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Maryland to challenge Whitaker appointment in federal court: Report

November 13, 2018

The state of Maryland intends to ask a federal judge to declare Deputy Attorney General Rod Rosenstein as acting attorney general in place of Matt Whitaker who was appointed to that position last week after former Attorney General Jeff Sessions was axed, NBC News reported Tuesday.

Maryland becomes the second jurisdiction to challenge Mr. Whitaker’s appointment. San Francisco City Attorney Dennis Herrera on Monday sent a letter to the Justice Department asking for the legal justification for bypassing Mr. Rosenstein as head of the Justice Department and threatening court action if he doesn’t get it.

Maryland Attorney General Brian Frosh, a Democrat, is expected to file court documents Tuesday, arguing that President Trump violated federal law and exceeded his authority by skipping the Justice Department’s statutory line of succession, NBC News said.

Mr. Trump named Whitaker under the Federal Vacancies Reform Act, which allows a president to fill a vacant Cabinet position with a senior employee of the affected agency. The administration has said Mr. Whitaker fits that category because he was Mr. Sessions’ chief of staff.

But NBC News said Maryland plans to argue that a different federal law dictates what happens when the Attorney General leaves. Under that law, the report said, the deputy attorney general takes over giving the job to Mr. Rosenstein.

Maryland’s legal filings will also argue the Vacancies Reform Act applies to general Cabinet-level vacancies, NBC News said.

Lawmakers have scrutinized Mr. Whitaker’s appointment because he now oversees special counsel Robert Mueller’s investigation into Russian election meddling and possible collusion with the Trump campaign. Prior to joining the Justice Department, Mr. Whitkaer made comments critical of the Mueller probe.

Democrats have seized on those comments urging Mr. Whitaker to recuse himself from the Russia probe.

On Monday, Mr. Whitaker said he will consult with the Department’s ethics office over “matters that may require recusal.”

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