Supreme Court passes on case removing Whitaker as acting AG
The Supreme Court denied an effort to strip acting Attorney General Matthew Whitaker’s name from a pending case, swatting down a push to force the justices to send a signal that President Trump’s temporary pick is illegal.
Lawyers had asked the justices to remove Mr. Whitaker and substitute Deputy Attorney General Rod Rosenstein, arguing that he should be the rightful head of the Justice Department under the law, after former Attorney General Jeff Sessions was ousted last year.
The request came in a case involving Barry Michaels, who is challenging a law denying him the right to purchase a firearm after convictions for fraud and financial crimes.
The case is titled Barry Michaels v. Whitaker — and lawyers saw that as a way to try to force the justices to confront whether Mr. Whitaker was properly installed as the acting attorney general.
He had been serving as chief of staff to Mr. Sessions, a senior position, though not confirmed by the Senate. President Trump said that under the Vacancies Act he had the power to pick a senior person from within the department to be acting leader.
Opponents have said there’s a specific law governing the Justice Department’s line of succession and under that law Mr. Rosenstein, who was confirmed to his post by the Senate, was next in line and should have automatically been elevated.
“Further, the appointment of Mr. Whitaker violated Article II of the Constitution,” attorney Michael E. Zapin wrote in his challenge.
The justices on Monday didn’t reach those big constitutional questions, but did reject the effort to change the name of the case. They also refused to hear Michaels’ appeal.
There are several other cases pending attacking the appointment of Mr. Whitaker, who opponents say was not confirmed by the Senate and therefore cannot legally be “acting” attorney general.
In one case filed last month, a gun rights group sued to block the administration’s ban on bump stocks, arguing Mr. Whitaker was wrongly installed and any decision he makes as head of the Justice Department is illegal.