Supreme Court rejects challenge to Matt Whitaker's appointment as acting attorney general

Opponents of his appointment said he was not qualified for the position because he was not subject to Senate confirmation.
Matt Whitaker
Matt Whitaker, then a Republican Senate candidate in Iowa, before a televised debate in 2014.Charlie Neibergall / AP file

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By Pete Williams

WASHINGTON — The Supreme Court on Monday rejected a challenge to the appointment of Matt Whitaker as acting attorney general.

President Donald Trump appointed him on Nov. 7, shortly after Attorney General Jeff Sessions announced that he was stepping down at the president's request. Whitaker had been serving as chief of staff to Sessions.

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Opponents of his appointment said he was not qualified for the position because he had not been subject to Senate confirmation. Their vehicle for the challenge was a pending case against the attorney general, who was Sessions when the case was filed in June. The challengers asked the justices to rule that the name on the case should be changed to Rod Rosenstein, who they said is actually the acting attorney general.

The Supreme Court case was originally brought by a Nevada man, Barry Michaels, who asked the justices to rule that the right to own a gun should not be taken away from someone convicted of certain nonviolent felonies.

On Monday, in a brief order, the court denied the motion to take Whitaker's name off the case and also said it would not hear the Michaels gun case.

A similar challenge to the Whitaker appointment is pending in federal court in Maryland.

The Trump administration has vigorously defended Whitaker's appointment. An opinion from the Justice Department's Office of Legal Counsel said the government has identified over 160 times throughout U.S. history when presidents appointed non-Senate-confirmed government officials to serve in high level positions. In recent years, the opinion said, such appointments were made by Presidents George W. Bush and Barack Obama.

The opinion said that while courts have held that the Constitution requires principal officers to be confirmed by the Senate, "it does not follow that Acting Attorney General should be understood to be one," because the person appointed to serve in that capacity is not in a "continuing and permanent" position.