The criticism against President Donald Trump's choice for acting attorney general has been far-reaching since former Attorney General Jeff Sessions' resigned at the White House's request, clearing the way for Matthew Whitaker to temporarily assume the role of the nation's top law enforcement official.
But some are contending that the president's appointment could in fact be unconstitutional, and the state of Maryland lead the charge Tuesday by asking a federal judge "for an injunction declaring that Mr. Whitaker is not the legitimate acting attorney general as a matter of law, and that the position — and all its powers — instead rightfully belongs to the deputy attorney general, Rod J. Rosenstein," according to the New York Times.
The state argues that Whitaker was unlawfully named acting attorney general, and his appointment stands in conflict with the Attorney General Succession Act, which designates that a statutory order of succession in the Department of Justice should there be a vacancy in the chief law enforcement role. It stipulates that the deputy attorney general would serve in the interim until a new candidate is confirmed by the Senate.
Maryland further contends that Whitaker's appointment is in violation of the Constitution, because it requires principal officers of the government to be appointed "with the Advice and Consent of the Senate." Whitaker was serving in the unconfirmed position of Sessions' chief of staff, before Trump tapped him to temporarily replace the attorney general. Trump may not "bypass the constitutional and statutory requirements for appointing someone to that office," the southern state said in its filing, according to The Times.
This first legal challenge mounts onto the political scrutiny already leveled against Whitaker's legitimacy as attorney general. The Trump administration official openly undermined the special counsel Robert Mueller's probe of alleged collusion between the president's 2016 campaign and Russia in the media last year, an inquiry — which as acting attorney general — Whitaker now has oversight over.
Sen. Chuck Schumer, D-NY sent a letter to the president "to request answers" about Whitaker's installation. "As an unconfirmed political appointee, Mr. Whitaker has not been subject to the scrutiny that the Constitution requires to ensure that he has the character, integrity and ability to fulfill the grave responsibilities of this job," Schumer wrote. "These concerns are heightened by specific expressions of bias against the special counsel investigation that Mr. Whitaker made just last year."
On the day Schumer sent the letter, Trump defended Whitaker's appointment on Twitter:
But the criticism has not been confined to just the Democratic Party. Two former attorney generals from the George W. Bush administration, Michael Mukasey and Alberto Gonzales, have stated that the acting attorney general must be filled by a Senate-confirmed Justice Department official.
"Even Richard Nixon didn’t put in somebody as acting attorney general who had not been confirmed," Mukasey told USA Today, referring to when Nixon's attorney general and deputy attorney general both resigned after defying Nixon’s order and refusing to fire special Watergate prosecutor Archibold Cox. "The successor needs to be a confirmed person, in my view," Mukasey added.
"I don’t think the [Trump] administration did the Justice Department any favors" by naming Whitaker, Gonzales said. "Beyond the legal questions, I don’t think it was a good idea."