Attorneys in an unrelated case have filed a petition asking the Supreme Court to block Donald Trump’s appointment of Matthew Whitaker as acting attorney general and to replace him with Deputy Attorney General Rod Rosenstein.
Barring that, the lawyers want Supreme Court justices to at least weigh in on whether Whitaker’s appointment was legal and constitutional.
The petition was filed on Friday by attorney Tom Goldstein in a separate a gun rights case that the court has yet to hear. Even if Supreme Court justices decline to hear that case, which is Barry Michaels v. Whitaker, they still could rule on the question of Whitaker’s appointment, Goldstein told CNN.
“We do want Rosenstein named Acting Attorney General,” Goldstein said, according to CNN. “But we say to the court, even if we’re wrong, it sure would be better for everybody to know the answer to that because this has turned into a mess.”
Goldstein’s filing follows another challenge this week to Whitaker’s appointment, by Maryland Attorney General Brian Frosh. Frosh, who last year opened an investigation into Trump son-in-law Jared Kushner’s predatory real estate business, also argued in court that Rosenstein should be installed in Whitaker’s place, according to USA Today. Frosh called the Whitaker appointment “illegal and unconstitutional.”
The basis of the argument by Goldstein’s team is that Trump’s naming of Whitaker to replace former Attorney General Jeff Sessions—whom Trump fired the day after midterm elections—violates the U.S. Constitution’s Appointments Clause, which dictates that officers such as the attorney general must be confirmed by the Senate.
Trump should have followed the Attorney General Succession Act in appointing Whitaker, the court documents state.
The Trump administration, however, argues that the appointment is legal under the Federal Vacancies Reform Act. On Wednesday, the Justice Department issued a 20-page opinion stating that the act allows for senior staffers to be appointed if they have been in office for at least 90 days. Whitaker formerly worked as Sessions’ chief of staff. The Justice Department also said that Whitaker doesn’t require Senate confirmation because the appointment is temporary.
In an interview with the Daily Caller this week, Trump inadvertently—or perhaps advertently—acknowledged that he had named Whitaker because of the president’s interest in the Mueller investigation. Referring to Whitaker, Trump claimed, “I knew him only as he pertained, you know, as he was with Jeff Sessions.”
He then added: “And, you know, look, as far as I’m concerned this is an investigation that should have never been brought. It should have never been had. It’s something that should have never been brought. It’s an illegal investigation. And you know, it’s very interesting because when you talk about not Senate confirmed, well, Mueller’s not Senate confirmed.”
It will be interesting to see how the Supreme Court rules on this, likely in coming weeks. Stay tuned.