Maryland Asks Judge To Put Matt Whitaker Out Of His Misery

Can we just get a declaration that this guy isn't the Attorney General already?

Pretending Attorney General Matt Whitaker.

Matthew Whitaker is not the Attorney General. He’s not the Acting Attorney General. He’s merely acting, in the thespian sense, as if he’s the Attorney General until some court points out that he has no more legal authority than the grand marshal of the Thanksgiving Day parade.

Clear as I can tell, the Justice Department is being held hostage by Whitaker, and his benefactor Donald Trump, because of standing. Whitaker’s appointment is illegal, and unconstitutional, but who has the authority to tell him that? We’re all kind of waiting of Whitaker to do something so we can have a case or controversy sufficient to reject him. But that’s a dangerous game because once he does something, undoing it could become complicated. The longer Whitaker just sits there, the more opportunity there is for entropy to do its work.

It’s been less than a week since Whitaker was illegally installed, but the state of Maryland is done waiting around. Maryland is involved in litigation involving the Affordable Care Act (Republicans are still trying to kill it, they’re just doing it more quietly now, with the help of federal judges, because their racist base likes Obamacare now that they don’t have to thank a black guy for it). Maryland’s lawsuit is trying to force the Justice Department to enforce Obamacare’s protection of pre-existing conditions, and names Jeff Sessions in his capacity as AG. Now that he’s gone, they have to change it to the acting Attorney General.

Whoever that is.

The state is asking federal district judge Ellen L. Hollander to declare Rod Rosenstein “acting” Attorney General, because it’s certainly not Matt Whitaker.

When explaining why Whitaker is an illegal appointee, I’ve been focused on the Federal Vacancies Reform Act, which seems to clearly state that the president cannot appoint Whitaker to this position. I haven’t seen the Maryland filing, but reports indicate that they’re looking beyond the FVRA and straight to the old Attorney General Succession Act, which was codified in 28 U.S. Code § 508:

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(a) In case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office, and for the purpose of section 3345 of title 5 the Deputy Attorney General is the first assistant to the Attorney General.
(b) When by reason of absence, disability, or vacancy in office, neither the Attorney General nor the Deputy Attorney General is available to exercise the duties of the office of Attorney General, the Associate Attorney General shall act as Attorney General. The Attorney General may designate the Solicitor General and the Assistant Attorneys General, in further order of succession, to act as Attorney General.

That certainly seems “on point” to the issue at hand.

Maryland also argues that the president is exceeding his powers under the appointment clause of the Constitution, an argument shared by Justice Clarence Thomas.

So, to recap, Matt Whitaker’s appointment is likely illegal under a general statute about federal vacancies, a specific statute that outlines the Attorney General succession process, and the U.S. Constitution.

The fact that Matt Whitaker thinks himself the top lawyer in the land doesn’t make it so.

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Whitaker’s Appointment as Acting Attorney General Faces Court Challenge [New York Times]


Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.