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Questions surround Trump's appointment of Whitaker as acting AG

By
Nicholas Sakelaris
Protestors gather at Lafayette Park in front of the White House for a campaign rally to Protect Mueller on Nov. 8. President Donald Trump's appointment of Matthew Whitaker as acting attorney general has been criticized because it was done without Senate confirmation. Photo by Ken Cedeno/UPI
Protestors gather at Lafayette Park in front of the White House for a campaign rally to "Protect Mueller" on Nov. 8. President Donald Trump's appointment of Matthew Whitaker as acting attorney general has been criticized because it was done without Senate confirmation. Photo by Ken Cedeno/UPI | License Photo

Nov. 13 (UPI) -- President Donald Trump's appointment of Matthew Whitaker as acting attorney general bypassed the Senate, drawing a legal challenge and questions about its legitimacy.

Sen. Dianne Feinstein, D-Calif., requested Whitaker and former Attorney General Jeff Sessions testify before the Senate judiciary committee.

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"This letter requests a hearing with former Attorney General Sessions, whose abrupt departure from the Justice Department puts Special Counsel Mueller's investigation at risk," Feinstein said in a letter to Sen. Chuck Grassley, R-Iowa, who chairs the judiciary committee. "As the Committee with primary jurisdiction over the Department of Justice, it is critically important that we understand why the Attorney General was forced out of his position."

Democrats have called for Whitaker to recuse himself from the Mueller investigation. Whitaker has been critical of the probe in the past.

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Also, Feinstein wants to question Sessions about the firing of FBI Director James Comey and dig deeper into questions about Russian meddling in the 2016 election.

Officials in Maryland contend Whitaker was unlawfully named by Trump to replace Sessions, who resigned last week on Trump's request.

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The state seeks a preliminary injunction to prevent the federal government from responding to Maryland's healthcare lawsuit, which challenges a Justice Department decision against defending parts of the Affordable Care Act. Maryland also requests a declaration that Deputy Attorney General Rod Rosenstein be named acting attorney general -- the succession plan called for under federal law -- until the Senate can confirm a replacement.

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San Francisco City Attorney Dennis Herrera criticized Trump for making the appointment without input from the Senate as called for in federal law and the Constitution. The city currently has four lawsuits against the U.S. Department of Justice.

"That appears to be unprecedented for someone serving as the country's top law enforcement officer," Herrera said. "This is a position where the officeholder should be beyond reproach. That is why we need to make sure that the president's appointment here is lawful."

President George Bush appointed Peter Keisler acting attorney general in 2007 without Senate approval but Keisler had already been confirmed for a different position.

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"Acting Attorney General Whitaker is not similarly situated," Herrera wrote. "His previous position within the Department of Justice was not one of the positions enumerated in [Section 508] nor did his previous position carry the obligation and imprimatur of Senate confirmation."

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Maryland officials don't want Whitaker to respond to their lawsuit because they say he wasn't lawfully appointed. The state's lawsuit deals with provisions of the Affordable Healthcare Act that Sessions stopped defending after Congress repealed the tax penalty for failure to buy health insurance.

The lawsuit seeks to give people with pre-existing conditions insurance rates similar to other people.

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