On November 7, after months of signaling his displeasure with Attorney General Jeff Sessions over Mr. Sessions’ perceived lack of loyalty, President Donald J. Trump asked him to resign. Even though Deputy Attorney General Rod Rosenstein, who would be Acting Attorney General under the DOJ succession statute, is available to exercise the functions and duties of the office of Attorney General, President Trump designated Sessions’ chief of staff, Matthew Whitaker, to serve as Acting Attorney General. The U.S. Senate has not given its consent to Mr. Whitaker serving as Attorney General (or any other principal Officer position in the United States).

CAC, along with co-counsel Protect Democracy, filed a complaint for declarative and injunctive relief on behalf of Senators Richard Blumenthal, Sheldon Whitehouse, and Mazie K. Hirono. Our complaint alleges the President’s designation of Mr. Whitaker to perform the functions and duties of the office of Attorney General violates the Constitution’s Appointments Clause.  As the complaint explains, had Mr. Whitaker been formally nominated to serve as a principal Officer within the Department of Justice, members of the Senate would have had the opportunity to consider public comments he has made criticizing and proposing to curtail ongoing DOJ investigations that implicate the President, his espoused legal views, and his affiliation with a company that is under criminal investigation for defrauding consumers. It is precisely so that matters like these can be thoroughly examined by Senators that the Constitution prohibits the appointment of principal federal Officers without the Senate’s advice and consent. That safeguard, the Framers recognized, helps prevent the President 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,” The Federalist No. 76 at 458 (Alexander Hamilton) (Clinton Rossiter ed., 1961).