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Matt Whitaker’s appointment is already threatening to throw the American legal system into chaos

“It’s totally insane.”

by Greg Walters
Nov 14 2018, 4:20pm

President Trump’s appointment of Matthew Whitaker as Acting Attorney General not only threatens the fate of Bob Mueller’s Russia probe, it may imperil everything Whitaker touches at the Department of Justice, legal experts told VICE News.

On Tuesday, Maryland launched a legal assault on Whitaker, asking a federal judge to boot the acting AG out of the job on constitutional grounds. A half-dozen legal experts called the state’s effort unprecedented, but so too is Whitaker’s appointment, they added.

“Anything that Whitaker’s got his hands on could be challenged.”

The challenge is just the opening salvo of a prolonged legal battle that could put Whitaker on the defensive for the entirety of his tenure atop the DOJ. Some experts said that if Whitaker’s appointment is ultimately deemed void, then anything he does in the post may be ruled invalid as well — a ruling that could spark chaos in the American legal system, especially if he’s already spent months on the job. That could include anyone charged this week in the Russia probe led by special counsel Robert Mueller.

The mere threat of such an outcome illustrates the unprecedented challenges Trump has thrust upon the American legal system, forcing lawyers and judges to grapple with exotic hypotheticals once only entertained in classrooms.

“Anything that Whitaker’s got his hands on could be challenged,” said Rebecca Roiphe, a former prosecutor and expert on prosecutorial ethics at New York Law School. “It’s totally insane, but what we’re really seeing is the natural result of Trump’s sustained attack on the Department of Justice.”

Just the beginning

Maryland’s attempt to remove Trump’s AG appointee has no obvious historical precedent, according to a half-dozen legal and constitutional experts who spoke to VICE News. While states frequently challenge federal decisions, they don’t typically try to get the AG fired. And it’s far from clear that the novel angle of attack will even succeed.

“Maryland might be right that the appointment was unconstitutional or unlawful, but even if it was, that doesn’t mean Maryland has standing to make that claim,” said Peter Smith, an expert on Constitutional law at George Washington University. “Courts can’t just opine on any issue. You need to have a plaintiff that’s been somehow injured in the case.”

MATT WHITAKER’S APPOINTMENT IS ALREADY AT RISK OF THROWING THE AMERICAN LEGAL SYSTEM INTO CHAOS
U.S. President Donald Trump speaks at a campaign rally in Las Vegas, Nevada, U.S., September 20, 2018. (AP)

On Tuesday, Maryland Attorney General Brian Frosh asked district judge Ellen L. Hollander to hand Whitaker’s powers over to the department’s No. 2 official, Deputy Attorney General Rod Rosenstein, arguing that Trump exceeded his constitutional authority in appointing Whitaker.

Read: Trump’s appointment of Matt Whitaker to acting attorney general is raising all sorts of legal red flags

Maryland argues that ducking the Senate confirmation process violates the Constitution’s appointments clause, which gives the Senate power to advise and consent about the appointment of the top-most government officials. The state also claims the move likewise circumvented the DOJ’s chain of succession in a way that’s also illegal.

In a statement, Frosh said that Trump’s choice of Whitaker appears to be based on Whitaker’s public criticisms of special counsel Robert Mueller’s investigation into Trump’s ties to Russia.

Trump named “an unqualified and unconfirmed partisan to be the nation’s chief law enforcement officer in order to protect himself rather than the rule of law,” Frosh said in a statement to VICE News.

Democratic Congressman Jamie Raskin of Maryland, vice ranking member of the House Judiciary Committee, echoed Frosh's criticism, calling Whitaker’s nomination an “urgent” matter.

“This is a president who’s engaged in an absolutely renegade maneuver,” Rep. Raskin said. “Whitaker is both Constitutionally and professionally unqualified to occupy this post.”

On Wednesday morning, the Department of Justice fired back at Whitaker’s critics, releasing a 20-page memo providing legal justification for his appointment. The memo declared the move legal under the Vacancies Reform Act, and said the White House had requested oral advice before AG Jeff Sessions resigned last week.

The last time an acting AG was appointed to serve without Senate confirmation was J. Hubley Ashton, in 1866. He served for six days after the resignation of Attorney General James Speed, the DOJ found. Whitaker's already outlasted Ashton's tenure.

A CLOUD OF UNCERTAINTY

Maryland’s novel assault could spur a host of copycats, legal experts said. And all it takes is just one of these challenges to win in court to send the DOJ into chaos. To put it simply: If a court finds Whitaker’s appointment invalid, actions and decisions under his tenure could also be deemed as such, unleashing a host of unprecedented legal questions, legal experts said.

Read: Jeff Sessions is gone. Here's what that means for Robert Mueller

“Any new death penalty case would be able to raise a legal challenge, because you need AG approval to pursue the death penalty,” Roiphe said. “You also need AG approval to subpoena the press, so any member of the press who is subpoenaed while he is AG could also bring a challenge.”

“If I were a defendant indicted with the signature of this acting attorney general, I’d give real thought to making a motion to dismiss based on the alleged invalidity of his appointment.”

Defendants indicted under Whitaker’s tenure will likely start using the questionable nature of his appointment in their defense, said Harry Sandick, a former federal prosecutor turned white-collar defense attorney.

“If I were a defendant indicted with the signature of this acting attorney general, I’d give real thought to making a motion to dismiss based on the alleged invalidity of his appointment,” Sandick said.

Targets indicted by special counsel Mueller, in particular, may be able to reach for this argument, given the attorney general’s direct oversight of the special counsel’s investigation.

If Whitaker survives in the post until after January 3, when Democrats officially take over the majority in the House of Representatives, Congress will jump into the mix.

Whitaker will be the “very first witness” summoned by the House Judiciary Committee, Rep. Jerry Nadler, the committee’s incoming chairman, said on CNN’s "State of the Union" on Sunday.

Cover image: Acting U.S. Attorney General Matthew Whitaker (C), U.S. Secretary of Homeland Security Kirstjen Nielsen (L) and House Minority Leader Nancy Pelosi (D-CA) sit during ceremonies on Veteran's Day at Arlington National Cemetery in Arlington, Virginia, Nov. 11, 2018. REUTERS/Joshua Roberts/File Photo

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