.S. District Court for the District of Columbia" and seeks to stop him from exercising powers of the U.S. attorney general.

Republican Senator Jeff Flake of Arizona, who is retiring at the end of this year, has said he will refuse to advance any judicial nominees in the Judiciary Committee or confirm any judges on the Senate floor until the Mueller bill is brought to the floor for a vote.

Had the senators had a chance to consider Whitaker, they could have reviewed his criticism of special counsel Robert Mueller's investigation, the suit says.

"Installing Matthew Whitaker so flagrantly defies constitutional law that any viewer of Schoolhouse Rock would recognize it. President Trump is denying Senators our constitutional obligation and opportunity to do our job: scrutinizing the nomination of our nation's top law enforcement official".

A challenge to Whitaker's appointment was also made as part of a Supreme Court case on gun rights.

Under the Appointments Clause of the U.S. Constitution, ambassadors, federal judges, and other "Officers of the United States" who are nominated by the president must be confirmed by the U.S. Senate under the body's so-called advise and consent powers. He argues Mueller has been effectively operating as a "U.S. Attorney at large", and as such, should have been appointed by the president and confirmed by the Senate - neither of which occurred.

It also accused Trump of violating a federal law that establishes the line of succession if the attorney general post becomes vacant, giving full authority to the deputy attorney general.

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The Justice Department memo pointed to various examples of such a temporary appointment dating back to the earliest days of USA history, although it acknowledged that there was very little precedent for an acting attorney general who did not undergo confirmation.

"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", the opinion stated.

In a November 8 New York Times opinion article, Democratic lawyer Neal Katyal and George Conway, a conservative and husband of Trump advisor Kellyanne Conway, argued that it does, and called Whitaker's appointment under the FVRA unconstitutional.

In 2017, Whitaker argued that a "conditional crisis" would erupt if the Mueller investigated President Trump's finances or those close to him. Trump has repeatedly called the investigation a "witch hunt".

The Justice Department, for the second time in recent days, defended Whitaker's appointment as legal.

"Because Whitaker's appointment does not satisfy the Appointments Clause, it is unlawful, and he can not serve as Acting Attorney General", they said.

Justice Department spokeswoman Kerri Kupec issued a statement defending Trump's designation of Whitaker as lawful, saying it comports with the Federal Vacancies Reform Act, the Constitution, Supreme Court precedent, past department opinions and actions of presidents from both parties.

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