Donald Trump has taken unprecedented actions to control Special Counsel Robert Mueller’s investigation into the alleged collusion between the Trump 2016 presidential campaign and Russian government operatives. Some of those actions have included firing FBI Director James Comey over “this Trump/Russia thing,” berating his own first appointed Attorney General Jeff Sessions, and working to discredit investigators involved in the case on social media.
The man who was overseeing that investigation, deputy attorney general Rod Rosenstein, has suffered no less of a fate. Accusations by the GOP of unethical and dishonest behavior are endlessly invented and Trump supporters are fully convinced of his guilt.
Since Trump bypassed the deputy attorney general in order to appoint a man unconfirmed by the Senate, Matthew Whitaker, who has made numerous statements about his preconceived judgments on the Mueller case, one attorney, Tom Goldstein, has filed a motion with the Supreme Court to oust him and instate Rosenstein in his place.
CNN reporter Jessica Schneider reports:
‘Goldstein’s motion was filed in connection with a gun rights case that is before the Supreme Court as a petition for a writ of certiorari, meaning the nine Justices will meet in conference at a date still to be determined to decide whether to hear it. The case is Barry Michaels v. Whitaker, which was automatically renamed from Michaels v. Sessions following Whitaker’s appointment.’
The question of whether Matthew Whitaker was lawfully appointed to be acting attorney general arrives at the Supreme Court — in an unusual context. Represented by Tom Goldstein, a plaintiff in a Second Amendment case asks the court to substitute Rod Rosenstein as the defendant. pic.twitter.com/vLoKr3TJlA
— Adam Liptak (@adamliptak) November 16, 2018
Numerous controversies surround Whitaker, who Trump once said he knew but then denied he knew him in statements made to the press after his appointment. Most importantly, Whitaker has made statements that Mueller’s investigation is unwarranted and that no collusion has been found. That has yet to be confirmed and Whitaker could not have known the evidence in the case when he made those statements.
Goldstein says that the case will help to build the lost confidence the American people once had in the Justice Department no matter what the Supreme Court decides.
‘Even if this Court now determines that the President in fact validly appointed Mr. Whitaker as Acting Attorney General, that ruling would equally benefit the administration of justice by removing the cloud of uncertainty over the appointment and by resolving the burgeoning number of challenges to it.’
Motion filed today at #SCOTUS to substitute Dep Atty Gen Rod Rosenstein for Acting AG Matthew Whitaker in case w/pending cert petition, arguing Whitaker’s appointment violates federal statute re AG succession and appointments clause of Constitution https://t.co/XlquREsoIJ
— SCOTUSblog (@SCOTUSblog) November 16, 2018
Goldstein is not alone in his call for a hearing by the Supreme Court. The state of Maryland has filed a motion to have Whitaker’s appointment reviewed.
‘Similar motions challenging Whitaker’s appointment have been filed in other cases, including by the state of Maryland in its Affordable Care Act lawsuit, and by a private attorney in Missouri representing a client charged with wire fraud.’
Normally the President would elevate the Deputy AG to Acting AG until a nominee is confirmed. @realDonaldTrump is specifically bypassing Deputy AG Rod Rosenstein and putting supervision of the Mueller probe in the hands of Matthew Whitaker, a person biased against the probe. https://t.co/MlvznDBodJ
— Ted Lieu (@tedlieu) November 7, 2018
The case is not one with any prior legal precedent on which to draw. No other president has attempted to install an attorney general who has not been confirmed by the Senate for that particular position, although he was as a federal prosecutor in 2004 at the state level in Iowa.
‘The motion contends that Whitaker’s appointment violates federal law and the Constitution. It argues that the Constitution’s Appointments Clause mandates that all principal officers, including the attorney general, must be Senate confirmed, and that the Trump administration should have followed the Attorney General Succession Act when naming Sessions’ replacement.’
Trump has defended his appointment by using his favorite “whataboutism” approach, saying that Mueller was also not confirmed by the Senate, although there is no constitutional requirement for a special counsel to be confirmed. Mueller has, however, been confirmed by the Senate, including his confirmation to become the FBI director.
Maryland Says Matthew Whitaker Appointment As Acting Attorney General Is Unlawful
"Maryland requests a declaration that Deputy Attorney General Rod Rosenstein is the acting attorney general"https://t.co/tE9yGOMeoR
— 𝙳𝚎𝚌𝚒𝚖𝚞𝚜 𝙿𝚛𝚊𝚎𝚗𝚘𝚖𝚎𝚗 (@dpush) November 13, 2018