In what could quickly become an important Supreme Court battle, Maryland Attorney General, Brian Frosh will reportedly ask a federal judge today to overrule Trump’s appointment of Matthew Whitaker as Acting Attorney General, and instead declare Deputy Attorney General Rod Rosenstein the Acting AG.
After firing attorney General Jeff Sessions last week, President Trump appointed Whitaker to the position until he is able to get another candidate confirmed by the senate. The problem is that the line of succession, according to most legal scholars and Democrats, would make this appointment illegitimate, as the Deputy Attorney General should move to the Acting Attorney General position, which in this case would be Rosenstein.
If Maryland gets its wish and the judge makes such a ruling, it is almost certain that the DOJ would appeal the ruling immediately. This would likely move the case to the Supreme Court where quite a showdown would likely ensue.
Trump’s appointment of Whitaker has been harshly criticized by Democrats as well as some Republicans, as he has been a vocal opponent of the scope of the Mueller probe.
Maryland will argue that the Federal Vacancies Reform Act, which allows the president to fill vacant cabinet positions with other senior officials within the same agency, does not allow Trump to insert his own acting Attorney general in this case. Maryland’s argument is based on the fact that an entirely different federal law dictates what should happened when the Attorney General’s office is vacant, and that law says that the Deputy Attorney General, who in this case is Rod Rosenstein, should take over.
Regardless of what happens here, Democrats are pushing hard for Whitaker to recuse himself from all matters related to the Russia investigation, like Jeff Sessions had done before him.