A last ditch effort to replace acting Attorney General Michael Whitaker has failed after the Supreme Court denied a request to replace the head of the Justice Department.
Progressive fears
The decision was just the latest defeat for Democrats hoping to replace Whitaker, whose temporary appointment did not require Senate approval. There have been enduring fears in progressive circles that Whitaker could undermine the special counsel’s investigation of the Trump administration after he criticized the scope of the inquiry before joining the Justice Department.
The latest attempt to unseat Whitaker comes from a Nevada man convicted of nonviolent felonies who is seeking to have his second amendment rights restored. Lawyers representing the plaintiff, Barry Michaels, argued that Whitaker’s appointment violated the Constitution and federal statutes, and they asked the high court to replace him with Deputy Attorney General Rod Rosenstein.
“This is an extraordinary case in which the identity of the successor is both contested and has important implications for the administration of justice nationally,” the plaintiff wrote in court filings. “This motion seeks to resolve the dispute.”
Lawfare
Michaels’ attorneys were trying for a long shot, and they probably never stood a chance of replacing Whitaker. His appointment has already been the subject of multiple legal challenges and an internal DOJ review, and each upheld the president’s authority to temporarily appoint Whitaker.
In November, Maryland Attorney General Brian Frosh challenged the appointment, arguing that it violated the Constitution’s Appointments Clause and a statute dictating the succession of the attorney general. Frosh has accused Whitaker of harboring “extreme views,” and the Trump administration responded by arguing that Maryland lacks standing to sue and that the case “is a transparent attempt to vindicate Maryland’s policy interests.”
Maryland’s AG has sued the Trump administration more than 20 times, taking up meritless lawsuits designed to harass and obstruct as much as they are designed to seek a favorable outcome. Besides Frosh, a trio of Senate Democrats have also sued Trump over the temporary appointment based on the same constitutional grounds.
“Installing Matthew Whitaker so flagrantly defies constitutional law that any viewer of School House Rock would recognize it. Americans prize a system of checks and balances, which President Trump’s dictatorial appointment betrays,” said Sen. Richard Blumenthal (D-CT), one of the plaintiffs in the case and a member of the Senate Judiciary Committee.
Political amnesia
However, the Supreme Court is unlikely to agree with Blumenthal’s bombastic claims. The DOJ’s Office of Legal Counsel already issued an advisory opinion upholding the legality of the Whitaker appointment. Democrats who cite the Appointments Clause are either forgetting or ignoring that this statute doesn’t apply to individuals temporarily filling principal offices.
The 1998 Vacancies Reform Act gives Trump the right to designate office holders on a temporary basis, and DOJ attorneys identified 160 instances between 1809 and 1860 in which officials filled high offices on a temporary basis without congressional consent.
Trump has already tapped a replacement for Whitaker. William P. Barr’s Senate confirmation hearing will begin in mid-January, making the multiple ongoing lawsuits moot.
Democrats are going to pull out all the stops to oppose Barr’s nomination, as well. The president’s nominee drafted a memo this spring criticizing the special counsel investigation, arguing that the obstruction of justice phase of the inquiry is unjustified.
Despite the political firestorm initiated by Whitaker’s temporary appointment, the battle to nominate the next U.S. attorney general is just getting started.
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