US Senators Richard Blumenthal, Sheldon Whitehouse and Mazie Hiron dropped a lawsuit Tuesday that challenged the constitutionality of former acting attorney general Matthew Whitaker’s appointment, which was made without the Senate’s consent.
The complaint, filed in November, alleged that Whitaker and President Donald Trump violated the Constitution’s Appointments Clause, which requires Congress’s “advice and consent” before principal federal Officers appointments. Since Whitaker did not participate in a formal Senate judiciary hearing, the Senate was not permitted the opportunity to give any advice or consent to regarding Whitaker’s appointment.
Indeed, before deciding whether to give their consent to Mr. Whitaker serving in such a role, Plaintiffs and other members of the Senate would have the opportunity to consider his espoused legal views, his affiliation with a company that is under criminal investigation for defrauding consumers, and his public comments criticizing and proposing to curtail ongoing DOJ investigations that implicate the President. Mr. Whitaker would not be able to serve as a principal Officer—and exercise the functions and duties of such an office—until he made the disclosures required of a nominee, answered Senators’ questions, and convinced a majority of the Senate’s members to give their consent to his confirmation.
The complaint also charged Trump with violating the rules for the line of succession in the Justice Department. The Senators said that under those rules, Deputy Attorney General Rod Rosenstein should have become Attorney General when President Trump fired former Attorney General Jeff Sessions in November.
The decision to drop the lawsuit comes shortly after William Barr was confirmed last week.