With reporting by Paula Reid and Clare Hymes
The complaint was filed Monday by Richard Blumenthal of Connecticut, Mazie Hirono of Hawaii and Sheldon Whitehouse of Rhode Island. All three senators sit on the Senate Judiciary Committee and are arguing that Whitaker’s appointment violates the Constitution’s Appointment Clause “advice and consent” role.
They believe that Whitaker’s appointment violates the Constitution because he has not been confirmed by the Senate.
On a conference call, Blumenthal said that with Whitaker’s appointment, “the president has made an end run around the Constitution,” and that this appointment “so flagrantly defies” the Constitution that any viewer of “Schoolhouse Rock” would recognize it.
The complaint asks a judge to declare the appointment unconstitutional and to prevent him from serving as head of the Justice Department.
The Justice Department says that Whitaker’s appointment is lawful and comports with the Federal Vacancies Reform Act. As it has said in response to other challenges to Whitaker’s appointment, the Justice Department stated, “There are over 160 instances in American history in which non-Senate confirmed persons performed, on a temporary basis, the duties of a Senate-confirmed position. To suggest otherwise is to ignore centuries of practice and precedent.”
Moreover, the Justice Department maintains that Whitaker has served long enough at the department and is sufficiently senior enough not to require Senate confirmation to serve as acting attorney general. It is arguing that the position, which oversees all federal law enforcement (FBI, DEA, ATF and federal prisons), as well as the Russia investigation, is not that of a principal officer because Whitaker is only in the job temporarily, no longer than 210 days.
Should Whitaker eventually be found to be illegitimately holding this office, it would be possible for legal challenges to be filed against almost every single action undertaken by the Justice Department during his time in office (DEA raids, FBI arrests, Justice Department charges filed).
Whitaker was Attorney General Jeff Sessions’ chief of staff and was elevated to the top job after Sessions was ousted by Mr. Trump on Nov. 7.
Maryland’s attorney general has also filed a suit over Whitaker’s appointment, declaring it.
Blumenthal told CBS News’ Elizabeth Campbell he wouldn’t presume the court’s timing, but hopes the suit can be resolved as soon as possible.
“We are left with no recourse but to seek a court order,” Blumenthal said.
Here is the filing: