Three Democratic senators have filed a lawsuit challenging the appointment of Matthew Whitaker as acting attorney general.
The complaint was filed Monday by Richard Blumenthal of Connecticut, Mazie Hirono of Hawaii and Sheldon Whitehouse of Rhode Island.
It argues that the appointment of Whitaker violates the Constitution because he has not been confirmed by the Senate. From the senators' statement:
The Constitution’s Appointments Clause requires that the Senate confirm high-level federal government officials, including the Attorney General, before they exercise the duties of the office. The Framers included this requirement to ensure that senior istration officials receive scrutiny by the American people’s representatives in Congress. The Appointments Clause is also meant to prevent the President, in the words of Alexander Hamilton in Federalist 76, from appointing officers with “no other merit than that of…possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.”
The complaint asks a judge to declare the appointment unconstitutional and to prevent him from serving as head of the Justice Department.
“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,” Blumenthal said in a statement. “The reason is simple: Whitaker would never 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.”
Whitaker was chief of staff to Attorney General Jeff Sessions, and was elevated to the top job after Sessions was ousted by President Donald Trump on November 7.
The Justice Department said in a memo last week that Whitaker's temporary appointment was legal, because he was a senior-enough leader for more than a year.
The memo did not address whether Whitaker must recuse himself from the Russia investigation. Sessions had recused himself from the investigation, which is being conducted by special counsel Robert Mueller.
Trump has said he intends to nominate a permanent replacement who would be confirmed by the normal process in the Senate.
This report includes information from The Associated Press and NPR.
