Democratic Senators Challenge Whitaker Appointment in Court

The case was assigned to Judge Trevor N. McFadden, a Trump appointee.

The Justice Department last week disclosed an Office of Legal Counsel memo arguing that Mr. Whitaker’s temporary appointment was lawful under the Vacancies Reform Act of 1998. It also cited an 1898 Supreme Court opinion and numerous historical examples in support of the proposition that an office whose holder must normally be Senate-confirmed can be temporarily filled by an acting official who has not gone through the confirmation process.

“There 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,” Kerri Kupec, a Justice Department spokeswoman, said in a statement on Monday. “To suggest otherwise is to ignore centuries of practice and precedent.”

The Justice Department memo pointed to various examples of such a temporary appointment dating back to the earliest days of American history, although it acknowledged that there was very little precedent for an acting attorney general who did not undergo confirmation. There was such an acting attorney general in 1866 for several days, but that was before Congress had created a Justice Department for that official to supervise.

In an interview, Mr. Blumenthal said that most of the historical examples the administration had cited involved short-term appointments demanding immediate attention whose constitutional legitimacy was never tested in court. He also argued that the attorney general’s special powers set that office apart.

“In modern times, this kind of appointment is unprecedented, certainly for an office of this importance,” he said.

In the House, where Democrats will assume control in January, they may soon have more leverage. Representative Jerrold Nadler of New York, the incoming chairman of the Judiciary Committee, has pledged to make Mr. Whitaker his first hearing witness and to subpoena him if necessary. He has warned that there would be consequences for firing Mr. Mueller.

And in a series of letters, Mr. Nadler and other soon-to-be Democratic chairman have put the Justice Department and the White House on notice that they intend to investigate the circumstances of Mr. Sessions’s removal and replacement, and will request access to communications related to both.

But the warnings highlight the dilemma for lawmakers worried that Mr. Trump or his associates might act to curtail the inquiry. Even though Democrats can use the House majority to try to check those impulses, they have no real say over presidential appointments — and in any case, it will be several more weeks until they actually gain access to the levers of power.

Source link

more recommended stories

  • E.P.A. Broke Rules in Shake-Up of Science Panels, Federal Watchdog Says

    Want climate news in your inbox?.

  • Joe Biden’s Health Care Plan Focuses on Shoring Up the Affordable Care Act

    After remaining vague for months about.

  • Huge Turnout Is Expected in 2020. So Which Party Would Benefit?

    The opportunity for Democrats, however small,.

  • On Politics: Trump Tells Congresswomen to ‘Go Back’ to Their Countries

    Good Monday morning. Here are some.

  • The Power Went Out. Where Was de Blasio?

    He was in rural Iowa, illustrating.

  • When Big Tobacco Invoked Eric Garner to Fight a Menthol Cigarette Ban

    In an interview in the sanctuary.

  • Trump Backs Away From Barriers on Foreign Uranium

    WASHINGTON — President Trump said he.

  • Joe Biden Decides He Doesn’t Need to Stay Above the Fray After All

    ATKINSON, N.H. — Joseph R. Biden.

  • Pence Tours Border Facilities – Video

    Channels & Shows Home Search U.S..

  • Man Attacking ICE Detention Center Is Fatally Shot by the Police

    The police fatally shot a man.

  • Pence Defends Conditions at Migrant Detention Centers in Texas

    Vice President Mike Pence played down.

  • Top Ocasio-Cortez Aide Becomes a Symbol of Democratic Division

    WASHINGTON — House Democratic leaders, their.

  • Parties Face ‘Crackup’ as Outsiders Wield Social Media Against the Establishment

    WASHINGTON — On the night that.

  • New Details on Family Separations Fuel Emotional Hearing

    WASHINGTON — At least 18 infants.

  • One Candidate In, One Candidate Out: This Week in the 2020 Race

    Every Saturday morning, we’re publishing “This.

  • A White House Correspondent Departs the Jaw-Dropping Trump Beat

    To judge by Thursday’s events, Mr..

  • House Democrats Postpone Mueller Testimony by One Week

    WASHINGTON — House Democrats said late.

  • E.P.A. Plans to Curtail the Ability of Communities to Oppose Pollution Permits

    “Often the Environmental Appeals Board is.

  • As Tropical Storm Barry Strengthens, FEMA Is Already Stretched Thin

    The increase in disasters has outpaced.

  • 22 States Considered Eliminating the ‘Tampon Tax’ This Year. Here’s What Happened.

    In Maine, the House and Senate.

  • American Commandos Gear Up for New Shadow War With Russia

    SZOLNOK, Hungary — Secretive, behind-the-lines mission.

  • On Politics: Trump Abandons Census Fight

    • Ms. Warren was one of.

  • Democrats Demand Briefing and Documents on Epstein Plea Deal

    WASHINGTON — House Democrats waded further.

  • ‘We Will Leave No Stone Unturned,’ Trump Says in Retreat on Citizenship Issue – Video

    Recent Episodes in Show more videos.

  • Here’s One List Where Kirsten Gillibrand Is Winning and Kamala Harris Is Tied With Marianne Williamson

    Amid the relentless focus on Washington.

  • Trump Turns to Executive Action to Press Citizenship Question on Census

    WASHINGTON — President Trump is planning.

  • Buttigieg, Struggling With Black Voters, Releases Plan to Address Racial Inequities

    WASHINGTON — Pete Buttigieg, whose presidential.

  • U.S. Prepares to Arrest Thousands of Immigrant Family Members

    Nationwide raids to arrest thousands of.

  • Joan Perry’s Defeat in G.O.P. Primary Points Up Party’s Gender Woes

    WASHINGTON — The results are in.

  • State Dept. Intelligence Analyst Quits to Protest Blocked House Testimony

    Want climate news in your inbox?.

  • Alexandria Ocasio-Cortez Is Sued for Blocking Critics on Twitter

    [What you need to know to.

  • So You Want to Overturn Obamacare. Here Are Some Things That Would Be Headaches.

    Many Medicare experiments Under Obamacare, a.