Judicial Watch Files Amicus Brief Defending the Appointment of Matthew Whitaker as Acting Attorney General

Calls Maryland Attorney General’s Request for Federal Judicial Action to Enjoin Whitaker’s Appointment ‘Naked Attempt to Wage Political Battle in the Courts’

(Washington, DC) – Judicial Watch announced today it has submitted an amicus curiae brief to the U.S. District Court for the District of Maryland in support of President Trump’s choice of Matthew Whitaker for acting United States attorney general (State of Maryland v. United States of America, et al. (No. 1:18-cv-02849)).

Less than a week after President Trump on November 7 appointed Matthew Whitaker, then-chief of staff to Attorney General Jeff Sessions, as acting attorney general, Maryland Attorney General Brian Frosh, on behalf of the State of Maryland, filed a motion, asking the court to prohibit the administrative substitution of Whitaker to replace former Attorney General Jeff Sessions as one of nine defendants in a pending lawsuit.

Judicial Watch argues that the “State of Maryland’s naked attempt to wage a political battle in the courts should be denied” and its motion both misstates the law and is fatally flawed on procedural grounds.

Judicial Watch argues that the appointment is valid, as acts performed by a person acting under the color of official title are valid “even though it is later discovered that the legality of that person’s appointment or election to office is deficient.” Judicial Watch contends that “Supreme Court precedent suggests the de facto officer doctrine would apply” and precludes issuance of an injunction in this case.

According to the Judicial Watch brief, the doctrine “springs from the fear of chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question and seeks to protect the public by insuring the orderly functioning of the government despite technical defects in title to office.”

Judicial Watch also argues that the Maryland attorney general misstates the law in claiming that Deputy Attorney General Rod Rosenstein should assume the top position of attorney general. In attempting to support his claim that Trump’s appointment of Whitaker violates the Attorney General Succession Act, Frosh contends:

Congress … adopted the Attorney General Succession Act to specify the acting head of that office [attorney general] in particular. Without exception, the statutes have required that the Department of Justice’s second-in-command serve as Acting Attorney General, never allowing the President to override that rule. [Emphasis added]

The Judicial Watch brief responds in rebuttal:

Contrary to the State of Maryland’s assertion, the Attorney General Succession Act in no way mandates that the Deputy Attorney General becomes the Acting Attorney General.  The statute says “may….” To the extent the Vacancies Reform Act is constitutional – and the State of Maryland does not argue otherwise – the Attorney General Succession Act does not prohibit the VRA’s [Federal Vacancies Reform Act] application in this case.

According to Judicial Watch, the State of Maryland’s motion for an injunction also fails procedurally because its lawsuit is against Attorney General Sessions, in his official capacity as attorney general, an office he no longer holds.  Judicial Watch argues:

[The lawsuit] is not against him in his personal capacity. There is nothing for the Court to do. Substitution is automatic.

Frosh revealed his political and ideological motives in filing the suit when he said, “[T]his guy, Mr. Whitaker, has extreme views and that’s dangerous in itself.” A coalition of attorneys general from 14 states and Washington, D.C. also have weighed in by filing an amici curiae brief supporting the State of Maryland. D.C. Attorney General Karl A. Racine, who is leading the coalition of amici called Trump’s appointment of Whitaker “illegal, unconstitutional, and runs counter to the rule of law.”

Pointing to numerous partisan legal challenges and separate moves by Maryland’s own lawyer to litigate a similar case before the Supreme Court, Judicial Watch also filed a Public Information Act request with the Maryland Attorney General about its efforts to challenge the Whitaker appointment.

“Anti-Trump politicians shouldn’t be allowed to abuse the courts to achieve their political goals,” said Judicial Watch President Tom Fitton. “The court should deny Maryland’s naked attempt to wage a political battle in the courts.”

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