Democrats file major lawsuit against Trump’s appointment of Matthew Whitaker as acting attorney general

Three Democratic senators have filed a lawsuit accusing Donald Trump of illegally appointing Matthew Whitaker as acting attorney general, saying the president violated the US Constitution by denying the Senate the right to approve the nomination.

The lawsuit, filed in the US District Court for the District of Columbia by Senators Richard Blumenthal, Sheldon White house and Mazie Hirono, is the most high-profile litigation so far to be brought challenging Mr Whitaker’s appointment.

Mr Trump’s decision to appoint Mr Whitaker stirred national controversy, with numerous Democrats noting former Attorney General Jeff Sessions’ chief of staff had previously criticised the scope of the federal investigation into Russian meddling led by Special Counsel Robert Mueller — along with the fact that the Senate must confirm appointees to lead the Justice Department.

In a statement announcing the lawsuit, Mr Blumenthal said, “Americans prize a system of checks and balances, which President Trump’s dictatorial appointment betrays.”

Mr Whitaker took over supervision of the special counsel’s investigation of Russia’s role in the 2016 presidential election after Mr Trump appointed him on 7 November having forced Mr Sessions out of his post.

Mr Trump had criticised Mr Sessions for months for recusing himself from overseeing the Mueller probe, which is also investigating possible collusion between Trump campaign officials and Russia, as well as whether Mr Trump obstructed the probe. Mr Sessions is a former Trump campaign official.

Many in Congress are concerned that Mr Whitaker - who has also brought up the possibility of undermining it by slashing the special counsel’s funding in television interviews - could tamper with the investigation. Indeed, Mr Trump said in an interview on Sunday he would not interfere if Mr Whitaker looked to limit the Russia probe.

“The US Senate has not consented to Mr. Whitaker serving in any office within the federal government,” the lawsuit said.

The Senate, it added, needs an opportunity “to consider his espoused legal views... and his public comments criticising and proposing to curtail ongoing DOJ (Department of Justice) investigations that implicate the President

The lawsuit announced Monday is not the first to dispute his appointment. The attorney general of Maryland last week brought a similar legal challenge, saying Mr Trump violated the so-called Appointments Clause of the Constitution because the job of attorney general is a “principal officer” who must be appointed by the president and confirmed by the Senate.

A hearing on Maryland’s legal challenge has been slated for next month.

Meanwhile, a challenge to Mr Whitaker’s appointment was also made as part of a Supreme Court case on gun rights.

Last week, the Justice Department issued a 20-page legal opinion declaring that Mr Trump’s appointment of Whitaker was lawful under a 1998 law called the Federal Vacancies Reform Act even though he was not a Senate-confirmed official.

The department cited only one instance in US history - in 1866 - in which a non-Senate confirmed person was named acting attorney general. Its legal opinion also relied on an 1898 Supreme Court ruling that a so-called inferior officer is legally able to perform the duties of a principal officer “for a limited time and under special and temporary conditions” without needing Senate confirmation.

Many legal experts have disagreed with the department’s view.

The Democratic lawsuit also rejected that notion, saying it fails to explain why Mr Whitaker's appointment qualifies as “special or exigent.”

Reuters contributed to this report.