The controversy over President Donald Trump’s appointment of Matthew Whitaker as acting U.S. attorney general moved to the U.S. Supreme Court on Friday, where advocates want the justices to resolve legal questions about the lawyer temporarily leading the U.S. Justice Department.
Veteran Supreme Court advocate Thomas Goldstein of Washington’s Goldstein & Russell filed a motion in a gun-related case asking the high court to substitute Deputy Attorney General Rod Rosenstein as acting attorney general and to decide the appointment question separate from the gun petition.
“We do want Rosenstein named the acting attorney general, but we say even if we’re wrong, it would be better for everybody to know the answer to this because this is turning into a mess,” Goldstein said.
Legal scholars, members of Congress and others across the political spectrum have debated the legality of Whitaker’s appointment, and Goldstein’s court filing marked the latest challenge to the designation of Whitaker as acting attorney general.
Whitaker had been serving as chief of staff to U.S. Attorney General Jeff Sessions, who resigned, at Trump’s request, on Nov. 7. Critics of the appointment fear Whitaker, openly hostile to the special counsel’s Russia investigation, will interfere in the ongoing matter. Rosenstein had been supervising Robert Mueller III, the special counsel, until Whitaker’s appointment.
“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,” Goldstein wrote in his motion. The dispute potentially could arise in thousands of cases. “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,” he told the high court.
Goldstein’s motion is similar to one he filed earlier this week, assisting Maryland Attorney General Brian Frosh in the health care case Maryland v. United States. In that case, the state is seeking a preliminary injunction or substitution of Whitaker for Rosenstein. A Texas businessman facing federal criminal charges in St. Louis also claims Whitaker’s appointment was illegal.
The gun case at the Supreme Court, Michaels v. Whitaker, is a challenge to a Federal Firearms Act provision that prohibits anyone who has been convicted of a crime punishable by more than one year in prison from possessing a firearm or ammunition. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled against Michaels last year. Michael Zapin, a lawyer in Boca Raton, Florida, filed the certiorari petition in June and he is counsel with Goldstein on the motion that asks Rosenstein be named acting U.S. attorney general.
Goldstein’s court filing addresses two legs of the Whitaker debate: the Constitution’s appointments clause and the Federal Vacancies Reform Act. The appointments clause divides officials into “principal” and “inferior” officers; principal officers must be confirmed by the Senate. The attorney general, as the head of the Justice Department, “is indisputably a principal officer,” Goldstein told the justices. Whitaker has not been confirmed by the Senate.
The Attorney General Succession Act designates the deputy attorney general as acting attorney general and the associate attorney general as immediate successor to the deputy attorney general, Goldstein wrote.
The Justice Department’s Office of Legal Counsel on Wednesday issued a public opinion supporting Whitaker’s appointment.
The opinion, written by Assistant Attorney General Steven Engel, said that Whitaker’s designation as acting attorney general “accords with the plain terms of the Vacancies Reform Act, because he had been serving in the Department of Justice at a sufficiently senior pay level for over a year.”
Although the attorney general is a principal officer, the DOJ’s legal memo concluded, “it does not follow that an Acting Attorney General should be understood to be one.” Engel added: “While a person acting as the Attorney General surely exercises sufficient authority to be an ‘Officer of the United States,’ it is less clear whether the Acting Attorney General is a principal office.”
The request to the justices in Michaels v. Whitaker is posted below: