Senators Weigh In on Whitaker Appointment

Three senators, Blumenthal, Whitehouse, and Hirono, have now filed a complaint challenging the appointment of Matthew Whitaker as Acting Attorney General.  Their complaint differs slightly from the other two motions previously filed that challenge Whitaker’s appointment in two respects.

First, the Senators allege that they have standing to challenge the appointment because they:

[A]re sitting U.S. Senators who were denied the right to vote guaranteed to them by the Appointments Clause. They bring this lawsuit to ask the Court to remedy that injury and vindicate their ability to fulfill their constitutional role.

Second, they set forth in greater detail the particular substantive areas that they might direct attention to if allowed to investigate whether to vote to extend the advice and consent of the Senate to Whitaker’s nomination:

1. Senators would have had the opportunity to consider Mr. Whitaker’s criticism of the two active federal law enforcement matters involving President Trump, his campaign, and his close associates, including the investigation currently being conducted by Special Counsel Robert Mueller into whether those associated with Mr. Trump’s presidential campaign—including the President and members of his family—cooperated with Russian efforts to interfere in the 2016 presidential election, and whether the President or others have attempted to obstruct the investigation. Mr. Whitaker has been a vocal and frequent critic of the Mueller investigation. Despite the ongoing nature of the investigation into possible coordination between the Trump campaign and the Russian government, as well as possible obstruction of justice, Mr. Whitaker has made public statements denying that the President or his associates engaged in such obstruction of justice or in a conspiracy with the Russian government.  And despite having made those statements, Mr. Whitaker has not recused himself from supervision of these two investigations.  ¶¶ 25-26 at Complaint 9-10 (footnote omitted).
2. Senators also could consider public comments Mr. Whitaker has made about the proper interpretation of the Constitution and other legal matters. For instance, Mr. Whitaker has suggested that the judiciary should not be “the final arbiter of constitutional issues,” which runs directly counter to centuries of established law concerning our Constitution’s separation of powers, see Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).8He also has said that states should be able to “nullify” federal law,an idea the Framers of the Constitution rejected when they adopted the Supremacy Clause, which makes federal law “the supreme Law of the Land.” U.S. Const. art. VI, cl. 2. ¶ 27 at Complaint 11 (footnote omitted). 
3. Senators also could consider that Mr. Whitaker was on the board of a company that allegedly defrauded consumers and is under investigation by the FBI, which is part of the very Department that Mr. Whitaker has been designated to lead. From October 2014 until shortly before he joined the DOJ, Mr. Whitaker was a member of the advisory board of World Patent Marketing, a company that promised clients it would patent and market their ideas for a sizable fee. Yet the company allegedly took clients’ money—amounting to millions of dollars—and provided almost no services in return. Earlier this year, the company was ordered by a court to pay more than $25 million to the consumers who were defrauded. The FBI is also conducting a criminal investigation of the company’s conduct. Both the court order and the criminal investigation relate to conduct that occurred while Mr. Whitaker was on the company’s board.  ¶ 28 at Complaint 11-12 (footnote omitted). 
4. Finally, Senators could consider Mr. Whitaker’s contacts with the White House regarding specific enforcement matters—serving as the White House’s “eyes and ears” within the DOJ, according to White House Chief of Staff John Kelly—in violation of policies governing contacts between the DOJ and the White House.  ¶ 29 at Complaint 12 (footnote omitted).

The Trump Administration appears to be stonewalling with respect to one relevant area that bears on Whitaker’s qualifications for the top job at Justice-his financial disclosures.  This area of investigation has not been the subject of a great deal of attention-yet.