WASHINGTON – Senate Democrats are going to court Monday to challenge the appointment of acting Attorney General Matthew Whitaker, the third legal test of the former federal prosecutor’s authority in less than a week.
The latest challenge, offered by Sens. Richard Blumenthal of Connecticut, Mazie Hirono of Hawaii and Sheldon Whitehouse of Rhode Island, tracks the two other recent court actions, arguing that Whitaker lacks Senate confirmation required of all Cabinet officials.
The senators’ filing in a District of Columbia federal court contends that President Donald Trump’s appointment was unconstitutional.
Last week, separate legal challenges were filed in Maryland and at the Supreme Court.
Veteran Supreme Court litigator Thomas Goldstein on Friday asked the justices to decide if Whitaker was legally installed as the temporary successor to Attorney General Jeff Sessions, who Trump ousted nearly two weeks ago.
The ultimate goal of all three challenges is the same: a federal court ruling declaring that Deputy Attorney General Rod Rosenstein is the legal and constitutional heir to Sessions.
Beyond the arguments over Whitaker’s authority, Democrats and some Republicans have seized on Whitaker’s past criticisms of Justice Department special counsel Robert Mueller’s inquiry into Russia interference in the 2016 election and have called for his recusal from overseeing the investigation.
Maryland Attorney General Brian Frosh filed his challenge in federal district court in Maryland last week, calling Whitaker’s appointment “illegal and unconstitutional.” The case is scheduled to be heard Dec. 19, but could take months before reaching the Supreme Court.
Goldstein’s effort is aimed at leapfrogging lower courts and getting the justices to decide who Sessions’ replacement should be, perhaps within weeks.