Senators Challenge Appointment of Acting Attorney General

Matthew Whitaker. PC: Wikipedia.

On Monday, Nov. 19, 2018, Sens. Mazie K. Hirono, Richard Blumenthal (D-Conn.), and Sheldon Whitehouse (D-RI.) filed a complaint in the U.S. District Court for the District of Columbia challenging the constitutionality of President Donald Trump’s appointment of Matthew Whitaker as the Acting Attorney General. On Nov. 7, President Trump appointed Whitaker to oversee the Department of Justice—including the Special Counsel’s investigation—in violation of the Constitution’s Appointments Clause. The Senators’ complaint asks the Court to declare Whitaker’s appointment unconstitutional and to enjoin him from serving as, or carrying out the duties of, Acting Attorney General.

“Donald Trump cannot subvert the Constitution to protect himself and evade accountability,” Sen. Hirono said. “We want the court to make clear that the Senate must confirm Matthew Whitaker’s appointment as Acting Attorney General—otherwise this temporary appointment violates the Constitution’s Appointments Clause. Without exception for President Trump’s allies, principal officers who report directly to the President must be subject to a hearing and confirmed by the Senate.”

“Installing Matthew Whitaker so flagrantly defies constitutional law that any viewer of School House Rock would recognize it,” Sen. Blumenthal said. “Americans prize a system of checks and balances, which President Trump’s dictatorial appointment betrays. 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. 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 stakes are too high to allow the president to install an unconfirmed lackey to lead the Department of Justice—a lackey whose stated purpose, apparently, is undermining a major investigation into the president,” Senator Whitehouse said. “Unless the courts intercede, this troubling move creates a plain road map for persistent and deliberate evasion by the executive branch of the Senate’s constitutionally mandated advice and consent. Indeed, this appointment appears planned to accomplish that goal.”

Two non-partisan, nonprofit law firms represent the Senators in this case: Protect Democracy and the Constitutional Accountability Center.

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 administration 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.”

Because President Trump has denied the Senate the opportunity to consider whether Matthew Whitaker is fit to serve as a principal Officer of the United States, the full scope of concerns about Acting Attorney General Whitaker is unknown. However, issues that have come to light through public reporting underscore the importance of the Senate’s constitutional responsibility to offer advice and consent before high-level executive administrators assume office.

President Trump’s violation of the Constitution’s Appointments Clause, unilaterally preventing members of the Senate from voting on whether or not to consent to Matthew Whitaker serving as a principal Officer, leaves Senators no choice but to seek a remedy through the courts.

Anne Tindall, counsel at Protect Democracy, a non-partisan nonprofit whose attorneys are representing the Senators in this case, said, “Under the legal theory currently being advanced by the White House, the President could elevate a family member who worked for an agency to lead it without Senate confirmation. The prospect that the Attorney General might seek to serve the President, rather than the American people, reaffirms the importance of a confirmation process that follows the Constitution.”

“President Trump has shown utter disregard for the bedrock constitutional plan for top executive branch officials to receive the advice and consent of the Senate before taking office,” added Elizabeth Wydra, president of Constitutional Accountability Center, a public interest think tank and law firm dedicated to promoting the progressive promise of the Constitution’s text, history, and values. “The prospect that a president’s high-level executive branch appointments would be influenced by personal, rather than public, interests is one key reason why the nation’s Founders required such appointees to receive the advice and consent of the Senate in the first place.”