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3 Senate Democrats Sue to Have Whitaker Removed

They argue Matthew Whitaker's appointment violates the Constitution
By Newser Editors and Wire Services
Posted Nov 19, 2018 11:45 AM CST
Acting Attorney General Matthew Whitaker gestures after speaking at the Dept. of Justice's Annual Veterans Appreciation Day Ceremony, Thursday, Nov. 15, 2018, at the Justice Department in Washington.   (AP Photo/Pablo Martinez Monsivais)

(Newser) – Three Senate Democrats filed a lawsuit Monday arguing that Acting Attorney General Matthew Whitaker's appointment is unconstitutional and asking a federal judge to remove him. The suit, filed by Sens. Richard Blumenthal of Connecticut, Mazie Hirono of Hawaii, and Sheldon Whitehouse of Rhode Island, argues that Whitaker's appointment violates the Constitution because he has not been confirmed by the Senate. Whitaker was elevated to the top job after Jeff Sessions was ousted by President Donald Trump on Nov. 7. The Constitution's Appointments Clause requires that the Senate confirm all principal officials before they can serve in their office. More from the AP:

  • The Justice Department released a legal opinion last week that said Whitaker's appointment would not violate the clause because he is serving in an acting capacity. The opinion concluded that Whitaker, even without Senate confirmation, may serve in an acting capacity because he has been at the department for more than a year at a "sufficiently senior pay level."
  • The Justice Department issued a statement Monday defending Whitaker's appointment as "lawful" and said it comports with the Appointments Clause, the Federal Vacancies Reform Act, and legal precedent. "There are over 160 instances in American history in which non-Senate confirmed persons performed, on a temporary basis, the duties of a Senate-confirmed position," Justice Department spokeswoman Kerri Kupec said. "To suggest otherwise is to ignore centuries of practice and precedent."
  • "President Trump is denying senators our constitutional obligation and opportunity to do our job: scrutinizing the nomination of our nation's top law enforcement official," Blumenthal said in a statement. "The reason is simple: Whitaker would never pass the advice and consent test. In selecting a so-called 'constitutional nobody' and thwarting every senator's constitutional duty, Trump leaves us no choice but to seek recourse through the courts."
(Read more Matthew Whitaker stories.)

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