Given acting Attorney General Matt Whitaker's already questionable track record on the Mueller investigation-among other issues-it was already an issue that President Trump had appointed someone who wasn't in the line of succession to the most powerful seat in the Justice Department.
Richard Blumenthal of Connecticut, Mazie Hirono of Hawaii, and Sheldon Whitehouse of Rhode Island filed the suit on November 19, arguing that Whitaker's appointment violates the Constitution because he hasn't yet been confirmed by the Senate. "President Trump is denying Senators our constitutional obligation and opportunity to do our job: scrutinizing the nomination of our nation's top law enforcement official". Trump referred to Schiff as "little Adam Schitt" in a profane, misleading tweet comparing Whitaker's appointment to that of Robert Mueller leading the Special Counsel investigation into Russian interference in the Trump campaign. Check back for updates.
Normally Rosenstein, who has gone through Senate confirmation, would have been made acting attorney general until a new nominee could be vetted.
Senator Whitehouse added that the "stakes are too high to allow the president to install an unconfirmed lackey to lead the Department of Justice, a lackey whose stated objective, apparently, is undermining a major investigation into the president.Unless the courts intercede".
The Constitution's Appointments Clause requires that the Senate confirm high-level federal government officials, including the Attorney General, before they exercise the duties of the office.
With the new lawsuit, there's a chance that Democrats could fight back against President Trump's latest attempt to rein in the Mueller investigation.
It argues that the appointment of Whitaker violates the Constitution because he has not been confirmed by the Senate.
Earlier this month, a panel of three D.C. Circuit Court of Appeals judges presiding over the case heard opening arguments in the matter just 24 hours after President Donald Trump's dismissal of Attorney General Jeff Sessions. His appointment leap-frogged Deputy Attorney General Rod Rosenstein, which also gave Whitaker control over the Mueller investigation that had previously been supervised by Rosenstein.
The Department of Justice, for its part, has argued that Whitaker is able to serve in the role.
"There are over 160 instances in American history in which non-Senate confirmed persons performed, on a temporary basis, the duties of a Senate-confirmed position", the DOJ said in the statement.
Whitaker has criticized the Mueller probe on multiple occasions, writing in an opinion piece for CNN that it was "going too far" and that Trump's personal finances should be considered off-limits. The designation is consistent with an opinion the department issued in 2003 and with "two centuries of practice". "I think he's astute politically".
"Installing Matthew Whitaker so flagrantly defies constitutional law that any viewer of School House Rock would recognize it", Blumenthal said in a written statement.
"I hope it solves the problem, if it doesn't, you know, I'll be told and we'll make a decision at that time", Trump said.