In a highly unusual move, the state of Maryland will ask a judge on Tuesday to declare that Deputy Attorney General Rod Rosenstein is the acting U.S. attorney general, according to a new report from NBC News.
If the judge does issue such an order Rosenstein would replace Matt Whitaker, who was appointed to that position last week by President Trump. The U.S. Attorney General position is open because Trump forced the resignation of Jeff Sessions who had been Attorney General since Trump was inaugurated in January of 2017.
A court ruling that Whitaker can’t serve as acting attorney general would be a severe blow to President Donald Trump.
In appointing Whitaker Trump had bypassed the more qualified Rosenstein. Whitaker had endeared himself to the president because he has repeatedly criticized Robert Mueller‘s Russia investigation.
If the federal judge does rule in favor of Rosenstein the case would probably be headed to the Supreme Court because Trump’s Justice Department would immediately appeal the ruling.
Whitaker’s appointment has been widely criticized by Democrats and others because as acting attorney general he now has oversight responsibility for the special counsel’s investigation into Russian election meddling. And he has a very controversial past as a highly-partisan right-wing spokesman and activist.
He once questioned the scope of the Mueller probe and said he had concluded (without evidence) that there was no Trump campaign collusion with the Russians.
For this reason alone many Democrats have demanded that he recuse himself from overseeing Mueller‘s investigation.
Maryland‘s Democratic attorney general, Brian Frosh, is submitting court documents on Tuesday, according to NBC News. These documents say that if Trump had the kind of authority the White House claims, he could fire the attorney general “then appoint a carefully selected senior employee who he was confident would terminate or otherwise severely limit the investigation.”
Frosh’s argument is that by choosing Whitaker Trump has violated federal law and and also has exceeded the appointment authority given to him in the U.S. Constitution.
Trump used a law known as the “Federal Vacancies Reform Act” as his legal authority to appoint Whitaker. This act gives the president the authority to fill a vacant Cabinet position with a senior employee of the affected agency. Whitaker fits in that category, because he had been the chief of staff to Attorney General Sessions before he was fired.
But the Maryland attorney general is asking the judge to rule that a different federal law actually governs what happens when the office of attorney general is vacant. This law would say that when the Attorney General position is vacant, the deputy attorney general takes over. This of course would mean that Rosenstein would be the acting Attorney General until a permanent replacement for Sessions is confirmed by the Senate.
Frosh argues that the Vacancies Reform Act is a general law which does not come into play in this situation where there is a specific law governing how to fill a vacant cabinet position.
Maryland also is arguing that Whitaker’s appointment violates a provision of the Constitution that specifies top positions in the government can be filled only through presidential nomination and confirmation by the Senate. Because Whitaker’s nomination bypassed that process, the state says, he cannot serve as acting attorney general.
“It is troubling, to say the least, that the president is attempting to fill a ‘vacancy’ he created himself with a ‘temporary’ appointment that might last for many months or years,” wrote Frosh, “especially when, as there, the temporary appointee has not been confirmed by the Senate.”
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