Maryland goes to court to challenge Trump's attorney general pick

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By Sarah N. Lynch and Susan Heavey

WASHINGTON (Reuters) – The state of Maryland launched a court challenge on Tuesday to the legality of President Donald Trump’s appointment of Matthew Whitaker as acting U.S. attorney general, saying the president overstepped his constitutional authority and broke federal law.

Trump installed Whitaker as acting attorney general last week after ordering Jeff Sessions to resign from the post. Trump had repeatedly criticized Sessions for recusing himself in March 2017 from the federal investigation, now headed by Special Counsel Robert Mueller, into Russia’s role in the 2016 U.S. election, a probe Trump has called a “witch hunt.”

Democrats in Congress have voiced concern that Whitaker, a Trump loyalist, could undermine or even fire Mueller.

Maryland asked U.S. District Judge Ellen Hollander to bar Whitaker from appearing in an official capacity as acting attorney general in existing litigation related to the Affordable Care Act healthcare law and to substitute Deputy Attorney General Rod Rosenstein in Whitaker’s place.

With Whitaker’s appointment, Rosenstein is no longer in charge of the investigation.

The city of San Francisco, also involved in litigation against the Trump administration, on Monday also told the Justice Department it may sue to challenge Whitaker’s appointment.

Whitaker’s appointment as the top U.S. law enforcement official gives him authority over Mueller’s investigation, which already has led to criminal charges against a series of former Trump aides and has cast a cloud over his presidency. Whitaker, who had served as chief of staff for Sessions, previously questioned the scope of Mueller’s investigation and spoke about the idea of reducing funding for the special counsel so the probe “grinds to almost a halt.”

Maryland Attorney General Brian Frosh, a Democrat, said in a statement the state plans to challenge Whitaker’s appointment on two legal grounds.

Maryland argues that Rosenstein, the department’s No. 2 official, should have succeeded Sessions under an existing federal succession law that vests full authority in the deputy attorney general should the office of attorney general become vacant. The state also argues that Trump violated the so-called Appointments Clause of the U.S. Constitution because the job of attorney general is a “principal officer” who must be appointed by the president and confirmed by the Senate.

‘UNQUALIFIED AND UNCONFIRMED’

“The Attorney General’s succession statute and the Constitution protect the country against exactly what President Trump has attempted to do here – pluck an unqualified and unconfirmed partisan to be the nation’s chief law enforcement officer in order to protect himself rather than the rule of law,” Frosh said in a statement.

Maryland’s challenge came as part of litigation it filed against the Justice Department in September after Sessions declined to defend the Affordable Care Act’s protection of people with pre-existing conditions in response to a lawsuit led by Texas. The Affordable Care Act is often called Obamacare.

Senator Dianne Feinstein, the top Democrat on the Senate Judiciary Committee, on Tuesday called on the panel’s Republican chairman, Senator Chuck Grassley, to quickly hold hearings with Whitaker and Sessions, who was ousted by Trump a day after his fellow Republicans lost control of the House of Representatives in midterm congressional elections.

The circumstances surrounding the departure of Sessions “raise serious questions, including whether the appointment is lawful and the possible impact on Special Counsel Mueller’s investigation,” Feinstein wrote in a letter to Grassley.

Democrats and other critics have called on Whitaker to step aside from overseeing Mueller’s investigation. On Monday, the Justice Department said Whitaker would consult with ethics officials about any matters that could require him to recuse himself.

White House communications director Mercedes Schlapp told Fox News on Tuesday that Trump had “full and legal authority” to appoint Whitaker.

A Justice Department spokeswoman did not immediately respond to a request for comment. The department is expected in the near future to issue a legal opinion defending Whitaker’s appointment.

Any ruling by Hollander almost certainly would not be the final word on the matter, as the Trump administration would likely appeal any ruling against the appointment to a higher court. Other litigation over the matter also is possible.

Rosenstein appointed Mueller after Trump fired James Comey as FBI director in May 2017. The FBI had been in charge of the Russia probe. Mueller’s investigation has led to criminal charges against dozens of people, including Trump’s former campaign chairman Paul Manafort and his former national security adviser Michael Flynn.

(Reporting by Sarah N. Lynch and Susan Heavey; Additional reporting by Brendan O’Brien; Writing by Will Dunham; Editing by Bill Trott and James Dalgleish)