US Senator Mazie K. Hirono (D-Hawaiʻi) joined fellow Senators Richard Blumenthal (D-Conn.) and Sheldon Whitehouse (D-RI.) in filing a complaint challenging the constitutionality of the president’s appointment of Matthew Whitaker as the Acting Attorney General.
On November 7, President Donald Trump appointed Whitaker to oversee the Department of Justice including the Special Counsel’s investigation. The complaint alleges this was in violation of the Constitution’s Appointments Clause.
“Donald Trump cannot subvert the Constitution to protect himself and evade accountability,” Senator Hirono said. “We want the court to make clear that the Senate must confirm Matthew Whitaker’s appointment as Acting Attorney General—otherwise this temporary appointment violates the Constitution’s Appointments Clause. Without exception for President Trump’s allies, principal officers who report directly to the President must be subject to a hearing and confirmed by the Senate.”
The complaint contends that the Constitution’s Appointments Clause requires that the Senate confirm high-level federal government officials, including the Attorney General, before they exercise the duties of the office.
Anne Tindall, Counsel at Protect Democracy, a non-partisan non-profit whose attorneys are representing the Senators in this case, said, “Under the legal theory currently being advanced by the White House, the President could elevate a family member who worked for an agency to lead it without Senate confirmation. The prospect that the Attorney General might seek to serve the President, rather than the American people, reaffirms the importance of a confirmation process that follows the Constitution.”
“The prospect that a president’s high-level executive branch appointments would be influenced by personal, rather than public, interests is one key reason why the nation’s Founders required such appointees to receive the advice and consent of the Senate in the first place,” said Elizabeth Wydra, President of Constitutional Accountability Center, a public interest think tank and law firm which is also representing the Senators in this case.