WASHINGTON — Acting Attorney General Matthew Whitaker, President Donald Trump's choice to temporarily replace Jeff Sessions at the Justice Department, is facing a legal challenge to his appointment after less than a week on the job.
Maryland Attorney General Brian Frosh's office filed court papers Tuesday arguing that because Whitaker isn't a Senate-confirmed official, his appointment violates both federal law and the US Constitution. Maryland's lawyers are raising the challenge in a lawsuit they filed in September against the Trump administration, seeking to defend sections of the Affordable Care Act against efforts by Republicans to dismantle it. NPR first reported Maryland's plan to challenge Whitaker's appointment.
Sessions was named as a defendant in the Obamacare case in his official capacity, as often happens when someone sues a federal agency. Normally, when there's a change in leadership, the name of the official gets changed with little fanfare. But Maryland is arguing that Deputy Attorney General Rod Rosenstein, not Whitaker, should be substituted in the lawsuit as the current head of the Justice Department. The named official would be responsible for carrying out any court order, so it's important for the right person to be on the docket, Maryland's lawyers argue.
"Few positions are more critical than that of 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."
Sessions was forced out on Nov. 7, the day after the midterm elections; Chief of Staff John Kelly called that morning and asked Sessions for his resignation. Trump appointed Whitaker, who had served as Sessions' chief of staff since last fall, as the new acting attorney general.
Democrats immediately called for Whitaker to recuse himself from any role managing special counsel Robert Mueller's investigation into Russian interference in the 2016 election, pointing to his public criticism of the probe. Rosenstein has been overseeing Mueller's work since Sessions recused himself, but Whitaker was expected to take over barring any ethical conflicts or broader problems with the validity of his appointment. Legal scholars and former Justice Department officials have been questioning the constitutionality of Whitaker's appointment.
Under the Appointments Clause of the Constitution, "principal" officers — such as the attorney general — must be appointed by the president and confirmed by the Senate. If the attorney general dies, resigns, or is otherwise unable to serve, the first deputy, who in this case is Rosenstein, becomes the acting attorney general under a section of federal law specific to attorney general successions. But there's also a law called the Federal Vacancies Reform Act, which gives the president the power to appoint someone as an acting official if they're already in a senior position and have been there for more than three months. Whitaker has been Sessions' chief of staff since last fall.
Maryland's lawyers argue that the attorney general succession law and the Appointments Clause should govern the aftermath of Sessions' departure from the Justice Department, and that means Rosenstein should be in charge. They contend that Congress made clear it wanted a senior, Senate-confirmed official to serve as attorney general and in other high-level executive branch positions.
"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. The Attorney General Succession Act makes that impossible; without it, the possibility seems far from theoretical," Maryland's lawyers wrote in Tuesday's filing.
Regardless of what federal law says, Maryland's lawyers argue that Whitaker's appointment is unconstitutional. There was no "emergency" that would warrant departing from the Appointments Clause, they contend, saying that the vacancy at the Justice Department was of Trump's own making.
The Trump administration dealt with a legal challenge to the president's pick to run an agency last year, following the resignation of Richard Cordray as director of the Consumer Financial Protection Bureau. Trump appointed Mick Mulvaney, also the director of the Office of Management and Budget, to serve as the acting head, but Cordray's deputy, Leandra English, went to court arguing that she was the rightful acting successor under the law that created the bureau, the Dodd-Frank Act.
A federal judge sided with the administration, finding that the Federal Vacancies Reform Act could override the provisions of Dodd-Frank that English cited. Maryland's lawyers noted that in finding that Dodd-Frank didn't override the vacancies law, the judge pointed to the attorney general succession law as an example of Congress explicitly adopting language that seemed aimed at displacing the vacancies reform law.
There's been no substantive activity in Maryland's Obamacare lawsuit since it was filed in federal district court in Baltimore in September. Maryland's lawyers are asking US District Judge Ellen Hollander to issue an order declaring Rosenstein as the acting attorney general and that Whitaker cannot exercise any authority as acting attorney general in the litigation.
Justice Department spokesperson Kerri Kupec declined to comment.
Updated with a response from the Justice Department.