Whitaker appointment

DOJ urges justices not to delve into Whitaker appointment

By JOSH GERSTEIN

The Justice Department is urging the Supreme Court to turn down — at least for now — a chance to weigh in on whether President Donald Trump acted legally when he installed former Attorney General Jeff Sessions’ chief of staff, Matthew Whitaker, as acting attorney general earlier this month after demanding Sessions’ resignation.

Litigants in several different courts have questioned the legality of Trump’s move, but Solicitor General Noel Francisco told the Supreme Court on Monday that it should stay out of the fray until lower courts had a chance to weigh in.

“No court — in this case or any other — has previously addressed the questions petitioner seeks to inject here,” Francisco wrote. “The Court therefore should decline petitioner’s request to address those matters in the first instance in this suit.”

Lawyers for Nevada businessman Barry Michaels raised the issue with the Supreme Court on Nov. 16, asking the justices to replace Whitaker as one of the official targets of a petition relating to the government’s power to deny firearms to nonviolent felons like Michaels. The motion argued that Whitaker’s appointment was illegitimate and urged the high court to substitute Deputy Attorney General Rod Rosenstein as the respondent.

The Justice Department’s response on Monday defends the legality of Trump’s move, saying that even though one federal law lists Rosenstein as the next in the Justice Department’s order of succession, another law allows Trump to name other officials to fill such roles. The high court filing paraphrases an Office of Legal Counsel opinion released earlier this month asserting that Trump was in the right.

However, the response filed with the Supreme Court does not mention a legal memo that President George W. Bush’s White House issued in 2001 contending that the Justice Department succession order set in statute could not be overridden by the president.

Francisco argues in the new submission that the involvement of other officials like him in federal government litigation means Whitaker’s status is legally irrelevant. The new filing also says repeatedly that Trump’s appointment of Whitaker is temporary, although the president has yet to nominate anyone for the attorney general spot despite spending more than a year publicly pillorying Sessions over his performance.

“Petitioner also argues … that practical considerations weigh in favor of addressing the lawfulness of Mr. Whitaker’s appointment, but the opposite is true. The question may never need to be addressed,” Francisco wrote. “By statute and preexisting regulation, the Department’s litigation is conducted and supervised by officers whose litigation authority does not depend on the validity of Mr. Whitaker’s designation as Acting Attorney General. … The question could also become moot if the Acting Attorney General is succeeded by another official before these cases are resolved.”

Critics pressing for Rosenstein to be officially recognized as acting attorney general have expressed concerned that Whitaker, who is seen as closer to the White House and has been publicly critical of the grounds for special counsel Robert Mueller’s investigation into the Trump campaign and Russia, could effectively throttle that probe.

Three Democratic senators have filed a suit challenging Whitaker’s appointment, the state of Maryland has raised the issue in connection with a suit related to Obamacare, and a criminal defendant in a pet-food-adulteration case in federal court in Missouri has objected to Whitaker’s overseeing that prosecution.

On Monday night when asked about his search for an attorney general, Trump spoke highly of Whitaker.

“We're looking at some people. Matt Whitaker is a tremendous person,” Trump said during his visit to Mississippi.