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Maryland challenges Trump’s choice of Whitaker as acting attorney general

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Then-Iowa Republican senatorial candidate and former U.S. Attorney Matt Whitaker watches before a live televised debate in Johnston, Iowa. Maryland is challenging the appointment of Matthew Whitaker as the new U.S. acting attorney general. A draft filing obtained Tuesday by The Associated Press argues that President Trump sidestepped the Constitution and normal procedure by naming Whitaker to the position in place of Deputy Attorney General Rod Rosenstein.

BALTIMORE — Maryland Attorney General Brian Frosh filed a motion Tuesday in federal court challenging President Trump’s appointment of Matthew Whitaker as acting U.S. attorney general after the ouster last week of Jeff Sessions.

Frosh’s motion in the U.S. District Court in Baltimore argues the appointment is “illegal and unconstitutional” and contends that Deputy U.S. Attorney General Rod Rosenstein should be declared the acting attorney general.

Rosenstein, a former U.S. attorney for Maryland, is overseeing special counsel Robert Mueller’s investigation of possible ties between the 2016 Trump campaign and the Russian government.

Frosh’s filing comes in the state’s existing lawsuit seeking to uphold provisions of the Affordable Care Act that protect people with pre-existing medical conditions when they seek insurance.

The motion contends that Trump’s appointment of Whitaker, an administration loyalist who has publicly criticized the Mueller investigation, violates the legal processes for filling high-level federal vacancies.

“Few positions are more critical than that of U.S. attorney general, an office that wields enormous enforcement power and authority over the lives of all Americans,” Frosh said in the news release. “President Trump’s brazen attempt to flout the law and Constitution in bypassing Deputy U.S. Attorney General Rosenstein in favor of a partisan and unqualified staffer cannot stand.”

Last week, on the day after the midterm elections, Trump demanded and received the resignation of Sessions, who had recused himself in the Mueller investigation to the president’s dismay. Trump then bypassed Rosenstein to serve as acting attorney general and installed Whitaker, who had been serving as Sessions’ chief of staff.

Frosh’s motion contends Whitaker lacks legal authority to represent the United States in Maryland’s Obamacare lawsuit, which the state filed in September. The filing contends Whitaker’s involvement in the case harms Maryland’s interest in having the lawsuit move forward expeditiously because any filing he authorized would be invalid. In an interview Tuesday, Frosh said it is important to establish who the U.S. attorney general is before any negotiations take place in the case.

A spokesman for the U.S. Justice Department could not be reached immediately for comment.

Frosh said he’s concerned about what he called Whitaker’s “extreme views.”

“He’s essentially said to the states that they can ignore the Affordable Care Act and act as if it doesn’t exist,” he said. “That’s not a position the attorney general of the United States should ever take.”

Frosh said the outcome of litigation to defend the health care law is critical to more than 400,000 Marylanders who would have no health insurance without the Affordable Care Act.

Frosh is not alone in questioning the legitimacy of Whitaker’s appointment. Legal scholars, including Lawrence Tribe, professor of constitutional law at Harvard Law School, have called Trump’s action unlawful, pointing to the fact that Whitaker did not hold a position that required him to go through U.S. Senate confirmation. In an opinion piece Sunday in HuffPost, Tribe warned that in criminal cases, defendants could challenge the validity of charges brought against them in the name of the attorney general under the premise that Whitaker is “effectively an impostor.”

Two Republican former U.S. attorneys general, Michael Mukasey and Alberto Gonzales, have also raised questions about Whitaker’s appointment. The former George W. Bush administration officials told USA Today last week that the position should have been filled with a Justice Department official who had been confirmed by the Senate.

After Trump’s election in 2016, the Democratic-led Maryland General Assembly passed legislation the next year granting the state attorney general independent authority to sue the federal government. That’s allowed Frosh, a Democrat, to act without securing the permission of Republican Gov. Larry Hogan.

Frosh has taken on the Trump administration on many fronts, including a suit contending the president has violated the Constitution’s emoluments clause by profiting from foreign officials bringing their business to Trump’s hotel in Washington. Among the more than 20 lawsuits Frosh has filed are ones challenging Trump’s travel ban on residents of some majority Muslim countries, the suspension of rules protecting students from excessive college debt and the administration’s rollback of environmental regulations affecting the Chesapeake Bay.

During the recent election campaign, Frosh’s Republican opponent, Craig Wolf, criticized the attorney general for his frequent legal actions against the federal government. Frosh won his re-election bid last week with 64 percent of the vote. Frosh said Tuesday that the election outcome could be seen as a validation of the stance he has taken toward the Trump administration.

He added that more litigation could be coming.

“We are preparing to file suit in the eventuality the Interior Department opens up the Atlantic Coast to offshore oil and gas drilling,” he said.

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