Veteran Supreme Court litigator Thomas Goldstein argues that Whitaker — a Trump loyalist who was appointed to his post by the president last week — cannot take over for ousted Attorney General Jeff Sessions because Whitaker hasnt been confirmed by the Senate.
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The unusual vehicle for the challenge is a gun rights lawsuit that was initially filed against Sessions in his former capacity as attorney general. Goldstein is asking the justices to determine who should now be the valid defendant in the case — and many other pending cases directed at the federal governments top law enforcement official.
It turns out, Whitaker was once paid at least $10,000 in 2014 to serve on the advisory board of an invention company called World Patent Marketing. The newly-appointed Attorney General appeared in promotional videos, provided quotes in press materials, and in general showed a strong association with World Patent Marketing.
This is the extraordinary case in which the identity of the successor is both contested and has important implications for the administration of justice nationally, the motion states.
Goldstein contends that federal law requires that the Senate-confirmed deputy attorney general ― Rosenstein ― should automatically take over when the attorney generals office is vacant. Whitaker was serving as Sessions chief of staff, a post that was not Senate-confirmed.
Goldstein also filed a motion in federal court earlier this week challenging Whitakers appointment on behalf of Maryland Attorney General Brian Frosh (D), The Washington Post reported. It too argued that Rosenstein be installed in Whitakers place.
Whitaker is under pressure to recuse himself from anything to do with the ongoing investigation into possible Russian collusion by the Trump campaign. He previously expressed disdain for the probe by special counsel Robert Mueller.
Video: Victims of Scam Company Linked to Matthew Whitaker Say They Lost Everything
The Justice Departments Office of Legal Counsel has issued an opinion supporting Trumps authority to appoint Whitaker.
As if a time travel cryptocurrency wasnt strange enough, World Patent Marketing also announced a “masculine toilet” invention for “well-endowed men” so they can avoid having their genitalia touch toilet water.
Lawyers Petition Supreme Court to Rule on Legality of Whitaker Appointment
The lawsuit linked to Fridays challenge was brought by Barry Michaels, a Nevada man convicted of securities fraud two decades ago, who wants the Supreme Court to rule that people convicted of certain non-violent felonies should not lose the right to own a gun. Its not clear when the justices will respond to the motion challenging Whitakers appointment.
Trumps Craft Strategy: Discredit Everyone Until Nobody Believes Anything
More than three dozen sealed criminal indictments have been added to the federal court docket in Washington, D.C. since the start of 2018.
Sealed criminal court files are assigned a case number, but do not indicate the identity of the parties or the nature of the charges, so it is impossible for the public to discern what those sealed cases contain.
But several legal experts told ABC News the number of sealed cases awaiting action right now is unusual. Fourteen were added to the docket since late August alone, a review by ABC News has found, just as the midterm elections were drawing near and longstanding Justice Department policy precluded prosecutors from taking any public action that could appear to be aimed at influencing political outcomes.
And the inadvertent discovery on Thursday night of what appear to be secret charges pending against WikiLeaks founder Julian Assange has drawn fresh attention to the mystery. Legal experts told ABC News that the sealed cases could be tied to Special Counsel Robert Muellers ongoing investigation of Russian interference in the 2016 election and possibly part of a quiet effort to protect his investigation from any premature effort to shut it down.
The Trump administration, however, argues that the appointment is legal under the Federal Vacancies Reform Act. On Wednesday, the Justice Department issued a 20-page opinion stating that the act allows for senior staffers to be appointed if they have been in office for at least 90 days. Whitaker formerly worked as Sessions chief of staff. The Justice Department also said that Whitaker doesnt require Senate confirmation because the appointment is temporary.
Has The New Attorney General Already Passed Information about Mueller to The White House? :: Politics :: Features :: Donald Trump :: Paste
I assume that Mueller knew that once the election was over, there could be an existential threat to his investigation, said Matthew Miller, a former senior Justice official under former Attorney General Eric Holder. He knew the best thing to do was act before that.
Subject of Mueller probe boasts of ties to acting AG Matt Whitaker
A spokesperson for the special counsels office declined to comment on the investigation or the uptick in sealed indictments.
Sealed indictments are often used in cases where a defendant is overseas and U.S. prosecutors dont want to tip off their target before they have a chance to make an arrest. But they can also be used to pressure someone to flip on a more important target, according to Kendall Coffey, who served as U.S. Attorney in the Southern District of Florida in the mid-1990s, especially if there was someone who presented the hope of providing proactive assistance – undertaking conversations, especially recorded conversations with other suspects in the investigation.
Mueller has used a sealed indictment before. The case against unpaid Trump campaign aide George Papadopoulos remained a secret for three months before charges of lying to investigators were eventually made public in October 2017. Only then, after Muellers team secured a cooperation agreement, did the public learn the one-time foreign policy advisor would be the first from Trumps campaign to plead guilty in the probe.
Trump Basically Just Admitted Appointing Matt Whitaker Was All About the Mueller InvestigationActing Attorney General Matt Whitaker Allegedly Threatened a Man Who Criticized His Scam CompanyTrump Denies Knowing His New Acting AG, A Fellow Ranting TV LunaticAbout the authorDavid BoddigerDavid BoddigerWeekend Editor, Splinter
Brett Kappel, a veteran political law expert said he calculated that 16 percent of all the criminal cases filed thus far in 2018 remained under seal, a number he considered unusually high. And those were kept under seal much longer than usual, he said.
Lawyers seek dismissal of federal cases, cite legality of appointment of acting attorney general
They normally only remain sealed until the person who has been indicted has been apprehended, he said. The other major reason why a case is initially sealed is that publicly revealing the name of the accused would impede an ongoing investigation.
The petition was filed on Friday by attorney Tom Goldstein in a separate a gun rights case that the court has yet to hear. Even if Supreme Court justices decline to hear that case, which is Barry Michaels v. Whitaker, they still could rule on the question of Whitakers appointment, Goldstein told CNN.
Coffey said he did not know if the stack of secret charging papers had any ties to Mueller. But if they did, he said, they would have enabled the special counsels team to keep cases moving ahead of the midterms.
If indeed Mueller had prepared cases for prosecution but did not want the announcement to impact on pending elections then a sealed indictment might have been the preferred method, Coffey said.
(MORE: Trump met with legal team over 3 days to discuss responses to questions from Muellers office: Sources)
Mueller can only indict someone with the approval of the Attorney General, and once the indictments have been approved and filed, any effort to withdraw charges would involve a judge.
At the time, those approvals fell to Deputy Attorney General Rod Rosenstein because Attorney General Jeff Sessions had recused himself from the Russia matter. But President Trump had sent strong signals he planned to replace Sessions after the elections with someone who might be more willing to curtail the probe into Russian election interference and possible collusion.
The day after the elections, Trump appointed acting Attorney General Matthew Whitaker, who has previously denounced the Mueller probe. A Justice Department spokeswoman said this week that Whitaker is fully committed to following all appropriate processes and procedures at the Department of Justice, including consulting with senior ethics officials on his oversight responsibilities and matters that may warrant recusal.
You cant prevent a new AG from blocking new indictments, Miller said. But if you were ready to move on cases, you could return a bunch of indictments under seal. If the stumbling block is approval from Muellers supervisors, you get that approval while you still have a supervisor who approves of your work.