The United States Law Week

Supreme Court Rebuffs Challenge to Trump’s Whitaker Appointment

Jan. 14, 2019, 2:49 PM

The U.S. Supreme Court turned away an unusual challenge to President Donald Trump’s appointment of Matthew Whitaker as acting attorney general.

The court refused to remove Whitaker’s name from the case of a convicted felon seeking to restore his gun-possession rights. That step could have cleared up questions about the legitimacy of Whitaker’s appointment.

Washington lawyer Tom Goldstein asked the court to substitute Deputy Attorney General Rod Rosenstein’s name, contending the appointment violates a federal statute and the U.S. Constitution. The Trump administration urged rejection of the request, saying the president has broad authority to select an acting attorney general.

The stakes in the Whitaker fight have shrunk since Goldstein filed the request in November. Trump has since nominated William Barr to fill the position permanently. If confirmed by the Senate, Barr would supplant Whitaker.

The underlying case, a bid for a hearing pressed by Barry Michaels of Nevada, is unrelated to the Whitaker controversy and originally named then-Attorney General Jeff Sessions as the other party. After Trump ousted Sessions and named Whitaker, court officials took the usually non-controversial step of substituting the name of the acting attorney general.

The high court also said it wouldn’t hear Michaels’s appeal.

The Whitaker appointment is still facing other legal challenges. In one case, Maryland Attorney General Brian Frosh says the administration failed to follow a law that addresses Justice Department succession rules. In a second case, three Senate Democrats contend they have been deprived of their constitutional “advice and consent” power to approve or reject cabinet members.

The Justice Department’s Office of Legal Counsel has issued a 20-page opinion defending the appointment as lawful.

Whitaker, 49, a former U.S. attorney in Iowa, had served as Sessions’s chief of staff since September 2017.

The case is Michaels v. Whitaker, 18-496.

©2019 Bloomberg L.P. All rights reserved. Used with permission

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story: Joe Sobczyk at jsobczyk@bloomberg.net Laurie Asséo, Justin Blum

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