Three Senate Dems File Lawsuit Arguing Whitaker Appointment Is Illegitimate

Acting Attorney General Matthew Whitaker, right, greets state and local law enforcement officials at the U.S. Attorney's Office for the Southern District of Iowa on Nov. 14, 2018, in Des Moines. (AP Photo/Charlie Neibergall)

WASHINGTON — Three Senate Democrats filed a lawsuit today in the U.S. District Court in the District of Columbia arguing that President Trump did not have the right to appoint Matthew Whitaker acting attorney general without the Senate’s consent.


Whitaker, U.S. Attorney for the Southern District of Iowa during the George W. Bush administration, vied for the GOP Senate nomination in Iowa in 2014 but lost to Sen. Joni Ernst (R-Iowa). In August 2017, he wrote a CNN op-ed arguing that “Mueller has come up to a red line in the Russia 2016 election-meddling investigation that he is dangerously close to crossing” by reportedly looking into Trump’s finances. In 2014, he led the unsuccessful campaign of Sam Clovis, Trump’s 2016 campaign co-chairman, for Iowa state treasurer; Clovis is now a grand jury witness in the Mueller probe.

Trump told reporters Saturday that he hasn’t made a decision on his pick to replace Jeff Sessions. “But I will tell you, until that decision is made, we have a great gentleman in Matt Whitaker,” he added. “And everybody tells me he’s doing a fantastic job.”

Sens. Richard Blumenthal (D-Conn.), Sheldon Whitehouse (D-R.I.), and Mazie Hirono (D-Hawaii) asked the court for an injunction declaring Whitaker illegitimate in the acting attorney general role.

“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.


“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,” it continues. “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. Mr. Whitaker would not be able to serve as a principal Officer—and exercise the functions and duties of such an office—until he made the disclosures required of a nominee, answered Senators’ questions, and convinced a majority of the Senate’s members to give their consent to his confirmation.”

The lawsuit acknowledges that Whitaker “received Senate confirmation to serve as United States Attorney for the Southern District of Iowa fifteen years ago” but “resigned that position in 2009.”

The senators argued that “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.”


They asked the court to “vindicate their ability to fulfill their constitutional role.”

Senate Minority Leader Chuck Schumer (D-N.Y.) said in a statement that he supports the lawsuit. “Putting aside Mr. Whitaker’s many conflicts of interest and history of hostile comments toward the special counsel’s investigation, his appointment as acting AG is in direct violation of the Constitution’s Appointments Clause and should concern every American — regardless of party affiliation  who cares about the rule of law and justice in our country,” he said.

In reference to likely incoming House Intelligence Committee Chairman Adam Schiff (D-Calif.), Trump tweeted Sunday, “So funny to see little Adam Schitt (D-CA) talking about the fact that Acting Attorney General Matt Whitaker was not approved by the Senate, but not mentioning the fact that Bob Mueller (who is highly conflicted) was not approved by the Senate!”


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