San Antonio judge weighing whether acting AG appointment was lawful
A federal judge is weighing a motion to dismiss an oil-theft case against a San Antonio man whose lawyer argued that the feds had no authority to prosecute his client because President Donald Trump unlawfully appointed Acting U.S. Attorney General Matthew Whitaker.
The ruling by Senior U.S. District Judge David Ezra could be the first court opinion to come after Whitaker’s controversial appointment and has larger implications because it could have the effect of stalling federal prosecutions across the country.
The judge held a hearing Monday morning in which defense lawyer Donald Flanary argued that charges against Luis Valencia should be dismissed because Whitaker was not lawfully confirmed by the U.S. Senate, as the Constitution requires. And because of that, Flanary argued, federal prosecutors in the San Antonio-based U.S. Attorney’s Office have no jurisdiction to proceed against his client.
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Jeff Sessions resigned as attorney general on Nov. 7, saying he was leaving at the request of Trump, who had repeatedly criticized him. The president immediately named Whitaker, who was Sessions’ chief of staff, as acting attorney general, and Trump tweeted that a search for Sessions would be ongoing.
Ezra’s ruling stands to have national consequences because if Ezra finds that Whitaker does not have the authority and dismisses the charges against Valencia, the judge noted, “It would cause a massive disruption in prosecutions across the country because every single defense lawyer would have to file a motion to dismiss predicated on the same grounds as (Flanary’s motion) because if they don’t... it would be malpractice.”
But Ezra said he would not let the national implications sway him.
“My job is not to say, ‘The consequence of this would be terrible, nationwide, and therefore I’m not going to rule on the law,’” Ezra said. “I’m not going to do that.”
Flanary filed his motion on Nov. 12 to dismiss the federal government’s case against Valencia, one of five Texas oilfield workers accused of selling nearly $2 million of oil stolen from companies in the Eagle Ford Shale.
Over the next few days, several lawyers in Washington D.C. and elsewhere filed similar motions, calling into question Whitaker’s appointment and the authority of the Justice Department to act in other legal matters — including a challenge to the federal health care law.
Three Senate Democrats also sued last week, arguing that Rod Rosenstein, deputy attorney general, should have the acting attorney general job until Trump nominates, and the Senate confirms, a permanent successor.
Flanary argued that Whitaker’s appointment is unlawful under the Appointments Clause of the Constitution, which requires that the president get the “advice and consent of the Senate” for appointments to offices that report directly to the president. And, when pressed by the judge, Flanary argued that Whitaker need not have any hand in the local prosecution, or even know about it.
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The prosecutor in the Valencia case, Assistant U.S. Attorney Bud Paulissen, told Judge Ezra that Flanary’s arguments are flawed. He said there is no conflict between the Federal Vacancies Appointment Act and the Appointments Clause, as Flanary suggested.
President Trump appointed Whitaker under the Federal Vacancies Reform Act, a 1998 federal law laying out rules for how a president may appoint temporary officers. Under that law, presidents may appoint a temporary officer to a Senate-confirmed, presidentially appointed position when the previous officeholder “dies, resigns or is otherwise unable to perform the functions and duties of the office.” The president may install any other person who has been confirmed by the Senate, or an “officer or employee” who has served at least 90 days at the agency at a senior pay scale.
Some defenders of the appointment argue that Whitaker, as the former chief of staff, would fall under the second category. But Flanary argues that most acting federal officers are promoted from a position as deputy to the vacant office. The Vacancies Reform Act makes this the default succession, and the Justice Department’s succession law designates the deputy attorney general as the preferred acting attorney general. That would make Rod Rosenstein, who has been through a Senate confirmation, the presumptive successor to Sessions, Flanary argued.
He also argued that Sessions was fired, so the vacancies reform act would not apply to Whitaker.
Flanary told the judge his decision to file the motion to dismiss wasn’t political.
“Our motion has nothing to do with the political considerations of Mr. Whitaker,” Flanary told the judge.
“Who is (Paulissen’s) authority?,” Flanary argued. “Does he get it from Whitaker, Rosenstein or someone else?
The judge asked if it mattered.
“It absolutely matters,” Flanary responded. “There’s a lot of arguments that Rosenstein is in charge, and other arguments that Whitaker is in charge. And we can’t have this conflict.”
Guillermo Contreras covers federal court and immigration news in the San Antonio and Bexar County area. Read him on our free site, mySA.com, and on our subscriber site, ExpressNews.com. | firstname.lastname@example.org | Twitter: @gmaninfedland