Three leading Democratic US senators filed a lawsuit on Monday accusing Donald Trump of illegally appointing Matthew Whitaker as acting attorney general, saying the president violated the US constitution and denied the Senate its right to approve the nomination.
The lawsuit was filed in US district court for the District of Columbia by senators Richard Blumenthal, Sheldon Whitehouse and Mazie Hirono. It is the most high-profile litigation so far to be brought challenging Whitaker’s appointment.
Trump named Whitaker acting attorney general on the day he asked Jeff Sessions for his resignation as attorney general, less than 24 hours after polls closed in the midterm elections. Whitaker was Sessions’s chief of staff.
The appointment immediately caused confusion and consternation on Capitol Hill about who was now overseeing the Mueller investigation – Whitaker or the deputy attorney general, Rod Rosenstein – and whether Whitaker would be a threat to the inquiry. There were bipartisan calls for Mueller to be allowed to finish unimpeded the investigation into Russian interference in the 2016 presidential election and any collusion between the Trump campaign and Moscow. Such calls were repeated at the weekend.
Trump tweeted on Sunday, complete with a vulgar new nickname for the Democratic representative Adam Schiff, defending his power to appoint Whitaker to his new position.
Whitaker has a deeply partisan career track record, has criticized the Mueller investigation and has even said judges should be Christian and take “a biblical view of justice”. He also has a history of being linked to alleged business scams.
The constitution’s appointments clause requires that the Senate confirm all principal officials before they can serve in their office.
The justice department released a legal opinion last week that said Whitaker’s appointment would not violate the clause because he is serving in an acting capacity. The opinion concluded that Whitaker, even without Senate confirmation, may serve in an acting capacity because he has been at the department for more than a year at a “sufficiently senior pay level”.
Blumenthal said in a statement on Monday: “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.”
He added: “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.”
The lawsuit comes days after a Washington lawyer challenged Whitaker’s appointment in a pending supreme court case dealing with gun rights. The attorney, Thomas Goldstein, asked the court to find that Whitaker’s appointment is unconstitutional and replace him with Rosenstein.
The justice department issued a statement on Monday defending Whitaker’s appointment as lawful.
“There are over 160 instances in American history in which non-Senate confirmed persons performed, on a temporary basis, the duties of a Senate-confirmed position,” a justice department spokeswoman, Kerri Kupec, said. “To suggest otherwise is to ignore centuries of practice and precedent.”