Dem Senators Sue Trump, Challenge Constitutionality Of Acting AG Matthew Whitaker’s Appointment

Whitaker's appointment violated the Constitution as well as federal law, the three senators allege.

Acting Attorney General Matthew Whitaker.
Steve Pope / Getty Images

Whitaker's appointment violated the Constitution as well as federal law, the three senators allege.

Three Democratic U.S. Senators have filed an official complaint against the president and his acting attorney general, alleging that the individual President Donald Trump appointed to fill that role was placed there improperly and illegally.

Sens. Richard Blumenthal (D-Connecticut), Sheldon Whitehouse (D-Rhode Island), and Mazie Hirono (D-Hawaii) filed a lawsuit against acting Attorney General Matthew Whitaker and Trump on Monday morning. The suit alleges that Trump violated the appointments clause of the U.S. Constitution, as well as a federal law that dictates who should assume the role of acting attorney general should the office become vacant.

Trump appointed Whitaker earlier this month following the ouster of the former head of the Department of Justice, Attorney General Jeff Sessions, according to reporting from Reuters. Many questioned the appointment’s legality at that time because Whitaker was not a Senate-confirmed member of the DOJ in his previous role, which was serving as Sessions’ chief of staff.

The Senators point out that difficulty in their lawsuit. “The U.S. Senate has not consented to Mr. Whitaker serving in any office within the federal government, let alone the highest office of the DOJ,” they wrote in their lawsuit.

They cited many problems with not being able to approve of Whitaker’s appointment, including wishing to question him on his legal viewpoints, ask him about his role and connections to a company currently under investigation for defrauding customers, and forcing him to clarify his comments regarding current “investigations that implicate the President,” likely referring to the special counsel investigation being led by Robert Mueller.

The Senators warned that Trump appointing an unconfirmed individual to head a department in his administration could lead to a constitutional crisis and bad precedent-making.

“Because the Senate has not consented to Mr. Whitaker serving as an Officer of the United States, his designation by the President to perform the functions and duties of the Attorney General violates the Appointments Clause. Indeed, if allowed to stand, Mr. Whitaker’s appointment would create a road map for the evasion of the constitutionally prescribed Senate advice-and-consent role.”

The Senators added that a separate law established 20 years ago created the protocol for who should lead the DOJ specifically when a vacancy arises in the attorney general’s office. When that happens, the law on the books stipulates that the deputy attorney general steps in to become the acting attorney general until a proper replacement can be nominated, by the president, and then confirmed by the U.S. Senate.