Attorney General Josh Shapiro Files Amicus Brief to Block Whitaker Appointment

November 26, 2018 | Topic: Rights

Shapiro Leads Coalition of 15 Attorneys General to Protect Legitimacy of Department of Justice and Prevent Whitaker From Exercising Authority of the U.S. Attorney General

HARRISBURG — Attorney General Josh Shapiro, together with Washington D.C. Attorney General Karl Racine, filed an Amicus Brief on behalf of a coalition of 15 Attorneys General to challenge the Trump Administration’s unlawful appointment of Matthew Whitaker as Acting Attorney General of the United States.

The amicus brief filed Monday with the United States District Court for the District of Maryland in Baltimore, supports Maryland’s motion for a preliminary injunction to stop Whitaker from exercising the authority of the United States Attorney General, or to substitute Deputy Attorney General Rod Rosenstein as a defendant in an ongoing lawsuit between Maryland and the federal government.  According to the brief, the states have concluded that Mr. Whitaker’s appointment is unlawful, ignores long-established vacancy succession statutes, and is in clear violation of Congress’ controlling statutory designation of the Deputy Attorney General as the Acting Attorney General. 

Attorney General Shapiro’s brief argues for a prompt resolution of the legal uncertainty surrounding Mr. Whitaker’s appointment because the unlawful appointment requires immediate correction to prevent harm caused by decisions made by an illegitimate United States Attorney General.  The U.S. Attorney General takes many actions that fundamentally affect the lives of Pennsylvania residents, and the Office of Pennsylvania Attorney General works closely with the Department of Justice on a daily basis, Therefore, Pennsylvania and the other states joining the brief have a compelling interest in the Justice Department’s ability to work effectively and consistently under the rule of law. 

 “Pennsylvania depends on a strong working relationship with the Department of Justice to coordinate law enforcement activity, investigate and prosecute serious offenders, and administer millions of dollars in grant programs. The naming of Matthew Whitaker as Acting Attorney General is unlawful, and his appointment threatens the legitimacy of the Department’s actions and its vital relationship with the States,” Attorney General Josh Shapiro said. “I’ve filed in court to protect Pennsylvania’s interests and immediately prevent actions of an illegitimate Attorney General whose decisions could be invalidated.”

In the brief, Attorney General Shapiro notes that Congress has protected the Senate’s confirmation power by specifying that in the event of a vacancy in the Office of Attorney General, the Senate-confirmed Deputy Attorney General temporarily assumes the position until a new appointee is confirmed. Since Congress first established the Department of Justice more than 150 years ago, it has provided for a specific order of succession in the Office of Attorney General to maintain continuity of government.  The appointment of Mr. Whitaker directly undermines Congress’ intent in creating this order of succession.

“All actions taken by an Acting Attorney General who is legally ineligible to serve could be vulnerable to challenge,” Attorney General Shapiro said. “Whitaker’s appointment has opened the Department of Justice up to those challenges, which create grave risks for Pennsylvania. I urge the Trump Administration to follow the law, respect the Senate’s confirmation authority, and follow the legal process to appoint a legitimate Attorney General.”  

The Office of Attorney General is one of four original cabinet positions created in 1789, and enjoys near-total authority over the operations of the Justice Department: overseeing a vast array of law enforcement organizations including the F.B.I., D.E.A., the U.S. Marshals Service, the federal prison system and 94 U.S. Attorney’s Offices.  It is responsible for supervising all litigation involving the United States, its agencies and employees, of which there are more than 100,000.  As a result, the Attorney General ultimately determines the positions of the Administration in court, which have profound consequences for citizens.

In addition to Attorney General Shapiro and Attorney General Karl Racine, the amicus brief was joined by the Attorneys General of Connecticut, Delaware, Hawaii, Illinois, Maine, Massachusetts, New Mexico, New York, North Carolina, Oregon, Rhode Island, Virginia, and Washington.

The brief can be viewed here.

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