Trump's appointment of Matthew Whitaker as AG challenged in Supreme Court

The fight over the president's appointment of Matthew Whitaker for attorney general took an unusual turn on Friday, when lawyers representing a defendant in a gun case before the Supreme Court, asked the justices to rule on the legality of Whitaker's appointment.

The plaintiff was challenging the law that prevents him from purchasing a firearm because of 2 previous convictions for non-violent crimes. Since current Attorney General Jeff Sessions was named in the suit, his lawyers asked the justices to rule on whether Whitaker was the legitimate attorney general.


“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,” the lawyers, led by prominent Supreme Court advocate Thomas Goldstein, wrote in a court filing.

The court is not required to decide one way or another and could simply ignore or reject the motion.

Michaels’ lawyers argued that Rosenstein, the department’s No. 2 official, should have succeeded Sessions under a federal law that vests full authority in the deputy attorney general should the office of attorney general become vacant.

Some of the same lawyers behind Friday’s motion also are involved in a similar effort brought before a federal judge on Tuesday. In that case, Maryland Attorney General Brian Frosh asked a federal judge to bar Whitaker from appearing in an official capacity as acting attorney general in the state’s ongoing lawsuit against the Trump administration over the Affordable Care Act healthcare law.

Maryland also argued that Trump violated the so-called Appointments Clause of the Constitution because the job of attorney general is a “principal officer” who must be appointed by the president and confirmed by the Senate.

The Justice Department on Wednesday defended the legality of Whitaker’s appointment, saying Trump was empowered to give him the job under a 1998 law called the Federal Vacancies Reform Act even though he was not a Senate-confirmed official.

Putting aside all the legal manuevering, the question should be as chief executive, does the president have the right to appoint whomever he chooses to serve in any capacity he desires? Apparently, the left believes that they should have the final say in who serves the president and in what job. Perhaps they could be helpful and supply a list of positions Trump, as president, will be allowed to fill.

The president has good reason not to trust Rosenstein, who has demonstrated his partisan leanings in the past. Is that reason enough to legally pass him over?

Trump shouldn't have to put up with an attorney general who wants to see him impeached. I'm not buying the "professionalism" argument - the same argument used to explain away the extreme partisanship of FBI investigators who gleefully went after Trump. The idea that anyone's personal animus can be stifled enough to carry out a neutral, non-partisan investigation is absurd. But that's the argument being made to name Rosenstein acting AG rather than Whitaker.

SCOTUS may simply ignore the request from attorneys - a likely outcome since the matter hasn't been adjudicated in the lower courts. But if the Supreme Court wants to send a message to Trump's enemies that he is the president and can name his own acting AG, they are more than welcome to do so.

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