January 14, 2019

Whitehouse, Blumenthal, and Hirono Oppose DOJ Motion to Delay Court Action in their Lawsuit Against Acting Attorney General Whitaker due to the Government Shutdown

Washington, DC – Today, U.S. Senators Sheldon Whitehouse (D-RI), Richard Blumenthal (D-CT), and Mazie Hirono (D-HI) filed a brief opposing the Trump Administration’s attempt to delay the lawsuit the Senators brought challenging the unconstitutional appointment of Matthew Whitaker as Acting Attorney General. The Administration filed a motion asking the Court to stay the case in light of the ongoing government shutdown. In their brief opposing that motion, the Senators told the Court that “The administration should not be permitted to use a government shutdown of its own making to delay or avoid judicial review of its ongoing violation of the Constitution.” Earlier today, the Court ordered the Justice Department to respond to the Senators’ brief.

Mr. Whitaker’s appointment is unconstitutional because it violates the Appointments Clause, which gives the Senate an essential role in determining who serves in the executive branch’s most important positions.  The Framers included such a requirement to ensure that senior officials in the President’s administration would be scrutinized by democratically elected representatives of the public—U.S. Senators—and to prevent the President, in the words of Alexander Hamilton, from appointing officers with “no other merit than that of…possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.”

“The government’s motion in our case is like lighting your school on fire to avoid failing a test,” Blumenthal said. “The Trump shutdown hasn’t stopped Mr. Whitaker from continuing to act as an unlawfully appointed Attorney General, so it shouldn’t be used as excuse to delay our legal action.”

“First the President violated the Constitution by appointing Matthew Whitaker as Acting Attorney General,” Whitehouse said. “Then he shut down the government with a crisis of his own making.  Now he wants to delay the federal courts’ review of his unconstitutional appointment because of his manufactured crisis.  This is the stuff of banana republics.  We stand ready to prosecute our case, and we urge the court to continue to move this litigation forward without delay.”

Delaying the resolution of the critically important questions this case presents would extend Mr. Whitaker ’s unlawful exercise of power as Acting Attorney General. During that period, he may make innumerable decisions on behalf of the United States and within the Justice Department – many of which may be difficult or impossible to reverse after the fact.

By unilaterally preventing members of the Senate from exercising their constitutional right and obligation to vote on whether or not to consent to Matthew Whitaker serving in one of the most powerful positions in the country, President Trump leaves Senators no choice but to seek a remedy through the courts. The administration should not be permitted to delay the Senators’ access to a judicial remedy due to a government shutdown of the President’s own making.

“The Senators, and therefore the American people, have turned to the courts to uphold the Constitution and to end the unlawful appointment of Matthew Whitaker,” said Protect Democracy Counsel Anne Tindall. “The administration should not be permitted to deny access to justice to the American people due to a government shutdown of their own making. It is antithetical to the very notion of a democracy governed by and for the people.”

“Matthew Whitaker has now been unlawfully serving as Acting Attorney General for over two months, making innumerable decisions on behalf of the United States and within the Department of Justice,” said Constitutional Accountability Center Chief Counsel Brianne Gorod.  “His designation to serve as Acting Attorney General is a blatant violation of the Constitution’s Appointments Clause, a critically important part of our Constitution designed to check presidential abuse, and it is important that the Senators’ challenge to his designation be able to proceed as expeditiously as possible.  There is simply no basis for staying this litigation, especially when the Department of Justice’s own guidance reflects that a lapse in appropriations should not prevent cases from moving forward that, like this one, are of exceptional importance to the American public.”


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