On November 19, Senators Richard Blumenthal (D-Connecticut), Sheldon Whitehouse (D-Rhode Island) and Mazie Hirono (D-Hawaii) filed a lawsuit against Whitaker and Trump in the United States District Court for the District of Columbia.
They are asking the district court for a declaratory judgment stating that Whitaker and Trump are violating the Appointments Clause. The senators also request an injunction preventing Whitaker from performing the functions and duties of the office of the attorney general.
The three senators claim that Whitaker's appointment illegally deprives them of the right to vote on confirmation as required by the Appointments Clause. The senators wrote that they and their Senate colleagues should "have the opportunity to consider [Whitaker's] 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."
Blumenthal, Whitehouse and Hirono note that as acting attorney general, Whitaker "would have vast ability to shape whether and how the laws enacted by Congress are enforced and the money appropriated by Congress is spent. He would also have a critical role in upholding the Constitution of the United States and ensuring equal justice under the law for all Americans."
Moreover, they add, "unless and until he recuses himself, Mr. Whitaker would have supervisory power over at least two federal investigations related to the President."
Attorney Tom Goldstein is raising similar legal challenges to Whitaker's appointment in two cases, one brought by the state of Maryland involving the constitutionality of the individual mandate in the Affordable Care Act (ACA). The other challenge was filed on behalf of the petitioner in Michaels v. Sessions, a gun rights case.
Maryland is asking the US District Court for the District of Maryland to order that Rosenstein is the acting attorney general and requesting that the court substitute Rosenstein (instead of Whitaker) for Sessions as the proper attorney general defendant in the pending ACA lawsuit.
The petitioner in Michaels v. Sessions is also asking that Rosenstein be substituted for Sessions, this time in a petition for certiorari to the US Supreme Court. Barry Michaels is requesting the high court review the lower court's denial of his challenge to the constitutionality of the federal ban on possession of firearms for those convicted of felonies.
On November 11, Nancy Pelosi (House Democratic leader), Charles Schumer (Senate Democratic leader), Jerrold Nadler (ranking member, House Judiciary Committee), Dianne Feinstein (ranking member, Senate Judiciary Committee), Adam Schiff (ranking member, House Intelligence Committee), Mark Warner (vice chairman, Senate Intelligence Committee) and Elijah Cummings (ranking member, House Oversight and Government Reform Committee) sent a letter to Lee Loftus, assistant attorney general for administration and designated agency ethics officer.
In the letter, the congressional leaders raised "serious ethical considerations" requiring Whitaker's "immediate recusal from any involvement" with the Mueller investigation. They cited Whitaker's "history of hostile statements" toward the Mueller probe, including "televised statements suggesting that the investigation be defunded or subjected to strict limitations in scope." The legislators wrote that Whitaker "appears to have troubling conflicts of interest that may also require his recusal."
Trump's cynical end run around the Appointments Clause and the Attorney General Succession Act cannot stand. Whitaker's appointment as acting attorney general must be vacated and Rosenstein named acting attorney general. It is essential that the Mueller investigation proceed unimpeded.
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