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Lawyers Want the Supreme Court to Bring the Matthew Whitaker Controversy to a Swift End


The controversy surrounding the appointment of Matthew Whitaker as acting Attorney General of the United States has ratcheted up a notch.

Barry Michaels, the Nevada man who has a Petition for a Writ of Certiorari pending in a challenge of a federal gun law, is named as the petitioner in Friday a motion to substitute Deputy Attorney General Rod Rosenstein to serve as acting Attorney General instead of Whitaker. A Petition for Writ of Certiorari is a “document which a losing party files with the Supreme Court asking the Supreme Court to review the decision of a lower court.”

Attorneys Michael E. Zapin, Thomas C. Goldstein and a slew of other attorneys at Goldstein & Russell, P.C. were named as counsel in the latest challenge to Whitaker’s appointment.

They maintain that Deputy AG Rosenstein should have been the one to replace Jeff Sessions as acting Attorney General, not Sessions’ former chief of staff Matthew Whitaker. They claim Rosenstein should have automatically replaced Sessions because Rosenstein was confirmed by the Senate. As a result of Whitaker being appointed without confirmation by the Senate, they also claim that Article II of the Constitution was violated.

“Petitioner respectfully moves this Court to substitute Rod J. Rosenstein in his official capacity as Acting Attorney General for Jefferson B. Sessions III, who resigned on November 7, 2018. The President that day purported to designate Matthew G. Whitaker as Acting Attorney General,” the petition begins. “[Petitioner] submits that, in fact, Mr. Rosenstein — as the Senate-confirmed Deputy Attorney General — automatically succeeded to the role of Acting Attorney General under 28 U.S.C. § 508(a). Further, the appointment of Mr. Whitaker violated Article II of the Constitution.”

In other words, they say the Appointments Clause of the Constitution was violated.

“Controversies are rare. This is the extraordinary case in which the identity of the successor is both contested and has important implications for the administration of justice nationally. This Motion seeks to resolve the dispute,” the lawyers continue. “There is a significant national interest in avoiding the prospect that every district and immigration judge in the nation could, in relatively short order, be presented with the controversy over which person to substitute as Acting Attorney General.”

Legal experts appear to be split over whether the Supreme Court will even consider taking up this issue.

You can read the full petition below.

The Department of Justice’s Office of Legal Counsel (OLC), on the other hand, released an opinion on Wednesday. It said that Whitaker’s appointment “accords with the plain terms of the Vacancies Reform Act of 1998” and is “consistent with the Appointments Clause of the Constitution.”

Critics such as Kellyanne Conway‘s attorney husband George Conway and former Acting Solicitor General of the United States Neal Katyal went so far as to pen an op-ed in the New York Times last week, arguing that exact opposite of what the OLC said.

As Law&Crime’s Ronn Blitzer noted, they, too, argued that Whitaker’s selection as acting AG violated the Appointments Clause of the Constitution.

“President Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional,” they wrote. “It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.”

The OLC said that Whitaker, as acting Attorney General, isn’t a principal officer and therefore the Appointments Clause wasn’t violated.

“We also advised that Mr. Whitaker’s designation would be consistent with the Appointments Clause of the U.S. Constitution, which requires the President to obtain the ‘Advice and Consent of the Senate,’ before appointing a principal officer of the United States,” the OLC said. “Although an Attorney General is a principal officer requiring Senate confirmation, someone who temporarily performs his duties is not.”

“As all three branches of government have long recognized, the President may designate an acting official to perform the duties of a vacant principal office, including a Cabinet office, even when the acting official has not been confirmed by the Senate,” the OLC concluded.

Challenge of Matthew Whitaker’s Appointment by Law&Crime on Scribd

[Image via Chip Somodevilla/Getty Images]

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Matt Naham is the Senior A.M. Editor of Law&Crime.