Three Democratic US Senators Sue to Block Whitaker Appointment

"The constitutional requirement that principal federal Officers be appointed only with the Senate's 'Advice and Consent, ' U.S. Const. art. II, § 2, cl. 2, was adopted by our nation's Founders as an important check on the power of the President", states the lawsuit.

Amid the mounting legal challenges, the Justice Department's Office of Legal Counsel released a 20-page memo last week defending the legality of the move, which it said was in line with similar appointments made by presidents George W. Bush and Barack Obama.

The suit argues that Whitaker's appointment, which came after Trump fired Attorney General Jeff Sessions following a tumultuous relationship with the president, is unconstitutional since the Senate did not vote to confirm him. "The Special Counsel continues to exercise the same authority, and the jurisdiction of the district court and this Court is intact", he added on the Whitaker situation.

Acting US Attorney General Matthew Whitaker attends the annual Veterans Appreciation br / Day ceremony at the Department of Justice in Washington, DC, on November 15, 2018.

Whitaker was formerly Sessions' chief of staff. Miller has refused to comply with a subpoena demanding his testimony before a federal grand jury, and a lower-level court judge found him in contempt of court. "Indeed, before deciding whether to give their consent to Mr. Whitaker serving in such a role, Plaintiffs and other members of the Senate would have the opportunity to consider his 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".

It appears Mueller is filing this in an attempt to head off any attempt by Miller or his lawyer to use the Whitaker appointment against Mueller in appellate court.

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But the new letter from Shine and Sanders is an "attempt to provide retroactive due process", the lawyers said. Trump seemed to shrug off the loss, telling Fox's Chris Wallace in an interview that "it's not a big deal".

The state of Maryland is suing to have Whitaker removed and be replaced with Rod Rosenstein, who as deputy attorney general is Senate approved and was the second in command to Sessions.

Richard Blumenthal (D-Conn.), one of the three Democrats who filed the suit, said in a statement, according to The Daily Beast. Trump referred to Schiff as "little Adam Schitt" in a profane, misleading tweet comparing Whitaker's appointment to that of Robert Mueller leading the Special Counsel investigation into Russian interference in the Trump campaign.

"It's going to be up to him", Trump said. Whitaker is not a Senate-confirmed official.

Trump dismissed concerns about how Whitaker will deal with the Mueller investigation, but said that he, as president, would not intervene.

In response to the special counsel's brief, Kamenar told ABC News in a statement on Monday, "The Special Counsel's brief simply argued that the appointment of Whitaker has no bearing on the way the Court should resolve our challenge to Mueller's authority".

In an interview, Blumenthal said that most of the historical examples the administration had cited involved short-term appointments demanding immediate attention whose constitutional legitimacy was never tested in court.

  • Sonia Alvarado