Dems vs. Trump: Breaking down the lawsuits against Whitaker

Democrats have filed a series of lawsuits seeking to overturn President TrumpDonald John TrumpCorsi sues Mueller for alleged leaks and illegal surveillance Comey: Trump 'certainly close' to being unindicted co-conspirator Trump pushes back on reports that Ayers was first pick for chief of staff MORE's appointment of Matthew Whitaker as ActingMatthew G WhitakerComey’s confession: dossier not verified before, or after, FISA warrant Flake stands firm on sending a ‘message to the White House’ on Mueller Corsi finalizing criminal complaint against Mueller MORE attorney general.

The Democratic arguments center on the idea that Whitaker cannot work in his post because he has not been confirmed by the Senate to serve in a senior position at the Justice Department. The Trump administration argues that the president has the power to appoint Whitaker under the Federal Vacancies Reform Act of 1998.


Here's a look at the various lawsuits taking aim at Whitaker and the administration.

Senate Democrats

Three Senate Democrats filed a lawsuit on Monday arguing that Whitaker’s Nov. 7 appointment violates the Constitution because he is not confirmed by the Senate. Of all the pending suits, it’s the most recent legal effort seeking to block the president’s pick from leading the Department of Justice (DOJ).

Sens. Richard Blumenthal (Conn.), Mazie HironoMazie Keiko HironoRubio: ‘I don’t know’ if Nauert has 'detailed knowledge' to succeed as UN ambassador Overnight Defense: Nauert tapped for UN envoy | Trump teases changes to Joint Chiefs of Staff | Trump knocks Tillerson as 'dumb as a rock' | Scathing report details Air Force failures before Texas shooting Dem senator slams Nauert's lack of 'qualifications' for UN ambassador MORE (Hawaii) and Sheldon WhitehouseSheldon WhitehouseSenators want assurances from attorney general pick on fate of Mueller probe Dems vs. Trump: Breaking down the lawsuits against Whitaker Five major takeaways from the federal climate change report MORE (R.I.) argued in court filings that Whitaker’s appointment violates the appointments clause of the Constitution, which they say makes him ineligible to serve as acting attorney general, even on a temporary basis.

The Democratic senators, who are all members of the Senate Judiciary Committee, asked a U.S. district court judge in a 17-page complaint to issue an injunction that would prevent Whitaker from exercising the authority provided to the nation’s top cop.

“Because the Senate has not consented to Mr. Whitaker serving as an officer of the United States, his designation by the president to perform the functions and duties of the attorney general the Appointments Clause,” the complaint reads. “If allowed to stand, Mr. Whitaker’s appointment would create a road map for the evasion of the constitutionally prescribed Senate advice-and-consent role.”


The lawmakers also argued that a confirmation process would allow the Senate to scrutinize critical remarks Whitaker has made about special counsel Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE’s investigation, as well as his past business dealings, which have come under intense criticism since his rise to the top of DOJ.

“Indeed, before deciding whether to give their consent to Mr. Whitaker serving in such a role, Plaintiffs and other members of the Senate would have the opportunity to consider his espoused legal views, his affiliation with a company that is under criminal investigation for defrauding consumers, and his public comments criticizing and proposing to curtail ongoing DOJ investigations that implicate the President,” the complaint says.

The president named Whitaker to the acting role on the same day that former Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsBarr turned down defense attorney job with Trump: report Paul calls Trump's pick for attorney general's views on surveillance 'very troubling' John Kelly to leave White House at year's end MORE submitted his resignation at Trump’s request. Whitaker previously served as Sessions’s chief of staff at DOJ, a role that does not require Senate confirmation.

The Maryland case

The state of Maryland was the first to challenge Whitaker’s appointment, arguing in a Nov. 13 motion that his installment was both unlawful and unconstitutional.

Maryland’s Attorney General Brian Frosh (D) asked a federal district court to block Whitaker from further serving as part of an existing lawsuit focused on protecting provisions of the Affordable Care Act, which covers people with pre-existing health conditions.

Frosh, the state’s top prosecutor, said Whitaker’s appointment violates the Attorney General Succession Act, which stipulates that the No. 2 DOJ official -- in this case Deputy Attorney General Rod RosensteinRod Jay RosensteinGraham vows to push Trump’s AG pick through Judiciary Committee House GOP set to grill Comey McCabe, Rosenstein opened obstruction probe after Trump fired Comey, before Mueller was hired: report MORE -- should assume the top position if the post becomes vacant.

“The Constitution and Congress have established vitally important processes for filling high-level vacancies in the federal government,” Frosh said in a statement. “Few positions are more critical than that of U.S. Attorney General, an office that wields enormous enforcement power and authority over the lives of all Americans. President Trump’s brazen attempt to flout the law and Constitution in bypassing Deputy U.S. Attorney General Rosenstein in favor of a partisan and unqualified staffer cannot stand.”

And like the Senate Democrats’ case, Frosh argued that the appointment is unconstitutional under the appointments clause.

The DOJ’s Office of Legal Counsel (OLC) defended the constitutionality of Whitaker's appointment, arguing in a 20-page document that the president’s actions on this matter are within the bounds of the law. OLC cited legal precedent and the Vacancies Reform Act.

“As all three branches of government have long recognized, the President may designate an acting official to perform the duties of a vacant principal officer, including a Cabinet office, even when the acting official has not been confirmed by the Senate,” Assistant Attorney General Steven Engel wrote a day after Frosh’s motion.

Critics and legal experts, however, have pointed out that the OLC identified one past precedent where an individual served as acting attorney general without Senate approval -- and that was during Andrew Johnson's administration in 1866, shortly after the Civil War ended and a few years before the creation of the Justice Department.

The immigration case

Attorneys in an immigration case before the 2nd Circuit Court of Appeals are seeking to block Whitaker’s appointment, filing a preliminary injunction that says Rosenstein should be the acting attorney general.

Julie Goldberg, the appellate attorney and partner at Goldberg and Associates, argued last week that the injunction is necessary because they are “likely to show that Whitaker’s appointment is unlawful.”

“The appointment of the appropriate Acting Attorney General according to the requirements of the U.S. Code and Constitution is of immense public interest due to the Attorney General’s plenary authority over federal litigation, as well as substantial policymaking and oversight power,” the court filings say.

The attorneys also said Whitaker should be blocked from exercising authorities afforded to an acting attorney general until a ruling is handed down. They noted that if his appointment were ruled invalid at a later point, it would be hard for the courts to reverse his actions.

“Once Whitaker appears as Acting Attorney General in this case, it will be difficult

to unwind any positions that the Attorney General takes regarding the complaint,” the motion reads.

The government has until Dec. 10 to respond to the motion.

The gun rights case

Attorneys for a Nevada man involved in a gun rights case are challenging Whitaker’s appointment, and they’re hoping the Supreme Court will weigh in.

Thomas Goldstein, an appellate attorney and partner at Goldstein & Russell, asked the Supreme Court to replace Trump’s pick with Rosenstein in a case involving the constitutionality of banning convicted felons from owning guns.

The court has not decided whether to take the case, and isn’t likely to do so until January. Still, Goldstein reasoned that the gun case could be a vehicle to challenge the legality of Whitaker's appointment before the highest court in the land, and he says that by January, justices will have had enough time to weigh the request.

The attorneys are challenging Whitaker’s right to serve, making similar arguments that his appointment violates the Attorney General Succession Act and the appointments clause of the Constitution.

“This is the extraordinary case in which the identity of the successor is both contested and has important implications for the administration of justice nationally,” Goldstein wrote in his court filing. “We do want Rosenstein named the acting attorney general, but we say even if we’re wrong, it would be better for everybody to know the answer to this because this is turning into a mess.”

Lydia Wheeler contributed.