Explainer: Was Trump's appointment of Whitaker lawful?

Jan Wolfe

(Reuters) - President Donald Trump’s appointment of Matthew Whitaker as acting U.S. attorney general on Nov. 7 drew another legal challenge on Monday, this time by three Democratic senators.

Senators Richard Blumenthal, Sheldon Whitehouse and Mazie Hirono sued Whitaker and Trump, asking for a court order stating the appointment violated the U.S. Constitution by denying the Senate its right to approve the acting attorney general’s nomination. They also asked that Whitaker be blocked from performing the duties of the office.

The senators’ lawsuit joins at least two other legal challenges to Whitaker’s appointment, including one filed by the state of Maryland on Nov. 13.

Trump appointed Whitaker on Nov. 7 after ousting Jeff Sessions, who the president had repeatedly criticized for recusing himself from overseeing Special Counsel Robert Mueller’s probe into possible collusion in the 2016 U.S. election between the Trump campaign and Russia. Trump has repeatedly called the investigation a “witch hunt.”

Whitaker, who will directly oversee the special counsel probe, has previously echoed Trump’s criticism. In public comments, Whitaker has suggested a successor to Sessions could restrain the investigation or slash its budget.

The Justice Department on Nov. 14 released a legal memo defending Whitaker’s appointment as proper under past practice and prior court rulings.

The following explains the legal questions swirling around Whitaker’s appointment.

What is the legal authority for Whitaker’s appointment?

Trump appointed Whitaker under the Federal Vacancies Reform Act of 1998 (FVRA), a law allowing him to elevate a senior official to agency head for up to 210 days.

The law was intended to address vacancies created by deaths or resignations, but it is unclear whether it applies to those created by firings.

There is some question as to whether Sessions was fired or resigned. The former attorney general submitted a letter of resignation at the president’s “request.”

Some legal experts say that if Sessions was effectively fired, his appointment runs afoul of that law and could be challenged in court.

Could Whitaker’s appointment also be unconstitutional?

Possibly.

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