Not content to sit back and let the State of Maryland do all the heavy lifting (and reap all of the credit should it succeed) three of the most publicity hungry Democrats in the Upper Chamber are reportedly filing a federal lawsuit to challenge Acting AG Matthew Whitaker's appointment, arguing that President Trump's decision to elevate Whitaker over Deputy AG Rod Rosenstein using a controversial federal succession law was unconstitutional.
According to the Daily Beast, which first reported on the lawsuit, the senators are hoping a federal judge will remove Whitaker from his post immediately, allowing Rosenstein to serve as acting AG until the White House can shepherd its nominee through the Senate. The lawsuit comes after the DOJ's office of legal counsel affirmed Whitaker's appointment on constitutional grounds last week.
The suit, which is being filed by Sens. Richard Blumenthal (D-CT), Sheldon Whitehouse (D-RI), and Mazie K. Hirono (D-HI) in U.S. District Court for the District of Columbia, is the latest and most aggressive salvo against the Whitaker appointment. Last week, the Department of Justice Office of Legal Counsel defended Whitaker’s promotion in a memo that drew immediate criticism for its expansive understanding of the president’s power. That view is in hot dispute, including from the state of Maryland, which petitioned a federal judge to stop him from serving on constitutional grounds.
The Senators are working with two groups, Protect Democracy and the Constitutional Accountability Center, on the lawsuit. Their argument hinges on the notion that Whitaker wasn't confirmed by the Senate, and is therefore ineligible to serve. Though he was confirmed years ago as US Attorney for the Southern District of Iowa under George W Bush, the suit argues that this confirmation has effectively lapsed. By comparison, the White House has argued that Whitaker's position as chief of staff to Session constituted a "senior role" in the Department, making him eligible for elevation under the Vacancies Reform Act. What little precedent exists appears to favor Trump: Last year, a federal judge ruled in the White House's favor when Trump use of the act to appoint Mick Mulvaney to lead the CFPB triggered Democratic resistance. The Democrats must also prove that they have "standing" to challenge Whitaker's appointment - meaning that Whitaker's appointment violated their rights.
Blumenthal, who has been angling to replace Dianne Feinstein as the top Dem on the Senate Judiciary Committee after she steps down or retires, said in a statement that Whitaker's appointment was a flagrant violation.
"Installing Matthew Whitaker so flagrantly defies constitutional law that any viewer of Schoolhouse Rock would recognize it," Blumenthal said in a statement. "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. The reason is simple: Whitaker would never pass the advice and consent test. In selecting a so-called "constitutional nobody" and thwarting every Senator’s constitutional duty, Trump leaves us no choice but to seek recourse through the courts."
If that's true, Richard, then why hasn't a federal judge already ruled Whitaker ineligible to serve?