Attorneys want Supreme Court to determine legality of Whitaker as acting AG

Attorneys for a Nevada man in a gun rights case asked the Supreme Court on Friday to issue an order that would name Deputy Attorney General Rod Rosenstein as acting attorney general in place of President Trump’s interim appointee, Matthew Whitaker.

The request is the latest legal challenge against Trump’s decision to name Whitaker as head of the Justice Department after Jeff Sessions submitted his resignation as attorney general last week at the president’s request.

{mosads}Thomas Goldstein, an appellate attorney and partner at Goldstein & Russell, said the request was filed Friday in a case before the Supreme Court challenging the constitutionality of the lifetime ban on felons owning guns when it’s applied to someone who served their sentence a long time ago and has since been a law abiding citizen.

The court has not decided whether to hear the case and is not expected to make that determination until January. Goldstein said one reason this case was chosen as the vehicle for challenging Whitaker’s appointment was because it will be pending on the court’s docket long enough for the court to decide on the request.

Federal and state officials, along with an array of legal scholars, have argued that Trump’s selection of Whitaker was both unlawful and unconstitutional.

The Justice Department’s Office of Legal Counsel this week defended the constitutionality of Whitaker’s appointment.

“As all three branches of government have long recognized, the President may designate an acting official to perform the duties of a vacant principal officer, including a Cabinet office, even when the acting official has not been confirmed by the Senate,” Assistant Attorney General Steven Engel said in the 20-page document.

In the filing, the plaintiff’s attorneys argued that Rosenstein, a Senate-confirmed deputy attorney general, automatically succeeded to the role under the federal succession statute and that Whitaker’s appointment violated appointments clause of the Constitution.

They also warned that if Whitaker’s appointment is later found to be invalid it could be difficult and burdensome for the courts to undo his actions.

“Even if this court now determines that the president in fact validly appointed Mr. Whitaker as Acting Attorney General, that ruling would equally benefit the administration of justice by removing the cloud of uncertainty over the appointment and by resolving the burgeoning number of challenges to it that are otherwise likely to be filed in the lower courts,” he argued in the request.

Whitaker was Sessions’s chief of staff before he was chosen to be acting attorney general — a principal officer position, which the attorneys argued requires Senate confirmation.