New New New legal challenge

New legal challenge to Trump’s pick at Justice Department

By JOSH GERSTEIN

A convicted drug trafficker from the Dominican Republic has joined the ranks of those challenging President Donald Trump’s appointment of Matthew Whitaker as acting attorney general.

Due to a technical issue raised by a federal appeals court, Tomas Castillo was re-sentenced Nov. 8 to a term of more than 10 years in prison for smuggling more than five kilograms of cocaine by boat into St. Thomas in the U.S. Virgin Islands in 2016.

That re-sentencing took place the morning after Trump forced the resignation of Attorney General Jeff Sessions and installed Whitaker, who had been Sessions’ chief of staff, to serve as attorney general on an acting basis.

Less than a week later, Castillo’s court-appointed lawyer — Joseph DiRuzzo of Fort Lauderdale — asked to set aside Castillo’s new sentence on the grounds that Trump’s appointment of Whitaker was unconstitutional.
U.S. District Court Judge Curtis Gomez took no immediate action on the motion, so Castillo appealed to the Philadelphia-based 3rd Circuit Court of Appeals, raising as the sole issue the question of Whitaker’s authority.

Castillo’s little-noticed appeal joins a series of other legal challenges to Trump’s decision to name Whitaker as acting attorney general rather than following the Justice Department succession order laid out in a federal law. Justice Department lawyers and the White House contend that a broader federal statute gives Trump the authority to disregard that succession order, but some legal scholars on both ends of the political spectrum have disputed that conclusion.

The highest profile legal attack on Whitaker at the moment is a motion filed at the Supreme Court to have his name struck from the caption of pending petition over the gun rights of felons convicted of non-violent crimes.

Justice Department lawyers responded to that move last week by defending Trump’s action and by saying that even if the appointment was invalid it poses no impediment to that case proceeding. However, the high court submission from Solicitor General Noel Francisco also suggested that the best way to flesh out the legal arguments about Whitaker’s authority is to allow them to play out in lower courts.

“The Court’s general practice is ‘not [to] decide in the first instance issues not decided below’ in the course of the litigation,” Francisco wrote.

Some lawyers found Francisco’s admonition about the usual process a bit rich, since he has asked the Supreme Court to bypass the normal appellate process in cases involving the Deferred Action for Childhood Arrivals and Trump’s ban on transgender troops. Trump’s Justice Department has also repeatedly asked the Supreme Court to step in and block actions by lower court judges in cases that are still unfolding, such as an ongoing dispute over the addition of a question on citizenship to the 2020 U.S. Census.

“We were struck but not surprised by the Administration’s unblushing insistence that this Court follow normal order and refuse to decide this critical issue,” attorneys Michael Zapin and Tom Goldstein wrote in a filing urging the high court to address the Whitaker issue now in the gun-rights-related suit. “The bright contrast between the Government’s position here and the one it articulates in its own applications risks making the Court appear unbalanced, as if it departs from its usual practices only to help this Administration.”

On Saturday, Castillo’s attorney asked the 3rd Circuit to expedite its consideration of the issue and perhaps even for the appeals court’s full bench to weigh in, rather than the usual three-judge panel. The 3rd Circuit has yet to respond to that request.

In addition to the Supreme Court fight and the one at the 3rd Circuit, the defendant in a pet-food-adulteration case in Missouri has asked a judge to dismiss the case because of the alleged defect in Whitaker’s appointment, the state of Maryland has raised the issue in connection with a suit over the Justice Department’s refusal to defend aspects of the Obamacare law, and three Democratic senators have filed a free-standing suit in Washington asking that Whitaker’s appointment be declared unconstitutional.