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Top Dems: DOJ position on Whitaker appointment 'fatally flawed'

Top Dems: DOJ position on Whitaker appointment 'fatally flawed'
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Top Democrats are slamming the Justice Department's justification for President TrumpDonald John TrumpUSAID administrator tests positive for COVID-19 Kamala Harris, Stacey Abrams among nominees for Time magazine's 2020 Person of the Year DOJ appeals ruling preventing it from replacing Trump in E. Jean Carroll defamation lawsuit MORE's appointment of new acting Attorney General Matthew Whitaker as "fatally flawed."

Reps. Jerrold Nadler (D-N.Y.) and Adam SchiffAdam Bennett SchiffOVERNIGHT DEFENSE: Trump pardons Flynn | Lawmakers lash out at decision | Pentagon nixes Thanksgiving dining hall meals due to COVID-19 Democratic impeachment leaders blast Trump's pardon of Flynn Trump pardons Michael Flynn MORE (D-Calif.) -- the top Democrats on the House Judiciary and Intelligence panels, respectively -- as well as Senate Judiciary Committee Ranking Member Dianne FeinsteinDianne Emiel FeinsteinThe Hill's Morning Report - Presented by the UAE Embassy in Washington, DC - COVID-19 fears surround Thanksgiving holiday Feinstein departure from top post sets stage for Judiciary fight Whitehouse says Democratic caucus will decide future of Judiciary Committee MORE (D-Calif.), argued in a statement that the DOJ's Office of Legal Counsel (OLC) rested too heavily on the 1998 Vacancies Reform Act to make their case.

Democrats and critics alike argue that it is against the Constitution for Whitaker to serve since he is not a Senate-confirmed official.

"The Office of Legal Counsel opinion released yesterday attempts to justify the appointment of Matthew Whitaker as acting attorney general. By relying exclusively on the Vacancies Reform Act and twisting the plain language of the Constitution, the opinion’s argument is fatally flawed," they wrote in Thursday a statement. 

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“The reason for our government’s consistent practice with respect to the nation’s chief law enforcement officer since then is simple: For more than a century, the executive branch has understood, and Congress has agreed, that the attorney general, including one serving in an acting capacity, is a principal officer who must be nominated by the president and confirmed by the Senate," they continued.

The lawmakers alleged that Trump had purposefully bypassed Deputy Attorney General Rod RosensteinRod RosensteinTrump turns his ire toward Cabinet members Ex-deputy attorney general says Justice Dept. 'will ignore' Trump's threats against political rivals The Hill's Morning Report - Sponsored by Facebook - Trump's erratic tweets upend stimulus talks; COVID-19 spreads in White House MORE, the official next in line to take the helm of the Justice Department (DOJ) after the president fired Jeff SessionsJefferson (Jeff) Beauregard SessionsAlabama zeroes in on Richard Shelby's future Tuberville incorrectly says Gore was president-elect in 2000 Next attorney general must embrace marijuana law reforms MORE. They say he instead chose Whitaker because the president wanted a "political operative to serve his own interests." Whitaker now oversees special counsel Robert MuellerRobert (Bob) MuellerCNN's Toobin warns McCabe is in 'perilous condition' with emboldened Trump CNN anchor rips Trump over Stone while evoking Clinton-Lynch tarmac meeting The Hill's 12:30 Report: New Hampshire fallout MORE's investigation instead of Rosenstein.

"President Trump purposefully skipped [Rosenstein] and every other individual who meets these conditions," the statement reads.

Democrats have also called on Whitaker to recuse himself from overseeing the probe, pointing to a series of comments he made prior to joining the DOJ that criticize the investigation he is now overseeing.

This statement comes after Maryland's attorney general asked a federal judge on Tuesday to block Whitaker's appointment, arguing that Rosenstein should instead return to his role of overseeing the high-profile investigation examining Russian interference in the 2016 presidential election.

In response, the OLC issued a 20-page memo arguing that his appointment is within the bounds of the law, citing past legal precedent as well as the Vacancies Reform Act.

Democrats, however, said knocked the OLC for identifying one case in which an individual served as acting AG without Senate approval -- and that was during Andrew Johnson's administration in 1866, shortly after the Civil War ended.

This special case, they noted, was "four years before the Justice Department’s founding and a century before the DOJ succession law was enacted."

"The attorney general must be Senate confirmed, plain and simple. This can’t be allowed to stand," the Democrats concluded.