AG Racine Leads 15-State Coalition Seeking to Block Illegal Appointment of Matthew Whitaker as Acting Attorney General

WASHINGTON, D.C. November 26, 2018 – Attorney General Karl A. Racine today led a 15-state coalition of attorneys general challenging President Trump’s appointment of Matthew Whitaker as Acting Attorney General of the United States. In a friend-of-the-court brief filed in a Maryland case, AG Racine and the amici states argue that Trump’s appointment of Whitaker, the Chief of Staff to the U.S. Attorney General at the Department of Justice (DOJ), to serve as the nation’s top legal officer violates laws clearly indicating that the Chief Deputy Attorney General takes over when an Attorney General steps down or is removed.

“President Trump cannot ignore federal law and Congress’s confirmation powers to elevate a non-confirmed political appointee to act as the nation’s highest law enforcement officer,” said AG Racine. “We’re filing an amicus brief supporting Maryland because President Trump’s appointment of Mr. Whitaker is illegal, unconstitutional, and runs counter to the rule of law.”

Advertisement

The amicus brief, filed Monday with the United States District Court for the District of Maryland, supports Maryland’s motion for a preliminary injunction in an ongoing lawsuit against the federal government regarding the Affordable Care Act. The motion seeks to stop Whitaker from exercising the authority of the U.S. Attorney General, or to substitute Deputy Attorney General Rod Rosenstein as a defendant in the suit. According to the brief, the states have concluded that Mr. Whitaker’s appointment is illegal, ignores long-established vacancy succession laws, and is in violation of Congress’s clear designation of the Deputy Attorney General as the Acting Attorney General.

The brief argues for a prompt resolution of the legal uncertainty surrounding Mr. Whitaker’s appointment because it leaves DOJ decisions open to legal challenge. This could cause the amici states significant harm, because the states rely on the legitimacy of DOJ actions. The U.S. Attorney General takes many actions that fundamentally affect the lives of District residents, and the Office of the Attorney General (OAG) for the District of Columbia works closely with DOJ on a daily basis. Therefore, the District and the other states joining the brief have a compelling interest in DOJ’s ability to work effectively and consistently under the rule of law.

In the brief, the attorneys general note that Congress has protected the Senate’s confirmation power by specifying that, in the event of a vacancy in the U.S. Attorney General’s office, the Senate-confirmed Deputy Attorney General, if available, temporarily assumes the position until a new appointee is confirmed. Since Congress first established DOJ in 1870, it has provided for a specific order of succession in the U.S. Attorney General’s office to maintain continuity of government. The appointment of Whitaker directly undermines Congress’ intent in creating this order of succession.

“Pennsylvania depends on a strong working relationship with the Department of Justice to coordinate law enforcement activity, investigate and prosecute serious offenders, and administer hundreds of millions of dollars in grant programs. The naming of Matthew Whitaker as Acting Attorney General is unlawful, and his appointment threatens the legitimacy of the Department’s actions and its vital relationship with the States,” said Pennsylvania Attorney General Josh Shapiro, who co-led the filing along with AG Racine. “I’ve filed in court to protect Pennsylvania’s interests and immediately prevent actions of an illegitimate Attorney General whose decisions could be invalidated.”

The U.S. Attorney General is one of four original cabinet positions created in 1789 and enjoys near-total authority over the operations of DOJ: overseeing a vast array of law enforcement organizations, including the Federal Bureau of Investigation, the federal prison system and 94 U.S. Attorney’s Offices. It is responsible for supervising all litigation involving the United States, its agencies and employees. As a result, the U.S. Attorney General ultimately determines the positions of the federal administration in court, which have profound consequences for citizens.

AG Racine and Pennsylvania AG Shapiro co-led the amicus brief, and were joined by attorneys general from Connecticut, Delaware, Hawaii, Illinois, Maine, Massachusetts, New Mexico, New York, North Carolina, Oregon, Rhode Island, Virginia, and Washington.

A copy of the brief is available at: http://oag.dc.gov/sites/default/files/2018-11/Multistate-Whitaker-Amicus-Brief.pdf