- The Washington Times - Thursday, December 27, 2018

A gun rights group this week sued to block the Trump administration’s new ban on “bump stocks,” arguing that Matthew G. Whitaker was wrongly installed as acting attorney general so any official actions he takes are illegal.

While Mr. Whitaker’s appointment previously has been challenged in the courts, the new lawsuit by the Firearms Policy Coalition is one of the first moves to try to invalidate a decision he has made.

Mr. Whitaker’s role as acting attorney general had been to announce grants and make changes to internal Justice Department guidelines.

But his signature Dec. 18 on the bump stock ban is an official action, creating the opportunity for the legal challenge.

Claire Finkelstein, who teaches law at the University of Pennsylvania, said the bump stock ban will survive. Even if Mr. Whitaker is not properly installed as attorney general, the next attorney general can reissue the policy, restarting the approval clock.

But she said an adverse ruling would render Mr. Whitaker a mere figurehead.

“If the lawsuit is successful, Whitaker will be completely paralyzed because it would invalidate anything he would say or do,” Ms. Finkelstein said. “He would be unable to proceed with any Justice Department initiatives, making it very difficult for the Trump administration to stand by him.”

President Trump named Mr. Whitaker as acting Justice chief after he ousted Jeff Sessions from the role just after Election Day in November. Mr. Whitaker had been serving as Mr. Sessions’ chief of staff.

Mr. Trump has nominated William P. Barr, who served as attorney general under President George H.W. Bush, to be attorney general on a confirmed basis. The Republican-led Senate will take up that nomination early next year.

For now, Mr. Whitaker remains a lightning rod.

A coalition of Democratic senators, pro-immigration groups, a collection of state attorneys general and even an indicted Texas businessman all have claimed that Mr. Whitaker’s appointment is illegitimate under the Attorney General Succession Act, since he had not been serving in a Senate-confirmed position.

The Justice Department, though, points to the Federal Vacancies Reform Act, another part of the law, that says anyone serving in a senior executive position can be made the acting head of a department.

An Office of Legal Counsel opinion points to an 1866 precedent in the Justice Department. The OLC also pointed to precedent in the Obama and earlier Trump administrations for senior executives to leapfrog confirmed deputies to become acting secretaries or directors of agencies.

Despite the OLC’s opinion, Justice Department lawyers warned Mr. Whitaker against signing the bump stock ban, fearing it would spur challenges to his authority, The Washington Post reported last week.

Previous anti-Whitaker lawsuits came from Democrats and liberal-leaning activists. The Firearms Policy Coalition lawsuit marks the first time a right-leaning organization has challenged his appointment.

“You now have an attack on Matt Whitaker’s position from both the right and left,” Ms. Finkelstein said. “It is very surprising the group isn’t making a Second Amendment argument here, which is their stated goal. Their primary argument is that Mr. Whitaker violated the vacancies clause and now you have that argument on all sides of the political spectrum.”

‘A credible argument’

The gun rights nonprofit group has asked a federal judge in Washington, D.C., not only to issue an injunction blocking the ruling but ALSO to declare that Mr. Whitaker is not the acting general and bar him from taking any official actions.

“What this group is asking for could impose a political cost because it undermines the legitimacy of Trump’s appointment of Whitaker and increases legal support for political pushback against Trump,” said Kathleen Clark, who teaches government ethics at Washington University.

Before the bump stock decision, Mr. Whitaker had kept a fairly low profile as acting attorney general. While delivering speeches and issuing statements on immigration, he had avoided any major policy decisions.

And it does not appear he has impeded special counsel Robert Mueller’s investigation of Russian meddling in the 2016 election, President Trump and his associates. In fact, he was given the heads-up that Mr. Trump’s former fixer Michael Cohen would plead guilty to lying to Congress before it was publicly announced.

Mr. Whitaker was also absent from the Justice Department’s only major press conference since his appointment. The press conference, which was held last week to announce the indictment of two Chinese hackers, was led by Deputy Attorney General Rod Rosenstein.

Most of Mr. Whitaker’s actions involved dolling out grant money to various Justice Department projects, including $17 million to survivors of last year’s mass shooting on the Las Vegas strip and $56 million for law enforcement health and safety initiatives. He also created a task force that will be run by the Bureau of Alcohol, Firearms, Tobacco and Explosives to crack down on gun violence in Memphis, Tennessee.

Those actions are likely to stand even if the Whitaker appointment is invalid, experts said.

“Someone would have to contest those things, and it is not clear anyone would have standing to do,” Ms. Clark said. “The actions so far would only be vulnerable in the way that the way bump stock regulation is vulnerable.”

Ms. Finklestein said it would be a major move for a judge to invalidate Mr. Trump’s appointment of an interim acting official.

“It would be very significant if Mr. Whitaker’s appointment violates federal law,” she said. “It is a credible argument, but we haven’t seen a lot of traction on the other cases. It is unlikely a judge would go to the point of blessing that claim.”

She said, however, that the path Mr. Whitaker took has left him wounded, even without a ruling.

For example, Democrats have pounced on his criticisms of the Mueller probe while working last year as a political commentator for CNN. Despite growing demands that he recuse himself from the probe, Mr. Whitaker has refused to do so. Mr. Rosenstein has remained in charge of the investigation, but Mr. Whitaker has been involved.

“He’s already regarded as somewhat ineffectual, and so many objections to his appointment have hurt his ability to lead the Justice Department,” Ms. Finkelstein said. “He is not even the one overseeing the Mueller probe, which is why the president appointed him.”

• Jeff Mordock can be reached at jmordock@washingtontimes.com.

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