The state of Maryland plans to ask a federal judge on Tuesday for an order declaring that Rod Rosenstein is the acting attorney general — not Matt Whitaker, who was appointed to that position last week after the forced resignation of Jeff Sessions.
If the judge does as Maryland asks, ruling that Whitaker cannot serve as attorney general, it would be a blow to President Donald Trump, who bypassed Rosenstein in favor of someone who has repeatedly criticized Robert Mueller’s investigation of Russian election meddling.
The Justice Department would immediately appeal any such ruling, and the case could be on a fast track to the Supreme Court.
Whitaker’s appointment has been widely criticized because he now oversees the special counsel’s investigation into Russian election meddling and the president. While serving as a conservative commentator, he questioned the scope of the investigation and said there was no Trump campaign collusion with the Russians. For that reason, several congressional Democrats have urged him to recuse himself from overseeing Mueller’s investigation.
Maryland’s attorney general, Brian Frosh, a Democrat, argues in court documents to be filed Tuesday that if Trump had the kind of authority the White House claims, he could fire the attorney general “then appoint a carefully selected senior employee who he was confident would terminate or otherwise severely limit the investigation.”
Maryland argues that Whitaker’s selection by Trump violated federal law and exceeded the appointment authority in the Constitution.
Trump named Whitaker acting attorney general under a law known as the Federal Vacancies Reform Act. It allows a president to fill a vacant Cabinet position with a senior employee of the affected agency. Whitaker fits in that category, because he had been the chief of staff to Sessions.
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SOURCE: NBC News, Pete Williams