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Adam Schiff: Democrats will challenge ‘unconstitutional’ Whitaker appointment

Washington Examiner logo Washington Examiner 11/18/2018 Kelly Cohen
Adam Schiff wearing a suit and tie: Rep. Adam Schiff, D-Calif., ranking member of the House Intelligence Committee, accompanied by House Minority Leader Nancy Pelosi of Calif. and other congress members speaks during a news conference about President Donald Trump's meeting with Russian President Vladimir Putin at Capitol Hill in Washington on Tuesday, July 17, 2018. © (AP Photo/Jose Luis Magana) Rep. Adam Schiff, D-Calif., ranking member of the House Intelligence Committee, accompanied by House Minority Leader Nancy Pelosi of Calif. and other congress members speaks during a news conference about President Donald Trump's meeting with Russian President Vladimir Putin at Capitol Hill in Washington on Tuesday, July 17, 2018.

The likely next chairman of the House Intelligence Committee said the Democrats are poised and ready to challenge the appointment of acting Attorney General Matt Whitaker.

“I think the appointment is unconstitutional. He is clearly a principle officer and the fact that he is a temporary principle officer doesn’t mean that that is any less subject to Senate confirmation,” Rep. Adam Schiff, D-Calif, told Martha Raddatz on ABC’s “This Week” Sunday morning.

When asked if Democrats — who take control of the House in January — will challenge Whitaker’s appointment and if they are concerned about his oversight of special counsel Robert Mueller, Schiff responded in the affirmative.

“Yes and yes,” said Schiff.

The Justice Department gave a green light on Wednesday to President Trump's appointment of Whitaker as acting attorney general in an opinion from the Office of Legal Counsel.

Rather than appoint Deputy Attorney General Rod Rosenstein, the Justice Department's second-highest official, Trump invoked a provision in the Federal Vacancies Reform Act to appoint Whitaker. Rosenstein had overseen the Mueller probe since March 2017, when then-Attorney General Jeff Sessions recused himself due to his involvement with Russian officials while being part of Trump's presidential campaign.

The OLC opinion says Whitaker could was be installed as acting attorney general under the VRA because “he had been serving in the Department of Justice at a sufficiently senior pay level for over a year.”

The VRA also allows the president to use the law to “depart from the succession order specified” under a Justice Department succession statute, the opinion said.

But Schiff disputed the OLC opinion.

"But it's also in conflict with a more specific statute," Schiff said. "There's a succession statute for the Justice Department, which makes it different from other departments."

The succession statute should have not been used by the president before the appointment, Schiff argued.

"So it's a flawed appointment, but the biggest flaw from my point of view is that he was chosen for the purpose of interfering with the Mueller investigation," Schiff said.

Congressional Democrats, including a swath of incoming House committee chairs including Schiff, have said once the party takes the majority in early January, they will hit Whitaker and the Trump administration with documents requests and orders to testify before Congress.

In 2017, Whitaker questioned and criticized the Mueller probe, going as far as to describe how he would shut it down if he became attorney general. In addition to concern about his commentary about the Russia inquiry, Democrats don't like that Whitaker has not been confirmed by the Senate.

Democrats will “expose” whatever Whitaker does to Mueller, Schiff said.

“He needs to know that if he takes any action to curb what Mr. Mueller does, we’re going to find out about it. We’re going to expose it. And I would certainly call on my colleagues right now to avoid the constitutional crisis, take action now, speak out against this appointment,” he said.

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