Rule of Law

A critical lawsuit over the acting attorney general

Protect Democracy, a nonpartisan legal group that has dogged President Trump on constitutional issues and violations of democratic norms for two years, filed yet another suit on Monday against the Trump administration. In conjunction with the Constitutional Accountability Center and on behalf of Sens. Richard Blumenthal (D-Conn.), Sheldon Whitehouse (D-R.I.), and Mazie K. Hirono (D-Hawaii), Protect Democracy is challenging the appointment of acting attorney general Matthew G. Whitaker. In a news release the group explains:

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.” . . .

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.

Senate Minority Leader Charles E. Schumer (D-N.Y.) issued a statement Monday: “I commend Senators Blumenthal, Hirono, and Whitehouse for bringing this important lawsuit and shining a bright light on the president’s unconstitutional appointment of Matthew Whitaker as acting attorney general,” he said. “Putting aside Mr. Whitaker’s many conflicts of interest and history of hostile comments toward the special counsel’s investigation, his appointment as acting AG is in direct violation of the Constitution’s Appointments Clause and should concern every American – regardless of party affiliation – who cares about the rule of law and justice in our country.”

The litigants’ argument is simple and persuasive: President Trump has violated one of the core checks and balances contained in the U.S. Constitution by violating the advice and consent process in the Constitution, a key check on executive power. Especially in the case where the president has consistently attempted to micromanage the Justice Department (e.g., calling on prosecution of his opponents, pressuring the AG to un-recuse himself), it’s essential for the AG to be seen as someone who is not simply a rubber stamp for his political patron. Based on the reaction from both Republicans and Democrats, Whitaker very likely would not have been confirmed by the Senate.

While it is true that Whitaker, given his public statements about the special counsel investigation and his role in advising Sam Clovis, should not be in charge of that inquiry, that strictly speaking is a recusal matter. What is at issue in the lawsuit is whether the president can appoint Whitaker without the Senate’s consent. If Trump can, it’s not clear why future presidents would bother with Senate confirmation for controversial appointments.

There is a legitimate issue of “standing” — whether these senators are the ones to bring a lawsuit. However, in this case, they seem to have a powerful rationale why the judicial branch needs to weigh in. The complaint states that these three senators were “denied the right to vote guaranteed to them by the Appointments Clause.” The plaintiffs note that Congress passed a statute prescribing the order of succession in the event of a vacancy, the DOJ succession statute. The Federal Vacancies Reform Act, they argue, that allows the president to fill an opening under some circumstances does not override the DOJ succession statute and does not allow someone such as Whitaker who has never been confirmed by the Senate to step into the role of acting attorney general.

The senators seek declaratory relief that Whitaker was appointed to perform the duties of a principal officer of the United States (reporting to the president), and therefore that he is in violation of the Appointments Clause.  They ask Whitaker be enjoined from performing the duties of acting attorney general.

The question is not why these three senators acted in defense of the Senate’s prerogatives but why Republicans refuse to. Under Senate Majority Leader Mitch McConnell (R-Ky.), the Senate is no longer the world’s greatest deliberative body; indeed, it doesn’t deliberate at all. McConnell refuses to consider legislation to protect the special counsel and refuses to confront the president on his unconstitutional usurpation of Senate powers. It’s yet another powerful example of why Republicans are not fit to hold power; if they cannot uphold their oaths and defend their explicit role under the Constitution, they have no business being there.