A year ago, Matthew Whitaker was a failed Iowa Senate candidate whose biggest talking point was that he was also a failed candidate for Iowa treasurer. In between his bouts of not-winning as a candidate, Whitaker sent threatening letters to protect his role in a 100 percent-scam “patent” company that sucked people’s life savings away for zero return. Then Whitaker wrote a USA Today editorial attacking special counsel Robert Mueller, and began making appearances on CNN as an anti-Mueller “expert.” Fast forward, and Trump pointed at Whitaker as the man to stick his pinky toe into the tiny shoes left behind by fired Attorney General Jeff Sessions.
But from the moment Sessions moved out and left Whitaker in charge of the Mueller investigation, there have been questions about the constitutionality of Whitaker’s appointment.
Because the AG is a principal officer, and because Whitaker has not been vetted by the Senate, Whitaker’s appointment is unconstitutional. Neal Katyal and George Conway III, somehow still husband to Kellyanne Conway, wrote a lengthier New York Times opinion piece arguing just that, quite persuasively.
Court challenges have been promised on several fronts, and one of those is already moving forward. As the New York Times reports, the state of Maryland filed in federal court on Tuesday asking for an injunction that would remove Whitaker from the role of acting attorney general and require that he be replaced by someone who has faced approval by the Senate. The obvious replacement would be deputy attorney general Rod Rosenstein who was supervising the Mueller investigation until Whitaker took control.
The filing from Maryland insists that Trump cannot “bypass the Constitution.”
Plaintiff seeks to restrain and enjoin defendants from answering the complaint and proceeding in this case with former Chief of Staff to the Attorney General Matthew G. Whitaker appearing in the official capacity of the Acting Attorney General. Additionally, plaintiff seeks to substitute Deputy Attorney General Rod J. Rosenstein as Acting Attorney General in his official capacity in place of former Attorney General Jefferson B. Sessions III, under Federal Rule of Civil Procedure 25.
But though Donald Trump gave Whitaker the “I don’t know him” treatment when the first stories of the acting attorney general’s shady not-so-past began to hit the headlines, the White House seems to have locked in on a Whitaker strategy that’s identical to the strategy for dealing with anything else: Just wait for the press to be distracted by the next scandal.
By this point, Trump’s Gish Gallop is more or less self-sustaining. They count on the fact that 99.9 percent of reporting resources are aimed at the latest object to enter the field of view. That allows them to treat any issue from Ryan Zinke to Mohammed bin Salman to Matthew Whitaker the same way—just wait it out. Trump can mouth a few words of almost-concern at the height of the camera’s focus on a story. It doesn’t really matter, since he can deny it a week—or even a day—later.
That’s what makes the court filings around Whitaker particularly important. It’s not up to Trump to replace the acting attorney general because he feels some sense of pressure. It’s going to be decided in court.
The Maryland case is just one of several similar cases being directed at Whitaker’s appointment. Even if this case should fail, don’t expect it to be the last word.