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Tipsheet

Acting AG Whitaker Now Facing a Supreme Court Challenge

President Trump didn't make too many people happy with his decision to name Matthew Whitaker the acting attorney general and de facto overseer of Robert Mueller's Russia probe. Whitaker is a lawyer who had served as former Attorney General Jeff Sessions's chief of staff. Critics point out that Whitaker has little experience and has made some biased comments about the Russia investigation, once echoing the president's remarks that there is no collusion. 

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Some critics aren't just complaining. Some are taking it to court. Lawyer Thomas Goldstein has filed a Supreme Court challenge demanding Whitaker be removed from the position because Trump appointed him unconstitutionally. Many Democrats have voiced that concern, insisting the acting AG needs to be Senate approved. Goldstein filed the motion in an unrelated case about gun rights that was originally filed against former Attorney General Jeff Sessions. His name is being replaced by Whitaker in lawsuits all over the country.

"This is the extraordinary case in which the identity of the successor is both contested and has important implications for the administration of justice nationally," Goldstein said.

"There is a significant national interest in avoiding the prospect that every district and immigration judge in the nation could, in relatively short order, be presented with the controversy over which person to substitute as acting attorney general."

Goldstein's challenge also calls for Deputy Attorney General Rod Rosenstein to become acting AG instead. Trump's relationship with the latter, however, is a bit strained. A few months ago the New York Times reported that Rosenstein once joked to White House colleagues that they should secretly record what Trump says and perhaps even try to remove him from office. Rumor had it Trump was about to be fire Rosenstein. But one long plane ride in October may have put those fears to rest.

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A few days after lawmakers raised the constitutional concerns over Whitaker's appointment, the Department of Justice released a report justifying Trump's decision. 

"As we have previously recognized, the President may use the Vacancies Reform Act to depart from the succession order," the agency wrote.

If Whitaker does keep the position, Democrats at least want him to take a page out of Sessions's book and recuse himself from the Russia investigation.

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