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San Francisco city attorney threatens legal action over Whitaker appointment

November 12, 2018

San Francisco’s city attorney threatened Monday to take court action if the Department of Justice does not provide a legal justification for the appointment of acting Attorney General Matthew Whitaker.

In a letter to the Justice Department, Dennis Herrera said San Francisco has four cases proceeding in court that name former Attorney General Jeff Sessions as a defendant.

Mr. Sessions was forced out last week after months of blistering criticism from President Trump for recusing himself from special counsel Robert Mueller’s probe of Russian meddling in the 2016 election. He was replaced by Mr. Whitaker.

Given that Mr. Sessions’ resignation will affect those cases, Mr. Herrera wrote that if the Justice Department does not provide legal justification for Mr. Whitaker’s appointment, the city “may be forced” to require a judge to demand it.

Mr. Herrera wrote in the letter that Mr. Whitaker’s appointment runs afoul of the Federal Vacancies Reform Act. Democrats have argued that Mr. Trump ignored the law when he passed over Deputy Attorney General Rod Rosenstein, who was next in line to become attorney general, in favor of Mr. Whitaker.

In addition, Mr. Whitaker had not been confirmed by the U.S. Senate, which is another way Mr. Trump could do an end run on the Justice Department’s statutory line of succession.

“No Cabinet position demands more scrupulous fidelity to the Constitution and the rule of law than attorney general,” Mr. Herrera said in a statement announcing the letter. “This is a position where the officeholder should be beyond reproach. That is why we need to make sure that the president’s appointment here is lawful.”

A Justice Department spokeswoman did not respond to a request for comment.

Mr. Whitaker now replaces Mr. Sessions as the defendant in four cases brought by the city of San Francisco. Three of those cases challenge Mr. Trump’s actions on sanctuary cities while the fourth alleges the Justice Department rescinded civil protections for youth, immigrants and the poor.

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