The attorneys generals from Washington, DC, and 14 states filed an amicus brief on Monday in support of Maryland’s motion to replace Matthew Whitaker as US Attorney General with Deputy Attorney General Rod Rosenstein.
The amicus brief was filed by Attorney General Josh Shapiro of Pennsylvania and Attorney General Karl Racine of Washington, DC. The attorneys general from Connecticut, Delaware, Hawaii, Illinois, Maine, Massachusetts, New Mexico, New York, North Carolina, Oregon, Rhode Island, Virginia and Washington also joined in the brief.
The brief calls on the court to resolve the matter quickly because “[t]o allow doubts about the legality of Mr. Whitaker’s appointment to linger is to invite legal challenges to both significant and routine actions undertaken by the Department while he is serving as Acting Attorney General.”
The states argue that the Department of Justice’s November 14 memo is incorrect, stating that the Vacancies Reform Act cannot be used as an alternative method of appointing an acting head of the Department of Justice. Even though the Vacancies Reform Act does not expressly state that the act cannot be used if another statute remains in effect, the brief argues it should not have to. The brief also calls the memo’s theory “novel and exceedingly strange.” Instead, the attorney general succession statute is the only way that an acting Attorney General can be appointed.
The states also argued that clear intent of Congress in order to allow such an appointment to take place, calling the requirement of Senate approval and consent a “critical constitutional protection.” The brief cites a 2001 memo from the Counsel of the President shortly after the Vacancies Reform Act was enacted, which states explicitly that the attorney general position is exempt from the Act.