The suit argues Whitaker must be confirmed by the Senate to hold the post.<\/b>
\nWASHINGTON \u2014 Three Senate Democrats filed a lawsuit Monday arguing that Acting Attorney General Matthew Whitaker\u2019s appointment is unconstitutional and asking a federal judge to remove him.
The suit, filed by Sens. Richard Blumenthal of Connecticut, Mazie Hirono of Hawaii and Sheldon Whitehouse of Rhode Island, argues that Whitaker\u2019s appointment violates the Constitution because he has not been confirmed by the Senate.
Whitaker was chief of staff to Attorney General Jeff Sessions and was elevated to the top job after Sessions was ousted by President Donald Trump on Nov. 7.
The Constitution\u2019s Appointments Clause requires that the Senate confirm all principal officials before they can serve in their office.
The Justice Department released a legal opinion last week that said Whitaker\u2019s appointment would not violate the clause because he is serving in an acting capacity. The opinion concluded that Whitaker, even without Senate confirmation, may serve in an acting capacity because he has been at the department for more than a year at a \u201csufficiently senior pay level.\u201d
\u201cPresident Trump is denying senators our constitutional obligation and opportunity to do our job: scrutinizing the nomination of our nation\u2019s top law enforcement official,\u201d Blumenthal said in a statement. \u201cThe reason is simple: Whitaker would never pass the advice and consent test. In selecting a so-called \u2018constitutional nobody\u2019 and thwarting every senator\u2019s constitutional duty, Trump leaves us no choice but to seek recourse through the courts.\u201d
The lawsuit comes days after a Washington lawyer challenged Whitaker\u2019s appointment in a pending Supreme Court case dealing with gun rights. The attorney, Thomas Goldstein, asked the high court to find that Whitaker\u2019s appointment is unconstitutional and replace him with Deputy Attorney General Rod Rosenstein.
Rosenstein, the second-ranking Justice Department official, has been confirmed by the Senate and had been overseeing special counsel Robert Mueller\u2019s Russia investigation. Whitaker is now overseeing the investigation.
The Justice Department issued a statement Monday defending Whitaker\u2019s appointment as \u201clawful\u201d and said it comports with the Appointments Clause, the Federal Vacancies Reform Act and legal precedent.
\u201cThere are over 160 instances in American history in which non-Senate confirmed persons performed, on a temporary basis, the duties of a Senate-confirmed position,\u201d Justice Department spokeswoman Kerri Kupec said. \u201cTo suggest otherwise is to ignore centuries of practice and precedent.\u201d
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