Then-candidate Matt Whitaker appearing on Iowa public television in 2014. (Photo: PBS screen grab)

Challengers to the Trump administration’s appointment of Matthew Whitaker as the acting U.S. attorney general are asking the U.S. Supreme Court justices to do something they almost never do: hear oral argument on a court motion.

The Supreme Court is routinely asked to resolve various types of motions during any given term—lawyers ask for more time to file papers, or perhaps they want to file a brief under seal or out of time. Most of these requests are disposed of through a simple order—without oral argument.

In the case Michaels v. Whitaker, Thomas Goldstein of Washington’s Goldstein & Russell and Michael Zapin of Boca Raton, Florida, filed a motion to substitute Deputy Attorney General Rod Rosenstein for Whitaker in a gun-related case. The two lawyers have asked the justices to hold arguments on their motion, which contends Whitaker’s appointment violates the Constitution’s appointments clause.

Whitaker’s appointment, replacing Jeff Sessions after his ouster, has stirred controversy and kicked up myriad court challenges across the country. Critics fear Whitaker, who had assailed the special counsel’s Russia investigation while a lawyer in private practice, could take steps to impede the ongoing probe. President Trump has not announced a permanent successor to Sessions, and no timeline has been provided by the White House.

“The president has gone well past disheartening tweets. This is a power grab. It is a power grab designed to protect the president personally by evading the authority and responsibility of the Senate and this court under the Constitution,” Goldstein wrote in a court filing Wednesday. “Yes, the court can blink at that reality, decline to act, and move on. But history will regret that it did.”

The Justice Department, in the Supreme Court and elsewhere, has defended the appointment of Whitaker, a former U.S. attorney in Iowa, as lawful.

Motions to substitute one defendant or party for another are routine. Argument on them is far from it. Indeed, the justices don’t appear ever to have held oral arguments on a motion to substitute. Goldstein, in an interview with The National Law Journal, said there are good reasons the justices should hear him out in open court.

“It makes sense the court would want to have argument,” Goldstein said. “It’s just so serious. This is in the form of a motion to substitute because it is the only form available, but the legal question is a big deal. It’s the substance, not the package.”

There is some precedent—at least for the substance, if not the package—of the Whitaker challenge. Goldstein and Zapin noted in their papers Wednesday that the justices have held that they will decide an appointments clause challenge in the first instance—without a ruling by a lower court. The attorneys pointed to the 1991 case Freytag v. Commissioner.

The Freytag citation was a clever reference. In that case, the Supreme Court said it would review the appointments clause challenge to the assignment of special trial judges by the Tax Court even though the challengers had waived the claim in the lower courts. The court found no constitutional violation. The then-principal deputy solicitor general, John Roberts Jr., argued for the government.

U.S. solicitor general’s office at Main Justice. (Photo: Mike Scarcella/ ALM)

U.S. Solicitor General Noel Francisco, responding to the motion to substitute, called it a “procedural gambit that should be rejected.” He argued the real party in interest is the U.S. Justice Department or the United States and not the individual performing the duties of the attorney general at a particular time.

The Supreme Court’s rules don’t forbid argument on motions, but do say they “will not be permitted unless the court so directs.”

Edward Hartnett of Seton Hall University School of Law and co-author of Supreme Court Practice could not recall any oral arguments on a motion to substitute. He said there have been arguments on other kinds of motions.

A motion for leave to file a bill of complaint in an original jurisdiction case was heard in 1971 in the case Ohio v. Wyandotte Chemicals. And there was oral argument on cross-motions for summary judgment in the 1992 original jurisdiction case United States v. Alaska.

Before 1980, a party petitioning for an extraordinary writ would file a motion for leave to file the petition, as required for original actions. “Just as oral argument might be heard on the motion for leave to file in original actions, so too it might be heard on motions for leave to file a petition for an extraordinary writ,” Hartnett said.

That’s what happened in Hirota v. MacArthur, a post-World War II military tribunal case in which Japanese residents and citizens, two of whom had been sentenced to death, filed motions for leave to file petitions for habeas corpus, said Stephen Vladeck of the University of Texas School of Law. The justices held oral arguments on the motions and then, in an unsigned opinion, ruled that it lacked jurisdiction over the petitions.

The requirement of a motion for leave to file was abolished with the court’s 1980 rules, according to Hartnett. “Now, one simply files the petition for the extraordinary writ,” he said.

There also have been several oral arguments on applications to individual justices for stays or bail. The last one was before Justice Thurgood Marshall in 1980, according to Cynthia Rapp, the Supreme Court’s former deputy clerk for case management who prepared the In Chambers collection of applications to individual justices.

Several court scholars said they did not anticipate the Supreme Court would hear the motion to substitute Rosenstein for Whitaker. There is no indication when the justices will rule.


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