Maryland Says Matthew Whitaker’s Appointment As Acting Attorney General Is Illegal

WASHINGTON, DC - AUGUST 29: Department of Justice Chief of Staff Matt Whitaker (R) participates in a round table event with the Joint Interagency Task Force (Photo by Chip Somodevilla/Getty Images)
Chip Somodevilla / Getty Images

The state of Maryland says that Matthew Whitaker’s appointment as Acting Attorney General is “illegal and unconstitutional,” according to USA Today.

Through court documents, Maryland’s Attorney General Brian Frosh called for Deputy Attorney General Rod Rosenstein to be appointed over Matthew Whitaker. Appointing the Deputy to a recently-vacated position such as Attorney General is more standard than appointing the chief of staff, which is what Whitaker was before he was made the Acting AG.

“Few positions are more critical than that of the U.S. Attorney General, an office that wields enormous enforcement power and authority over the lives of all Americans,” Frosh said Tuesday.

Whitaker has not been confirmed by the Senate, but he does have a legal background. Whitaker is a former Iowa federal prosecutor.

A company that Whitaker was previously involved with is currently under FBI investigation for fraud.

“The attorney general’s succession statute and the Constitution protect the country against exactly what President Trump has attempted to do here — pluck an unqualified and unconfirmed partisan to be the nation’s chief law enforcement officer in order to protect himself rather than the rule of law,” said Frosh.

The state of Maryland previously filed suit against Jeff Sessions when he was Attorney General. Sessions stopped defending parts of the Affordable Care Act, which prompted the suit.

Maryland is now saying that Whitaker is unlawfully appointed and therefore cannot respond to this previous suit, according to NPR.

Maryland has asked for an injunction preventing the federal government from responding to the suit.

The new lawsuit brought by Maryland says that Whitaker’s appointment is a violation of the Constitution, which says that principal officers of the U.S. must be appointed “with the advice and consent of the Senate.”

“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,” Frosh said in a statement.

Fox News called Maryland’s Tuesday suit “an unprecedented move.”

Andrew McCarthy, a Fox New contributor and former federal prosecutor, says that Whitaker’s appointment is protected by the Vacancies Act. This Act allows the President to temporarily fill any position requiring Senate confirmation with any official who has been employed with the department for more than 90 days.

Whitaker meets this qualification, as he has been with the Department of Justice since 2017.

Since Jeff Sessions was fired and Matthew Whitaker was appointed in his place last week, multiple stories about Whitaker have come out and many fear that he will impede the ongoing Russia investigation being headed by Robert Mueller.