Maryland expected to ask for injunction saying Whitaker is not legitimate acting attorney general: report

The state of Maryland is expected to ask for an injunction on Tuesday saying Matthew Whitaker is not the legitimate acting attorney general, claiming instead that Deputy Attorney General Rod RosensteinRod RosensteinFeds will not charge officer who killed Eric Garner The Hill's Morning Report — Trump retreats on census citizenship question Judiciary issues blitz of subpoenas for Kushner, Sessions, Trump associates MORE should have been promoted to the position, The New York Times reported.

The injunction will come as part of the state's lawsuit against former Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsHouse gears up for Mueller testimony Trump's no racist — he's an equal opportunity offender Press: Acosta, latest to walk the plank MORE, according to the Times, who resigned at President TrumpDonald John TrumpCould Donald Trump and Boris Johnson be this generation's Reagan-Thatcher? Merkel backs Democratic congresswomen over Trump How China's currency manipulation cheats America on trade MORE's request last week. A federal judge in Maryland will now have to name Sessions's successor in the lawsuit, and the state is planning to argue Whitaker's appointment to the role was not constitutional, according to a draft filing obtained by the newspaper


"[Trump may not] bypass the constitutional and statutory requirements for appointing someone to that office,” the plaintiffs reportedly wrote in the draft filing. 

Since Whitaker's appointment last Wednesday, Democrats have called on him to recuse himself from Robert MuellerRobert (Bob) Swan MuellerTop Republican considered Mueller subpoena to box in Democrats Kamala Harris says her Justice Dept would have 'no choice' but to prosecute Trump for obstruction Dem committees win new powers to investigate Trump MORE's Russia probe, citing his public comments criticizing the special counsel. 

Whitaker once declared there "no collusion" between Trump and Moscow and said the special counsel's investigation was a waste of time that could be undercut by denying it funding. 

Maryland will reportedly ask Ellen Hollander of the Federal District Court for the District of Maryland to rule Whitaker's appointment unlawful, pointing to the president's use of the Vacancies Reform Act to fill the vacancy left by Sessions. The state will argue that Trump's invocation of the statute was atypical, as it is intended for routine positions and not the Department of Justice's highest post, the Times reported. 

Another statute specifically says the deputy attorney general should be appointed if the attorney general leaves the position, the filing says.

"[The position of attorney general] calls for the highest levels of integrity and personal judgment, prerequisites safeguarded by the Constitution’s command that principal officers be subject to the oversight and check provided by Senate confirmation,” the filing says, according to the Times. 

Some Democrats have raised concerns that Whitaker's appointment is an attempt by Trump to undermine the Mueller investigation, which he has criticized as a "witch hunt" for more than a year. 

Democratic leaders on Sunday sent a letter requesting a formal update from the Justice Department's ethics office on whether Whitaker should recuse himself from overseeing Mueller's investigation.