Right after the midterm elections were over, President Donald Trump pushed Attorney General Jeff Sessions out — but if he expected to avoid political waves thanks to his timing, he’s come up sorrowfully short. In the midst of a national conversation about whether Trump appointing Sessions chief of staff Matthew Whitaker as acting attorney general is even legal, the state of Maryland is filing for an injunction against Whitaker, asking Maryland Federal District Judge Ellen Hollander to rule on the issue. The state, as led by its own Attorney General Brian Frosh, argues that Whitaker’s appointment ignores the legal requirement of certain provisions, including a clause in the Constitution itself.
Their filing notes that a federal statute specifically lays out that the deputy attorney general — in this case, Rod Rosenstein — is next in line at the Justice Department should the attorney general position suddenly become empty. Additionally, the Constitution’s own “appointments clause” demands that “very powerful and senior officials” be confirmed by the Senate. While Rosenstein has sat before Congress for confirmation, Whitaker never has.
He’s running with the appearance of a political operative in the nation’s highest law enforcement position. For instance, he has routinely denounced the Russia investigation as led by Special Counsel Robert Mueller to the point of suggesting ways the Trump administration could curtail it under the radar, including through cutting off funding. He’s also parroted the idea of a “Mueller lynch mob,” another side to the president’s own argument that the whole undertaking is a witch hunt — which remains ironic, since Mueller has garnered guilty pleas from four former Trump associates and counting.
Whitaker, though, in his current position is in charge of the Mueller investigation. He took that over from Rod Rosenstein, who appointed the special counsel in the first place after Sessions recused himself thanks to his own vulnerability in the whole ordeal. What Whitaker might do or seek to do remains an open question.
He’s also come down on the Affordable Care Act in the past, which Republicans have unsuccessfully tried to completely throw out. Their repeal and replace efforts fell apart last year, but they’ve still whittled away at it anyway, overturning, for instance, the tax penalty for lack of health coverage.
After that minor repeal, Texas and other Republican-controlled states filed a lawsuit seeking to have a judge declare even more parts of the law — including that protecting people with pre-existing conditions — illegal. Whitaker has in the past expressed a fondness for that idea, declaring a 2012 Supreme Court ruling upholding the ACA to be one of the “worst rulings in the court’s history.”
Maryland is filing their measure seeking Whitaker’s appointment thrown out as part of ongoing legal efforts to counter the aforementioned Texas lawsuit against the ACA.
The tumult is just one area where Republicans have come down hard, seeking to undo legislative legacies left by past leaders. Going into next year, though, more of the force of government will be on Maryland’s side since the Democrats took control of the House of Representatives.
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