Democrats quickly called for Whitaker to follow his old boss’s lead and recuse himself from overseeing the Mueller probe—a step Whitaker reportedly has no intention of taking. “It’s basically a constitutional crime scene, and we want to try to rope it off with yellow tape as quickly as possible,” Representative Jamie Raskin of Maryland, a constitutional scholar who serves on both the House judiciary and oversight committees, told me in a phone interview on Thursday.
Yet writing letters and making requests is about all the Democrats can do right now. As a practical matter, they won’t actually hold the House majority until January. At that point, they could back up their demands with the authority to subpoena records and testimony from officials at the White House or the Department of Justice. But even then, it’s unclear whether Democrats would be able to force the president’s hand or ensure that Mueller’s investigation—if it doesn’t conclude in the next two months—could proceed unimpeded.
Raskin told me that lawmakers are actively looking into whether Trump violated the Constitution by appointing someone to serve as acting attorney general who has not been confirmed to a high-ranking post by the Senate. “You can’t appoint people to be principal officers of the United States without Senate action,” he said, using the phrase in the Constitution that refers to what are now called Cabinet members. “That’s the question anyway.” In an op-ed published in The New York Times on Thursday, Neal Katyal, a former acting solicitor general in the Obama administration, and George Conway III, the husband of Trump adviser Kellyanne Conway, argued that the president’s appointment of Whitaker was unconstitutional.
Once Democrats assume power in the House, Raskin said, they could vote to initiate a lawsuit challenging actions taken by Whitaker on the grounds that his appointment was unconstitutional. House Republicans used a similar legal tactic against former President Barack Obama to argue that he exceeded his power in the implementation of the Affordable Care Act and when he unilaterally chose to grant protections from deportation to undocumented immigrants.
Whether such a lawsuit would go anywhere is another question. Tara Leigh Grove, a professor at William & Mary Law School, has argued that institutions such as the House of Representatives do not have standing to sue the president over claims of constitutional violations. But, she said in an interview, there is a vigorous ongoing debate in the legal community over this question. “It’s a really tricky area because there’s very little Supreme Court precedent,” Grove told me on Thursday.
In bringing cases against the Obama administration, lawyers for the Republican-controlled House argued that one or both chambers of Congress could sue the executive branch on the grounds that actions exceeding presidential authority infringed on powers reserved for the legislature in the Constitution. But, Grove wrote in her paper, it is individuals who are directly affected, not institutions such as Congress, who are offered the right to sue when constitutional violations occur.
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