WASHINGTON — U.S. Senator Richard Blumenthal on Monday filed a legal challenge to President Donald Trump’s appointment of Matthew Whitaker as acting Attorney General, claiming it violates the U.S. Constitution’s Appointments Clause.
“Americans really prize a system of checks and balances. They know that checks on autocratic and dictatorial power are essential to our democratic system. President Trump’s appointment here betrays those checks and balances,” Blumenthal said.
Blumenthal is asking the U.S. District Court for the District of Columbia to nullify the appointment on the grounds that it deprives members of the Senate their right to confirm presidential appointees working at the highest level of the federal government as guaranteed by the U.S. Constitution. He is joined by Sen. Sheldon Whitehouse, D-R.I., and Sen. Masie Hirono, D-Hawaii, on the court filing.
President Trump appointed Whitaker as acting attorney general after Jeff Sessions agreed to leave the job at the request of the president. Blumenthal says the president should have appointed Deputy Attorney General Rod Rosenstein as acting attorney general, noting that — unlike Whitaker — Rosenstein is next in line and has faced Senate confirmation in his current role. Whitaker was Session’s chief of staff.
Blumenthal went farther in discrediting Whitaker saying he “would never pass the advice and consent test” because he is “completely lacking in qualifications.”
“He is, in fact, a lackey and sycophant. That is exactly why we have the advice and consent clause,” Blumenthal said on a conference call with reporters.
President Trump’s Legal Counsel, Emmet Flood, issued a memorandum last week defending the appointment saying Whitaker has served at the Justice Department at a significant pay level for over a year — fulfilling the requirements to serve as acting attorney general under the Federal Vacancies Reform Act.
Flood noted that former Presidents Barack Obama and George W. Bush had similarly appointed non-Senate confirmed individuals as acting agency heads. Under the law, those appointed in acting positions can serve in those roles for up to 210 days.
Blumenthal’s concern over the appointment of Whitaker appears to be driven by concerns that Trump is looking to undermine Special Counsel Robert Mueller’s ongoing investigation into Russian interference in the 2016 presidential elections. Whitaker has in the past criticized the investigation.
“What we are witnessing right now is a slow-motion Saturday Night massacre,” Blumenthal said, alluding to President Richard Nixon’s attempt to torpedo a special counsel investigation of the Watergate affair. Rather than an overnight firing of Mueller, Blumenthal suggested the Trump administration is imposing a “death by a thousand cuts” strategy to undermine the special counsel.
“The consequences are largely the same — to violate the Constitution, to undermine the rule of law and sabotage a valid special counsel investigation,” Blumenthal said.