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 TrumpPence: It's not a "foregone conclusion" that lawmakers impeach Trump FBI identifies Pensacola shooter as Saudi Royal Saudi Air Force second lieutenant Trump calls Warren 'Pocahontas,' knocks wealth tax MORE's appointment of new acting Attorney General Matthew Whitaker as "fatally flawed."

Reps. Jerrold Nadler (D-N.Y.) and Adam SchiffAdam Bennett SchiffPence's office questions Schiff's request to declassify more material from official's testimony: report Sunday talk shows: Lawmakers gear up ahead of Monday's House Judiciary hearing Trump denies report that he still uses personal cell phone for calls 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 FeinsteinGiffords, Demand Justice to pressure GOP senators to reject Trump judicial pick Senate confirms Trump pick labeled 'not qualified' by American Bar Association Feinstein endorses Christy Smith for Katie Hill's former House seat 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 RosensteinRosenstein, Sessions discussed firing Comey in late 2016 or early 2017: FBI notes Justice Dept releases another round of summaries from Mueller probe Judge rules former WH counsel McGahn must testify under subpoena MORE, the official next in line to take the helm of the Justice Department (DOJ) after the president fired Jeff SessionsJefferson (Jeff) Beauregard SessionsThe shifting impeachment positions of Jonathan Turley Rosenstein, Sessions discussed firing Comey in late 2016 or early 2017: FBI notes Justice Dept releases another round of summaries from Mueller probe 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) Swan MuellerTrump says he'll release financial records before election, knocks Dems' efforts House impeachment hearings: The witch hunt continues Speier says impeachment inquiry shows 'very strong case of bribery' by Trump 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.