The state of Maryland is reportedly planning to challenge President Trump’s appointment of Matthew Whitaker as acting attorney general, arguing that it is not legitimate.
According to a report in The New York Times, “Maryland is expected to ask a federal judge on Tuesday for an injunction declaring that Mr. Whitaker is not the legitimate acting attorney general as a matter of law, and that the position—and all its power—instead rightfully belongs to the deputy attorney general, Rod. J. Rosenstein.”
In the draft court filing reviewed by the Times, the plaintiffs argue that the president cannot “bypass the constitutional and statutory requirements for appointing someone to that office.”
Last week, Senate Minority Leader Chuck Schumer publicly questioned why Trump bypassed the “statutory line of succession” in naming Whitaker as acting attorney general.
Trump's choice has also been criticized by Democrats over Whitaker's public opinions about Special Counsel Robert Mueller’s Russia probe, which he wrote in a CNN op-ed last year was going too far.
An Obama-appointed federal judge in Maryland, Ellen Hollander, will be ruling on who’s the legitimate acting attorney general as part of a lawsuit concerning the Affordable Care Act, or ObamaCare, which sued Sessions in his official capacity, the Times reported.
After Sessions resigned from his post, the judge must name his successor as a defendant in the litigation, essentially ruling who’s in charge of the DOJ.
The Trump administration defended Whitaker’s appointment by pointing out to the Federal Vacancies Reform Act, a 1998 statute that allows the president to temporarily fill a position that requires Senate confirmation with any official who’s been in the department for over 90 days. (Fox News)
While Whitaker, who was Sessions's chief of staff, meets that criteria, Maryland will argue the law applies to routine positions, not filling a vacancy as significant as attorney general.