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Lawyers in federal drug case say Whitaker can’t prosecute

November 14, 2018

LAS VEGAS (AP) — A Nevada man’s federal criminal case in Iowa should be stopped because President Donald Trump’s appointment of an acting U.S. attorney general is illegal, a defense lawyer in Las Vegas said Wednesday.

Federal law covering cabinet vacancies doesn’t allow Matthew Whitaker to serve as acting attorney general and because of that he can’t prosecute Oliver “Sonny” Maupin, attorney Michael Pariente said.

Maupin, 61, is due for trial next month after pleading not guilty to conspiracy with intent to distribute 100 kilograms or more of marijuana. His lawyer said the case stems from a misunderstanding about a land investment in Oregon.

“The statute is really clear. The president is violating the appointments clause,” Pariente said, pointing to the federal Vacancies Reform Act and the Constitution requirement for U.S. Senate confirmation of the attorney general.

Justice Department officials did not immediately respond to emails seeking comment about the Tuesday filing in U.S. District Court in Davenport, Iowa.

However, the department on Wednesday released a 20-page internal legal opinion supporting Trump’s appointment of Whitaker after former U.S. Attorney General Jeff Sessions was forced out a week ago.

The move elevated Whitaker over Deputy Attorney General Rod Rosenstein to become the nation’s chief law enforcement officer without Senate confirmation.

Whitaker had been confirmed by the Senate in 2004 as U.S. attorney in Iowa. But Pariente maintained that confirmation didn’t carry over to the top Justice Department job.

The state of Maryland has also challenged Whitaker’s appointment, arguing that the post must be held by a Senate-confirmed official such as Rosenstein, and congressional Democrats have called the appointment unconstitutional.

The Justice Department opinion says that even without Senate confirmation, Whitaker may serve as acting attorney general because he has been at the department for more than a year at a “sufficiently senior pay level.”

Pariente, in an interview, acknowledged his client’s challenge was a longshot. The filing in the Maupin case was first reported by the Las Vegas Review-Journal .

“It’s a very narrow window of opportunity for us,” the defense attorney said. “But we’ve never had a president try to do something like this before.”

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