Three Senate Democrats filed a federal lawsuit Monday asking a judge to oust acting Attorney General Matthew G. Whitaker and install Deputy Attorney General Rod Rosenstein instead.
Sens. Richard Blumenthal of Connecticut, Sheldon Whitehouse of Rhode Island and Mazie K. Hirono of Hawaii, all members of the Judiciary Committee, said President Trump circumvented both the law and the Constitution by designating Mr. Whitaker to helm the Justice Department.
They argue that undermines the Constitution’s demand that the president appoint top officials only with the “advice and consent” of the Senate.
“The U.S. Senate has not consented to Mr. Whitaker serving in any office within the federal government, let alone the highest office of the DOJ,” the senators said.
They received backing from Senate Minority Leader Charles E. Schumer, who said Mr. Trump’s designation of Mr. Whitaker is such a break with the Constitution that it “should concern every American — regardless of party affiliation — who cares about the rule of law and justice in our country.”
The senators’ lawsuit joins at least two other legal challenges to Mr. Whitaker. Maryland Attorney General Brian Frosh has asked a judge in an ongoing case to remove Mr. Whitaker and install Mr. Rosenstein, and a group of lawyers has petitioned directly to the Supreme Court, asking the justices to intervene and rule on Mr. Trump’s move as part of an existing case over felons and gun rights.
The lawsuit is Mr. Blumenthal’s third major filing against Mr. Trump and the administration, following previous complaints over the president’s business empire and the Constitution’s emoluments clauses, and another over the way documents were handled during the confirmation of Supreme Court Justice Brett M. Kavanaugh.
Mr. Whitaker was serving as chief of staff when Attorney General Jeff Sessions was ousted the day after the midterm elections. Mr. Trump designated Mr. Whitaker to assume the post in an acting capacity, leapfrogging Mr. Rosenstein and others who had been confirmed by the Senate.
Democrats say they fear Mr. Whitaker will hinder special counsel Robert Mueller’s investigation into the 2016 elections, Russian meddling and Trump campaign figures’ behavior.
In their lawsuit, the senators say if they had had a chance to vet Mr. Whitaker, they would have prodded him on his views on the special counsel.
Mr. Trump said in an interview with “Fox News Sunday” that he was giving Mr. Whitaker free rein to oversee the special counsel.
“The prospect that a president’s high-level executive branch appointments would be influenced by personal, rather than public, interests is one key reason why the nation’s Founders required such appointees to receive the advice and consent of the Senate in the first place,” said Elizabeth Wydra, president of Constitutional Accountability Center, which is assisting with the senators’ lawsuit.
The Justice Department’s Office of Legal Counsel, the government’s chief internal voice for legal matters, has opined that the Whitaker appointment is both legal and constitutional.
The office pointed to a number of precedents for acting principal officers to be designated in the same way as Mr. Whitaker, including leapfrogging other Senate-confirmed positions.
But the Office of Legal Counsel found just one precedent, from 1866, for a non-Senate confirmed person to serve as acting attorney general.