In Legal Challenge, Maryland AG Calls Temporary Replacement for Jeff Sessions 'Unconstitutional'

by | November 14, 2018

By Michael Dresser

Maryland Attorney General Brian Frosh filed a motion Tuesday in federal court challenging President Donald Trump's appointment of Matthew Whitaker as acting U.S. attorney general after the ouster last week of Jeff Sessions.

Frosh's motion in U.S. District Court in Baltimore argues that the selection is "illegal and unconstitutional" and  that Deputy U.S. Attorney General Rod Rosenstein should be acting attorney general.

The motion asks a judge to issue an injunction barring the U.S. Justice Department from filing any motions under Whitaker's name in the state of Maryland's continuing  lawsuit against the Trump administration over the Affordable Care Act. The lawsuit seeks to uphold provisions of the Affordable Care Act that protect people with pre-existing medical conditions when they seek insurance.

The motion contends that Trump's appointment of Whitaker violates the legal processes for filling high-level federal vacancies.

"Few positions are more critical than that of U.S. attorney general, an office that wields enormous enforcement power and authority over the lives of all Americans," Frosh said in a statement. "President Trump's brazen attempt to flout the law and Constitution in bypassing Deputy U.S. Attorney General Rosenstein in favor of a partisan and unqualified staffer cannot stand."

The Justice Department declined to comment on Frosh's motion.

Raquel Guillory Coombs, a spokeswoman for Frosh, said the next step will be a hearing before Judge Ellen Hollander. She said the Maryland attorney general's office hopes that occurs within the next week and a half.

Last week, on the day after the midterm elections, Trump requested and received the resignation of Sessions, who had recused himself from special counsel Robert Mueller's  investigation of possible ties between the Trump campaign and the Russian government, to the president's dismay. Trump then bypassed Rosenstein to serve as acting attorney general and installed Whitaker, who had been Sessions' chief of staff.

Michael Meyerson, a professor of law at the University of Baltimore, said Frosh's motion could prevail.

"Frosh is making a strong argument, but it is certainly not a slam dunk," he said. "Those in favor of Whitaker have some very plausible arguments as well."

Meyerson said the argument largely comes down to which of two laws prevails. Frosh's motion argues that it is the Attorney General Succession Act, which requires that a vacancy in the office be filled with a Justice Department official who previously had been confirmed in their position by the U.S. Senate, starting with the deputy attorney general. The Trump administration has based its actions on the 1998 Vacancies Reform Act, which gives the president more flexibility in making temporary appointments in the executive branch.

Frosh argues that the vacancies law did not supersede the more specific law affecting the Justice Department.

His motion contends that Congress, in creating laws that apply to this case, treated the attorney general differently because of the job's unique role in the separation of powers. Frosh said that except when recused, the attorney general has the authority to direct investigations into the president himself.

"Absent the Attorney General Succession Act, the president could fire the attorney general (or demand his resignation), then appoint a hand-picked, junior, Senate-confirmed officer from an entirely different agency, or a carefully selected senior employee who he was confident would terminate or otherwise severely limit the investigation," the motion says.

Rosenstein, a former U.S. attorney for Maryland, is overseeing special counsel Robert Mueller's investigation of possible ties between the 2016 Trump campaign and the Russian government. Whitaker is an administration loyalist who has publicly criticized it.

Frosh's motion contends that Whitaker lacks legal authority to represent the United States in Maryland's Obamacare lawsuit, which the state filed in September. The filing contends Whitaker's involvement in the case harms Maryland's interest in having the lawsuit move forward expeditiously because any filing he authorized would be invalid.

In an interview Tuesday, Frosh said it is important to establish who the U.S. attorney general is before any negotiations take place in the case.

Frosh said the litigation to defend the health care law is critical to more than 400,000 Marylanders who would have no health insurance without the Affordable Care Act.

Frosh is not alone in questioning the legitimacy of Whitaker's appointment.

The San Francisco Chronicle reported Monday that San Francisco city attorney Dennis Herrera sent what he called an "unprecedented" letter to the Justice Department questioning the legality of Trump's choice. The city has four cases pending against the Trump administration.

Two Republican former U.S. attorneys general, Michael Mukasey and Alberto Gonzales, also have raised questions about the selection of Whitaker. The former George W. Bush administration officials told USA Today last week that the position should have been filled with a Justice Department official who had been confirmed by the Senate.

After Trump's election in 2016, the Democratic-led Maryland General Assembly passed legislation the next year granting the state attorney general independent authority to sue the federal government. That's allowed Frosh, a Democrat, to act without securing the permission of Republican Gov. Larry Hogan.

Frosh has taken on the Trump administration on many fronts, including a suit contending the president has violated the Constitution's emoluments clause by profiting from foreign officials bringing their business to Trump's hotel in Washington. Among the more than 20 lawsuits Frosh has filed are ones challenging Trump's travel ban on residents of some majority-Muslim countries, the suspension of rules protecting students from excessive college debt and the administration's rollback of environmental regulations affecting the Chesapeake Bay.

During the recent election campaign, Frosh's Republican opponent, Craig Wolf, criticized the attorney general for his frequent legal actions against the federal government.

Frosh won his re-election bid last week with 64 percent of the vote. Frosh said Tuesday that outcome could be seen as a validation of the stance he has taken.

He added that more litigation could be coming.

"We are preparing to file suit in the eventuality the Interior Department opens up the Atlantic Coast to offshore oil and gas drilling," he said.

(c)2018 The Baltimore Sun