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Senate Dems discussing lawsuit challenging Whitaker appointment

Senate Dems discussing lawsuit challenging Whitaker appointment
© Stefani Reynolds

Senate Democrats are privately mulling legal action to challenge President TrumpDonald TrumpRomney blasts end of filibuster, expansion of SCOTUS McConnell, GOP slam Biden's executive order on SCOTUS US raises concerns about Iran's seriousness in nuclear talks MORE's decision to appoint Matthew Whitaker as acting attorney general.

A Democratic aide told The Hill that discussions about a potential lawsuit, which would argue Whitaker’s appointment violated the Senate's "advice and consent" role, were in the "beginning stages" and were still being researched.

"We are actively thinking about what a possible legal challenge would look like in this case," the aide added.

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The potential lawsuit, which was first reported by the Daily Beast, comes after Trump ousted Jeff SessionsJefferson (Jeff) Beauregard SessionsThe Hill's Morning Report - Biden assails 'epidemic' of gun violence amid SC, Texas shootings Biden administration should resist 'slush-fund' settlements Garland should oppose Biden effort to reinstate controversial 'slush funds' practice MORE as attorney general and appointed Whitaker, who was Sessions's chief of staff, to the role in an acting capacity.

Sen. Richard Blumenthal (D-Conn.) told the Daily Beast that it wasn't yet clear if senators could successfully bring a legal challenge but that they were studying "the array of legal flaws in the appointment and considering which of them are challengeable in court."

“We have been doing a deep dive on potential causes of action concerning the constitutional issues raised by the Whitaker appointment and also obvious obstacles that could be raised to any court initiative, not the least of them standing," Blumenthal told the publication.

Democrats, and some Republicans, raised concerns about the potential impact Whitaker could have on special counsel Robert MuellerRobert (Bob) MuellerWhy a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel CNN's Toobin warns McCabe is in 'perilous condition' with emboldened Trump MORE's investigation into Russian interference in the 2016 presidential election.

Deputy Attorney General Rod RosensteinRod RosensteinRosenstein: Zero tolerance immigration policy 'never should have been proposed or implemented' Comey argues Trump shouldn't be prosecuted after leaving Oval Office Trump turns his ire toward Cabinet members MORE had been providing oversight of the probe but the Justice Department said this week that Whitaker would take over those responsibilities.

Senate Minority Leader Charles SchumerChuck SchumerThe first Southern state legalizes marijuana — what it means nationally H.R. 1/S. 1: Democrats defend their majorities, not honest elections McCarthy asks FBI, CIA for briefing after two men on terror watchlist stopped at border MORE (D-N.Y.) sent a letter to Trump Friday wanting details on his legal reasoning for appointing Whitaker, arguing the move could violate the Appointments Clause of the Constitution by putting someone who had not been previously confirmed by the Senate into the Justice Department spot.

"Mr. Whitaker is a political appointee who is not serving in a Senate confirmed position in the Justice Department. I am not aware of any precedent for appointment of an official who has not been confirmed by the Senate to serve as acting Attorney General," Schumer wrote in the letter.